MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representatives Chaney, Saucier

AN ACT TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO LIMIT PUNITIVE DAMAGES AWARDS AND TO CREATE EXCEPTIONS TO THOSE LIMITATIONS; TO LIMIT RECOVERY OF NONECONOMIC DAMAGES; TO DEFINE "ECONOMIC" AND "NONECONOMIC" DAMAGES; TO AMEND SECTION 11-7-13, MISSISSIPPI CODE OF 1972, TO LIMIT RECOVERY OF NONECONOMIC AND PUNITIVE DAMAGES IN A WRONGFUL DEATH ACTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 11-1-65, Mississippi Code of 1972, is amended as follows:

11-1-65. (1) In any action in which punitive damages are sought:

(a) Punitive damages may not be awarded if the claimant does not prove beyond a reasonable doubt that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.

(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.

(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.

(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.

(e) In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing at the time and under the circumstances when it was committed, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; whether the defendant's conduct is found to have caused harm to the plaintiff is at present continuing with respect to the plaintiff or other individuals; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.

(f) (i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.

(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:

1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred;

2. The degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct;

3. The financial condition and net worth of the defendant; and

4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct.

(g) The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.

(h) No award of punitive damages shall exceed the greater of five (5) times the amount of total economic damages awarded to the plaintiff in the action or Two Hundred Fifty Thousand Dollars ($250,000.00). "Economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of past, present or future earnings or earning capacity, loss of past, present or future income or profits, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. Economic damages do not mean damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, loss of enjoyment of life, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages which are not objectively verifiable; they also do not include any punitive damages.

(i) Except as may be otherwise provided in paragraph (j) of this subsection, only one (1) award for punitive damages may be made against a defendant for the same act, decision, omission or course of conduct. In any action for harm caused by any defect in a product, punitive damages may not be awarded against a defendant if such damages have been awarded in any prior action against that defendant for the same defect. For purposes of this section, identical defects in individual units of a manufacturer's products shall be deemed to be the same defect.

(j) The provision limiting awards for punitive damages as described in paragraph (i) shall not apply if the claimant proves beyond a reasonable doubt that new evidence concerning the defendant's conduct justifies an award of additional punitive damages. New evidence means evidence not available to the claimant in the first action in which punitive damages were awarded.

(k) Except as otherwise provided in paragraph (m) of this section, punitive damages shall not be awarded against a defendant for any activity which is subject to regulation by any agency of the United States or the State of Mississippi, if the regulated activity was in compliance with applicable regulations of the United States and this state.

(l) Except as otherwise provided in paragraph (m) of this section, punitive damages shall not be awarded against a manufacturer or product seller if the aspect of the product's manufacture, design, formulation, inspection, testing, packaging, labeling or warning which caused the claimant's harm complied with:

(i) Any federal statute in effect at the time the product was produced;

(ii) Any administrative regulation in effect at the time the product was produced that was promulgated by an agency of the federal government which had responsibility to regulate the safety of the product or to establish safety standards for the product pursuant to a federal statute;

(iii) Any approval or certification made by an agency of the federal government before the product was marketed; or

(iv) Any state or local statute, ordinance, agency regulation or agency certification applicable to the place where the harm to the plaintiff allegedly occurred.

(m) The prohibition against awarding punitive damages in the circumstances described in paragraph (k) or (l) of this subsection shall not apply when the plaintiff proves beyond a reasonable doubt that the defendant:

(i) Knowingly and in violation of applicable state or federal agency regulations withheld or misrepresented information required to be submitted to the agency, which information was material and relevant to the harm in question; or

(ii) Made an illegal payment to an official of the federal agency for the purpose of securing approval of the activity or product as described in paragraph (1)(iii) of this subsection.

(2) In any action for either wrongful death pursuant to Section 11-7-13, or personal injury, the prevailing plaintiff may be awarded compensatory damages for economic damages incurred by the injured plaintiff, and noneconomic damages suffered by the injured plaintiff not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00).

(a) "Economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of past, present or future earnings or earning capacity, loss of past, present or future income or profits, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.

(b) "Noneconomic damages" means damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, loss of enjoyment of life, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages which are not objectively verifiable. It does not include any punitive damages.

(3) When an attorney is compensated on a contingent fee basis in any action for either personal injury or wrongful death, the contingent fees shall not exceed forty percent (40%) of the first Fifty Thousand Dollars ($50,000.00) recovered; Thirty-three and one-third percent (33-1/3%) of the next Fifty Thousand Dollars ($50,000.00) recovered; Twenty-five percent (25%) of the next Five Hundred Thousand Dollars ($500,000.00) recovered; and Fifteen percent (15%) of any amount recovered in excess of Six Hundred Thousand Dollars ($600,000.00). These limitations shall apply whether the recovery of damages is by settlement, arbitration, mediation or judgment, or whether the person for whom the recovery is made is an adult, a minor or a person of unsound mind. The amount recovered shall be computed by first deducting all disbursements for litigation expenses incurred in connection with the filing and prosecution of a personal injury action, and the final contingent fee shall be calculated on the aggregate sum of that amount, regardless of the number of personal injury claimants.

SECTION 2. Section 11-7-13, Mississippi Code of 1972, is amended as follows:

11-7-13. Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. In no event shall any noneconomic damages awarded under this section exceed Two Hundred Fifty Thousand Dollars ($250,000.00). In no event shall any punitive damages awarded under this section exceed the greater of five (5) times the amount of the total of economic damages awarded to plaintiff or Two Hundred Fifty Thousand Dollars ($250,000.00).

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.

Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full blood and had been born to the adopting parents in lawful wedlock.

Notwithstanding any other statute or provision of law, all actions for injuries producing death shall be filed in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue. For purposes of this section, an action for injuries producing death occurs or accrues in the county in which the defendant or defendants committed the real, wrongful or negligent act or omission, whether the resulting death occurred in that county or not.

SECTION 2. The provisions of this act are remedial in nature and shall be applied to all causes of action pending or filed on or after July 1, 1999, including matters on appeal.