MISSISSIPPI LEGISLATURE
2002 3rd Extraordinary Session
To: Select Committee on Civil Justice Reform
By: Representative Eads
AN ACT TO AMEND SECTIONS 11-11-3, 11-11-5, 11-11-7, 11-11-11 AND 11-11-13, MISSISSIPPI CODE OF 1972, TO REVISE VENUE IN CIVIL ACTIONS; TO AMEND SECTION 11-1-62, MISSISSIPPI CODE OF 1972, TO PROVIDE PROTECTION FOR PHARMACISTS AND LICENSED PHARMACIES IN DRUG SUITS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; TO PROVIDE IMMUNITY FOR PROPERTY OWNERS IN PREMISES LIABILITY ACTIONS; TO REQUIRE THAT CERTAIN ACTIONS FOR DAMAGES AND OTHER RELIEF AGAINST FIREARMS OR AMMUNITION MANUFACTURERS, DISTRIBUTORS OR SELLERS THEREOF MAY ONLY BE BROUGHT BY THE STATE OR ITS POLITICAL SUBDIVISIONS; TO PROVIDE AN ASSESSMENT FOR FILING FRIVOLOUS CLAIMS; TO PROHIBIT ATTORNEY ADVERTISING BY ATTORNEYS NOT ADMITTED TO PRACTICE IN MISSISSIPPI; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE JOINT AND SEVERAL LIABILITY IN CERTAIN CIVIL ACTIONS; TO PROVIDE THAT CERTAIN INFORMATION REGARDING A DEFECTIVE PRODUCT, FINANCIAL FRAUD, UNFAIR INSURANCE CLAIMS PRACTICES OR ENVIRONMENTAL HAZARD SHALL BE PRESUMED TO BE PUBLIC INFORMATION; TO ALLOW SUCH INFORMATION TO BE KEPT CONFIDENTIAL BY COURT ORDER; TO DEFINE CERTAIN TERMS; TO AMEND SECTIONS 75-26-5, 75-26-11 AND 75-26-15, MISSISSIPPI CODE OF 1972, TO CONFORM TO SUCH PROVISION THAT SUCH INFORMATION IS PRESUMED TO BE PUBLIC; TO LIMIT THE LIABILITY OF THE SPONSOR OR ADVERTISER OF AN EVENT IN THE CASE OF A CIVIL ACTION ARISING OUT OF ACTIVITIES OCCURRING ON THE PREMISES OF THE LOCATION WHERE THE EVENT IS HELD OR CONDUCTED, PROVIDED THAT THE SPONSOR OR ADVERTISER DOES NOT EXERCISE CONTROL OVER ANY ASPECT OF THE EVENT OTHER THAN ACTING AS SPONSOR OR ADVERTISER; TO DEFINE THE TERMS "SPONSOR" AND "EVENT"; TO PROVIDE THAT THIS LIMITATION OF LIABILITY SHALL NOT EXTEND TO WILLFUL ACTS OR GROSS NEGLIGENCE ON THE PART OF A SPONSOR; TO CREATE NEW SECTION 11-7-30, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CIVIL ACTIONS IN CIRCUIT COURT SHALL NOT BE ASSIGNED TO A JUDGE UNTIL AT LEAST ONE DEFENDANT HAS FILED A RESPONSIVE PLEADING; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO IMPOSE A LIMITATION ON PUNITIVE DAMAGES AGAINST A BUSINESS; TO PROVIDE THAT THE LIMITATION SHALL NOT APPLY IN CERTAIN CASES; TO AMEND SECTION 75-67-103, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS UNDER THE SMALL LOAN REGULATORY LAW TO INCLUDE DEFINITIONS FOR THE TERMS "OTHER CHARGES," "CONSUMER LOAN," AND "CONSUMER"; TO AMEND SECTIONS 75-67-119 AND 75-17-25, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REMEDIES, PENALTIES AND DAMAGES FOR CONTRACTING FOR AND RECEIVING UNLAWFUL OTHER CHARGES IN CONNECTION WITH CONSUMER LOANS; TO PROVIDE FOR DOUBLE PENALTY AMOUNTS IF OTHER CHARGES ARE CONTRACTED FOR OR RECEIVED BY ACTUAL FRAUD; TO PROVIDE FOR THE RECOVERY OF ATTORNEY'S FEES IF PENALTIES ARE RECOVERED; TO PROVIDE THAT THE REMEDIES, PENALTIES AND DAMAGES PROVIDED FOR UNDER THIS ACT ARE EXCLUSIVE; TO PROVIDE FOR A ONE-YEAR STATUTE OF LIMITATIONS ON FILING ACTIONS FOR RECOVERY OF PENALTIES OR DAMAGES UNDER THIS ACT; TO PROVIDE THAT THE PROVISIONS OF THIS ACT SHALL STAND REPEALED ON JULY 1, 2004; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-11-3, Mississippi Code of 1972, as amended by House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
11-11-3. (1) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant resides 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, except where otherwise provided, and except actions of trespass on land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof is situated.
(2) Any action against a licensed physician, osteopath, dentist, nurse, nurse practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought in the county in which the alleged act or omission occurred.
(3) Any cause of action arising from another state which has no legal nexus to the State of Mississippi may not be brought in a state court.
(4) If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.
SECTION 2. Section 11-11-5, Mississippi Code of 1972, is amended as follows:
11-11-5. Actions against any railroad, express, steamboat, power, superpower, telegraph or telephone corporation, or against individuals owning, managing, operating or controlling a railroad, express line or route, steamboat, power, superpower, telephone or telegraph line, or against any corporation or individuals owning, managing, operating or controlling a motor transportation line for the conveyance of passengers, freight or express, for hire, over the highways in the State of Mississippi, may be brought in the county where the cause of action accrued or in the county where the defendant has its principal place of business * * * at the time that the cause of action accrued.
SECTION 3. Section 11-11-7, Mississippi Code of 1972, is amended as follows:
11-11-7. Actions against insurance companies, groups of insurance companies or an insurance association may be brought in any county in which a loss may occur, or, if on a life policy, in the county in which the beneficiary resides, and process may be sent to any county, to be served as directed by law. Such actions may also be brought in the county where the principal place of business of such corporation or company may be. In case of a foreign corporation or company, such actions may be brought in the county where service of process may be had on an agent of such corporation or company or service of process in any suit or action, or any other legal process, may be served upon the Insurance Commissioner of the State of Mississippi, and such notice will confer jurisdiction on any court in any county in the state where the suit is filed, provided the suit is brought in the county where the loss occurred * * *.
SECTION 4. Section 11-11-11, Mississippi Code of 1972, is amended as follows:
11-11-11. Any civil action for the recovery of damages brought against a nonresident or the representative of the nonresident in the State of Mississippi may be commenced in the county in which the action accrued * * *, except as otherwise provided by law.
SECTION 5. Section 11-11-13, Mississippi Code of 1972, is amended as follows:
11-11-13. The venue of an action for damages brought against a nonresident arising from his operation, either in person or by agent or employee, of a motor vehicle upon any public street, road, or highway of this state, or elsewhere in this state, shall be * * * in the county where the cause of action accrued orwhere the plaintiff resides.
SECTION 6. Section 11-1-62, Mississippi Code of 1972, as codified in House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
11-1-62. In any civil action alleging damages caused by a prescription drug that has been approved by the federal Food and Drug Administration, a physician, optometrist, pharmacist, licensed pharmacy, nurse practitioner or physician assistant may not be sued unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to immunize innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits.
SECTION 7. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. Notwithstanding the provisions of Section 11-1-62, in any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer, or seller, dispenser or prescriber of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, or seller, dispenser or prescriber:
(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.
(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer, or seller, dispenser or prescriber shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, dispenser or prescriber, the manufacturer or seller, dispenser or prescriber knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.
(d) For purposes of this section:
(i) "Seller" means any person or entity that sells products of any kind.
(ii) "Prescriber" means any person licensed by the State of Mississippi to prescribe medicine.
(iii) "Dispenser" means any person or entity licensed as a pharmacist or pharmacy.
(e) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, seller, dispenser or prescriber shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(f) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, dispenser or prescriber shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.
(g) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The manufacturer, seller, dispenser or prescriber knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.
(h) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller, dispenser or prescriber for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller, dispenser or prescriber 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, dispenser or prescriber 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, dispenser or prescriber had actual knowledge of the defective condition of the product at the time he supplied same; or the seller, dispenser or prescriber made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(ii) Subparagraph (i) shall not apply unless the seller has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller. The provision of this subparagraph shall not conflict with the Mississippi Rules of Civil Procedure.
(i) With respect to manufacturers of drugs or medical devices, an agent or employee of such manufacturer who directly participates in or authorizes the commission of a tort, shall be subject to liability for any individual act of negligence committed by said agent or employee related to said drugs or medical devices within the course and scope of employment.
(j) It is the intent of this section to immunize innocent medical providers including pharmacists and licensed pharmacies who are not actively negligent from forum-driven lawsuits.
(k) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 8. (1) The authority to bring an action against any firearms or ammunition manufacturer, distributor or dealer duly licensed under federal law on behalf of any governmental entity created by or pursuant to an act of the Mississippi Legislature or the Mississippi Constitution of 1890, or any department, agency or authority thereof, for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to the lawful design, manufacture, distribution or sale of firearms, firearm components, silencers, ammunition or ammunition components to the public, shall be exclusively reserved to the state. This section shall not prohibit a political subdivision from bringing an action against a firearm or ammunition manufacturer, distributor or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship.
(2) This section shall apply to any action brought on or after passage of this act.
(3) "Political subdivision" and "governmental entity" shall have the meanings ascribed in Section 11-46-1.
SECTION 9. No owner, occupant, lessee or managing agent of property shall be civilly liable for the criminal acts of a third party, unless such owner, occupant, lessee or managing agent knew or, with the exercise of reasonable diligence, should have known of the risk of criminal conduct on or around such property and the failure to take reasonable measures to deter such foreseeable conduct is a proximate cause of damages to an individual or entity.
SECTION 10. If a party files any pleading in a civil action, which in the opinion of the court is frivolous, the court may impose an assessment of not more than One Thousand Dollars ($1,000.00) against each attorney of record for the party filing the pleading. Such assessment shall be in addition to any other assessments, penalties or sanctions authorized by law or otherwise. The proceeds of any assessment imposed under this section shall be paid to the Mississippi Volunteer Lawyers Project, Inc.
SECTION 11. The Legislature recognizes that attorneys should be licensed by the Mississippi Bar before engaging in any solicitation of clients in this state. Such licensing of attorneys protects the people of Mississippi in that the Mississippi Bar has direct jurisdiction over attorneys licensed by it. The Bar can act against such licensed attorneys in the event that such licensed attorneys commit violations of Mississippi law, court rules and rules of ethics for attorneys. The Legislature finds that this section is necessary for the protection of the people of Mississippi. An attorney who is not admitted to the Mississippi Bar shall not advertise his legal services in this state for the purpose of soliciting prospective clients for the commencing of any civil action in this state, or for the purpose of soliciting clients for any civil action already commenced or pending in this state, unless the attorney who is not a member of the Mississippi Bar has associated an attorney who (a) is a member of the Mississippi Bar; and (b) will be associated and actively working on substantial aspects in any civil action filed on behalf of a client solicited as a result of the advertisement. A law firm composed of both attorneys who are members of the Mississippi Bar and attorneys who are not members of the Mississippi Bar may advertise in this state if a majority of the members of the firm are members of the Mississippi Bar. For purposes of this section, a listing in the residential or business section of the white pages of a telephone book shall not be an advertisement.
SECTION 12. Section 85-5-7, Mississippi Code of 1972, as amended by House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent.
(2) Except as may be otherwise provided in subsections (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.
(3) Except as otherwise provided in subsections (2), (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tort-feasors. A defendant shall be held responsible for contribution to other joint tort-feasors only for the percentage of fault assessed to such defendant.
(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(6) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.
(8) Except as provided in subsection (6) of this section, in any action involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each joint tort-feasor, including named parties and absent tort-feasors, without regard to whether the joint tort-feasor is immune from damages. For noneconomic damages, a defendant's liability shall be several only. For economic damages, for any defendant whose fault is determined to be less than thirty percent (30%), liability shall be several only and for any defendant whose fault is determined to be thirty percent (30%) or more, liability shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
(9) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
Notwithstanding any other provisions of law to the contrary, the doctrine of joint and several liability shall not be limited as to tortious conduct which injures the health or safety of Mississippi residents by manufacture or distribution of a drug or defective or dangerous substance causing injury to Mississippi residents or which constitutes fraud.
SECTION 13. (1) Notwithstanding any other provision of law, in an action based upon injury, wrongful death, or financial loss allegedly caused by a defective product, financial fraud, unfair insurance claims practice or environmental hazard, other than any action classified by a court as a mass tort action, information concerning the defective product, financial fraud, unfair insurance claims practice or environmental hazard, which is contained in a settlement agreement pertaining to the action and not filed with the court shall be presumed to be public information and may not be kept confidential pursuant to agreement of the parties. This information may be kept confidential for a period that the court deems appropriate only pursuant to a court order.
(2) As used in this section:
(a) "Defective product" means a product that may be defective because of a defect in manufacturing or design or a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product, where the defect may result in personal injury to one or more persons.
(b) "Financial fraud" means any fraudulent insurance practice or any fraudulent plan or scheme to sell a publicly offered investment product without full disclosure of the risks associated with the purchase of the product, where the plan or scheme may cause or has caused financial loss.
(c) "Environmental hazard" means a release or threatened release of a hazardous substance that poses a threat to public health or safety involving present or future danger of death, bodily injury or health disability to human beings exposed to a hazardous substance release or threatened release.
SECTION 14. Section 75-26-5, Mississippi Code of 1972, is amended as follows:
75-26-5. (1) Except as provided in Section 12 of House Bill No. , Third Extraordinary Session 2002, actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
(2) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
(3) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
SECTION 15. Section 75-26-11, Mississippi Code of 1972, is amended as follows:
75-26-11. Except as provided in Section 12 of House
Bill No. , Third Extraordinary Session 2002, in an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
SECTION 16. Section 75-26-15, Mississippi Code of 1972, is amended as follows:
75-26-15. (1) Except as provided in subsection (2), this chapter displaces conflicting tort, restitutionary and other law of this state providing civil remedies for misappropriation of a trade secret.
(2) This chapter does not affect:
(a) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(b) Other civil remedies that are not based upon misappropriation of a trade secret; * * *
(c) Criminal remedies, whether or not based upon misappropriation of a trade secret; or
(d) The provisions of Section 12 of House Bill No. , Third Extraordinary Session 2002.
SECTION 17. For purposes of Sections 16 and 17 of this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Sponsor or advertiser" means any person, corporation or legal entity which, solely for charitable purposes, (i) sells, rents, manufactures or provides products, equipment or promotional materials, or (ii) donates or contributes money or fees, in order that an event may be held or conducted.
(b) "Event" means a concert, benefit, fund-raiser, auction or other occasion at which entertainment, food and beverages are provided to persons.
SECTION 18. (1) Any sponsor or advertiser of an event, which does not exercise control over any aspect of the event other than acting as a sponsor or advertiser, shall be immune from liability for any civil action arising out of activities occurring on the premises of the location where the event is held or conducted.
(2) No sponsor or advertiser shall be liable to a person who may lawfully consume any intoxicating beverage for any injury suffered by such person, or by any other person, off the premises of the event, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished when on the premises of the event.
(3) This section shall not extend immunity to willful acts or gross negligence on the part of a sponsor or advertiser; however, the sponsor or advertiser shall not be considered to be a part of a joint venture or the principal of an agent, with regard to any other person, corporation or legal entity which is participating in the event in any capacity other than that of sponsor or advertiser.
SECTION 19. The following shall be codified as Section 11-7-30, Mississippi Code of 1972:
11-7-30. Civil actions in circuit court shall not be assigned to a judge until at least one (1) defendant has filed a responsive pleading.
SECTION 20. 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 by clear and convincing evidence 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, 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; 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.
(2) 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.
(3) In a civil action against a business where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed ten percent (10%) of the net worth of the business, unless the finder of fact and court find by clear and convincing evidence that the defendant acted with criminal intent to cause serious physical bodily injury. This restriction shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict. The limitations in damages to civil actions seeking punitive damages as provided for in this subsection shall not apply to civil actions seeking punitive damages for breach of fiduciary duty or for action against businesses while engaged in core business activities of money management, providing legal or accounting services, stock or bond brokerage, management of retirement accounts or for those engaged in conduct constituting a crime or for those engaged in conduct which constitutes abuse, exploitation or willful neglect of a vulnerable adult, as those terms are defined in the Mississippi Vulnerable Adult Act.
(4) Nothing herein shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order additur or remittitur where appropriate.
(5) Subsections (1) and (2) of Section 11-1-65 shall not apply to:
(a) Contracts;
(b) Libel and slander; or
(c) Causes of action for persons and property arising out of asbestos.
SECTION 21. Section 75-67-103, Mississippi Code of 1972, is amended as follows:
75-67-103. (1) The following words and phrases, when used in this article, shall, for the purposes of this article, have the meanings respectively ascribed to them in this section, except where the context clearly describes and indicates a different meaning:
(a) "Person" means and includes every natural person, firm, corporation, copartnership, joint-stock or other association or organization, and any other legal entity whatsoever.
(b) "Licensee" means and includes every person holding a valid license issued under the provisions of the Small Loan Privilege Tax Law [Sections 75-67-201 through 75-67-243] of this state, except those specifically exempt by the provisions of this article, who, in addition to any other rights and powers he or it might otherwise possess, shall engage in the business of lending money either directly or indirectly, to be paid back in monthly installments or other regular installments for periods of more or less than one (1) month, and whether or not the lender requires security from the borrower as indemnity for the repayment of the loan.
(c) "Occasional lender" means a person making not more than one (1) loan in any month or not more than twelve (12) loans in any twelve-month period.
(d) "Commissioner" means the Commissioner of Banking and Consumer Finance of the State of Mississippi.
(e) "Department" means the Department of Banking and Consumer Finance of the State of Mississippi.
(f) "Records" or "documents" means any item in hard copy or produced in a format of storage commonly described as electronic, imaged, magnetic, microphotographic or otherwise, and any reproduction so made shall have the same force and effect as the original thereof and be admitted in evidence equally with the original.
(g) "Other charges" means any amounts contracted for or received by any licensee or other person in connection with a loan, other than finance charges as defined in Section 75-17-25.
(h) "Consumer loan" means any loan or extension of credit in the principal amount of Twenty Thousand Dollars ($20,000.00) or less offered or extended primarily for personal, family or household purposes.
(i) "Consumer" means any natural person who is obligated on any consumer loan.
(2) Paragraphs (g) through (i) of subsection (1) of this section shall stand repealed on July 1, 2004; however, the provisions of paragraphs (g) through (i) of subsection (1) of this section shall remain in full force and effect with respect to any loan agreement that is entered into before July 1, 2004.
SECTION 22. Section 75-67-119, Mississippi Code of 1972, is amended as follows:
75-67-119. (1) If any finance charge in excess of that expressly permitted by Section 75-17-21 is contracted for or received, all finance charges and other charges shall be forfeited and may be recovered, whether the contract be executed or executory. If any finance charge is contracted for or received that exceeds the maximum finance charge authorized by law by more than one hundred percent (100%), the principal and all finance charges and other charges shall be forfeited and any amount paid may be recovered by suit; and, in addition, the licensee and the several members, officers, directors, agents, and employees thereof who shall have participated in such violation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) and not less than One Hundred Dollars ($100.00), in the discretion of the court; and, further, the Commissioner of Banking and Consumer Finance shall forthwith cite such licensee to show cause why its license should not be revoked and proceedings thereon shall be as is specifically provided in the Small Loan Privilege Tax Law (Sections 75-67-201 through 75-67-243).
(2) If,in connection with a consumer loan, any licensee or other person contracts for or receives, or participates in contracting for or receiving, other charges in violation of any applicable statutory or common law duty, or which are otherwise unlawful, then all those unlawful other charges, all finance charges and all principal shall be forfeited and may be recovered by the consumer, by suit or other proceeding, whether the contract is executed or executory. However, no person who contracts for or receives other charges in violation of any applicable statutory or common law duty, or otherwise unlawfully, shall be subject to forfeiture of principal if the person shows by a preponderance of the evidence that those other charges were contracted for or received unintentionally and as a result of a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation. Examples of bona fide errors include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to applicable statutory or common law duty is not a bona fide error.
(3) If the other charges subject to forfeiture under this section are found to have been contracted for or received by actual fraud, any penalty recovered under subsection (2) of this section shall be doubled.
(4) If a consumer recovers any penalty provided for under subsection (2) of this section, the consumer also may recover damages, to the extent proven by competent evidence, subject to the following limitations:
(a) If the amount of the unlawful other charges is One Hundred Dollars ($100.00) or less, the maximum amount of damages that may be recovered by the consumer as to each individual loan is Three Thousand Dollars ($3,000.00).
(b) If the amount of the unlawful other charges is more than One Hundred Dollars ($100.00) but less than One Thousand Dollars ($1,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Fifteen Thousand Dollars ($15,000.00).
(c) If the amount of the unlawful other charges is not less than One Thousand Dollars ($1,000.00) but less than Two Thousand Dollars ($2,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Thirty Thousand Dollars ($30,000.00).
(d) If the amount of the unlawful other charges is not less than Two Thousand Dollars ($2,000.00) but less than Five Thousand Dollars ($5,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Forty-five Thousand Dollars ($45,000.00).
(e) If the amount of the unlawful other charges is not less than Five Thousand Dollars ($5,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Sixty Thousand Dollars ($60,000.00).
(5) If any penalty is recovered under subsection (2) of this section, a reasonable attorney’s fee also shall be recovered from the offending party by the consumer.
(6) Except as provided in subsection (7) of this section, the remedies, penalties and damages provided for in this section shall be the exclusive remedies, penalties and damages for contracting for or receiving any finance charge in excess of that expressly permitted by Section 75-17-21, or for contracting for or receiving, or participating in contracting for or receiving, other charges in violation of any applicable statutory or common law duty, or which are otherwise unlawful.
(7) The remedies, penalties and damages provided for in this section are supplemental to the defense provided in Section 75-67-127(3) and to the enforcement powers conferred upon the Commissioner of Banking and Consumer Finance.
(8) No action for recovery of any penalty or damages provided for under this section may be brought unless it is filed within one (1) year after the date of the act or event that created the cause of action. However, if the act or event that created the cause of action occurred before the effective date of House Bill No. , Third Extraordinary Session 2002, no action for recovery of any penalty or damages provided for under this section based on that cause of action may be brought unless it is filed within one (1) year after the effective date of House Bill No. , Third Extraordinary Session 2002.
(9) Subsections (2) through (8) of this section shall stand repealed on July 1, 2004; however, the provisions of subsections (2) through (8) of this section shall remain in full force and effect with respect to any loan agreement that is entered into before July 1, 2004.
SECTION 23. Section 75-17-25, Mississippi Code of 1972, is amended as follows:
75-17-25. (1) The term "finance charge" as used in this section, Sections 75-17-1, 75-17-11, 75-17-13, 75-17-15, 75-17-17, 75-17-19, 75-17-21, 75-17-23, 75-17-27, 75-17-29, 75-17-33, 63-19-43, 75-67-127 and 75-67-217 means the amount or rate paid or payable, directly or indirectly, by a debtor for receiving a loan or incident to or as a condition of the extension of credit, including, but not limited to, interest, brokerage fees, finance charges, loan fees, discount, points, service charges, transaction charges, activity charges, carrying charges, time price differential, finders fees or any other cost or expense to the debtor for services rendered or to be rendered to the debtor in making, arranging or negotiating a loan of money or an extension of credit and for the accounting, guaranteeing, endorsing, collecting and other actual services rendered by the lender; provided, however, that recording fees, motor vehicle title fees, attorney's fees, insurance premiums, fees permitted to be charged under the provisions of Section 79-7-7, service charges as provided in Section 81-19-31, and with respect to a debt secured by an interest in land, bona fide closing costs and appraisal fees incidental to the transaction shall not be included in the finance charge.
(2) Subject to the other provisions of this section, Sections 75-17-1, 75-17-13, 75-17-15, 75-17-17, 75-17-19, 75-17-21, 75-17-23, 75-17-27, 75-17-29, 75-17-33, 63-19-43, 75-67-127 and 75-67-217, the finance charge may be calculated on the assumption that the indebtedness will be discharged as it becomes due, and prepayment penalties and statutory default charges shall not be included in the finance charge. Nothing in Section 75-17-1 or Sections 75-17-19, 75-17-21, 75-17-23, 75-17-27, 75-17-29 or 75-17-33 shall limit or restrict the manner of contracting for such finance charge, whether by way of add-on, discount or otherwise, so long as the annual percentage rate does not exceed that permitted by law. If a greater finance charge than that authorized by applicable law shall be stipulated for or received in any case, all interest and finance charge shall be forfeited, and may be recovered back, whether the contract be executed or executory. If a finance charge be contracted for or received that exceeds the maximum authorized by law by more than one hundred percent (100%), the principal and all finance charges shall be forfeited and any amount paid may be recovered by suit. The provisions of this section, Section 75-17-1 and Sections 75-17-19, 75-17-21, 75-17-23, 75-17-27, 75-17-29 and 75-17-33 shall not restrict the extension of credit pursuant to any other applicable law. A licensee under the Small Loan Regulatory Law (Sections 75-67-101 through 75-67-135), and the Small Loan Privilege Tax Law (Sections 75-67-201 through 75-67-243), may contract for and receive finance charges as authorized by Section 75-17-21, and the late payment charge as authorized by Section 75-17-27, regardless of the purpose for which the loan or other extension of credit is made.
(3) If, in connection with a consumer loan, any person contracts for or receives, or participates in contracting for or receiving, other charges in violation of any applicable statutory or common law duty, or which are otherwise unlawful, then all those unlawful other charges, all finance charges and all principal shall be forfeited and may be recovered by the consumer, by suit or other proceeding, whether the contract is executed or executory. However, no person who contracts for or receives other charges in violation of any applicable statutory or common law duty, or otherwise unlawfully, shall be subject to forfeiture of principal if the person shows by a preponderance of the evidence that those other charges were contracted for or received unintentionally and as a result of a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation. Examples of bona fide errors include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to applicable statutory or common law duty is not a bona fide error.
(4) If the other charges subject to forfeiture under this section are found to have been contracted for or received by actual fraud, any penalty recovered under subsection (3) of this section shall be doubled.
(5) If a consumer recovers any penalty provided for under subsection (3) of this section, the consumer also may recover damages, to the extent proven by competent evidence, subject to the following limitations:
(a) If the amount of the unlawful other charges is One Hundred Dollars ($100.00) or less, the maximum amount of damages that may be recovered by the consumer as to each individual loan is Three Thousand Dollars ($3,000.00).
(b) If the amount of the unlawful other charges is more than One Hundred Dollars ($100.00) but less than One Thousand Dollars ($1,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Fifteen Thousand Dollars ($15,000.00).
(c) If the amount of the unlawful other charges is not less than One Thousand Dollars ($1,000.00) but less than Two Thousand Dollars ($2,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Thirty Thousand Dollars ($30,000.00).
(d) If the amount of the unlawful other charges is not less than Two Thousand Dollars ($2,000.00) but less than Five Thousand Dollars ($5,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Forty-five Thousand Dollars ($45,000.00).
(e) If the amount of the unlawful other charges is not less than Five Thousand Dollars ($5,000.00), the maximum amount of damages that may be recovered by the consumer as to each individual loan is Sixty Thousand Dollars ($60,000.00).
(6) If any penalty is recovered under subsection (3) of this section, a reasonable attorney’s fee also shall be recovered from the offending party by the consumer.
(7) The remedies, penalties and damages provided for in this section shall be the exclusive remedies, penalties and damages for contracting for or receiving any finance charge in excess of that permitted by applicable law, or for contracting for or receiving, or participating in contracting for or receiving, other charges in violation of any applicable statutory or common law duty, or which are otherwise unlawful.
(8) As used in this section:
(a) "Consumer loan" means any loan or extension of credit offered or extended in the principal amount of Twenty Thousand Dollars ($20,000.00) or less primarily for personal, family or household purposes.
(b) "Consumer" means any natural person obligated on any consumer loan.
(c) "Other charges" means any amounts contracted for or received by any person in connection with a consumer loan, other than finance charges as defined in this section.
(9) No action for recovery of any penalty or damages provided for under this section may be brought unless it is filed within one (1) year after the date of the act or event that created the cause of action. However, if the act or event that created the cause of action occurred before the effective date of House Bill No. , Third Extraordinary Session 2002, no action for recovery of any penalty or damages provided for under this section based on that cause of action may be brought unless it is filed within one (1) year after the effective date of House Bill No. , Third Extraordinary Session 2002.
(10) Subsections (3) through (9) of this section shall stand repealed on July 1, 2004; however, the provisions of subsections (3) through (9) of this section shall remain in full force and effect with respect to any loan agreement that is entered into before July 1, 2004.
SECTION 24. If any provision of this act is held by a court to be invalid, such invalidity shall not affect the remaining provisions of this act, and to this end the provisions of this act are declared severable.
SECTION 25. This act shall take effect and be in force from and after its passage, and shall apply only to causes of action occurring on or after that date.