MISSISSIPPI LEGISLATURE
2002 3rd Extraordinary Session
To: Select Committee on Civil Justice Reform
By: Representative Capps, Ellzey, Hamilton, Maples, Shows, Woods
AN ACT TO AMEND SECTION 11-11-3, MISSISSIPPI CODE OF 1972, AS AMENDED BY HOUSE BILL NO. 2, THIRD EXTRAORDINARY SESSION 2002, TO REVISE THE VENUE IN GENERAL CIVIL ACTIONS; TO REPEAL SECTIONS 11-11-5, 11-11-7, 11-11-11 AND 11-11-13, MISSISSIPPI CODE OF 1972, WHICH PROVIDE VENUE IN ACTIONS AGAINST NONRESIDENTS, NONRESIDENT MOTORISTS, RAILROADS AND INSURANCE COMPANIES; TO CREATE NEW SECTION 11-1-64, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PRODUCT SELLER OTHER THAN A MANUFACTURER SHALL NOT BE LIABLE FOR A LATENT DEFECT IF THE SELLER IS A MERE CONDUIT WHO PURCHASED THE PRODUCT FROM A REPUTABLE MANUFACTURER; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, AS AMENDED BY HOUSE BILL NO. 2, THIRD EXTRAORDINARY SESSION 2002, TO REVISE THE LIMITATION OF JOINT AND SEVERAL LIABILITY FOR DAMAGES CAUSED BY TWO OR MORE PERSONS; TO AMEND SECTION 7 OF HOUSE BILL NO. 2, THIRD EXTRAORDINARY SESSION 2002, TO PROVIDE LIMITATIONS ON NONECONOMIC DAMAGES IN CIVIL ACTIONS; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO IMPOSE A LIMITATION ON PUNITIVE DAMAGES AND TO PROVIDE THAT 50% OF AN AWARD FOR PUNITIVE DAMAGES SHALL BE DEPOSITED INTO THE STATE GENERAL FUND; TO LIMIT THE LIABILITY OF THE SPONSOR 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 DOES NOT EXERCISE CONTROL OVER ANY ASPECT OF THE EVENT OTHER THAN ACTING AS SPONSOR; 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 AMEND SECTION 67-3-73, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THERE IS NO LIABILITY TO A WHOLESALER OF BEER AND LIGHT WINE FOR THE LAWFUL DISTRIBUTION TO A RETAIL PERMITTEE; TO PROVIDE IMMUNITY FOR A PREMISES OWNER UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE THAT CIVIL ACTIONS SHALL NOT BE ASSIGNED TO A JUDGE UNTIL AT LEAST ONE DEFENDANT HAS FILED A RESPONSIVE PLEADING; TO PROHIBIT RECOVERY OF HEDONIC DAMAGES IN CIVIL ACTIONS; TO PROVIDE THAT PAYMENTS FROM COLLATERAL SOURCES SHALL BE REDUCED FROM AWARDS IN CIVIL ACTIONS; TO AMEND SECTION 75-67-103, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITIONS UNDER THE SMALL LOAN REGULATORY LAW TO INCLUDE A DEFINITION OF THE TERM "OTHER CHARGES"; TO AMEND SECTIONS 75-67-119 AND 75-17-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THE REMEDY FOR CONTRACTING FOR AND RECEIVING UNLAWFUL OTHER CHARGES; TO PROVIDE THAT THE AUTHORITY TO SUE ANY FIREARMS OR AMMUNITION MANUFACTURER, DISTRIBUTOR OR DEALER ON BEHALF OF LOCAL GOVERNMENTAL ENTITIES FOR CERTAIN CAUSES OF ACTION SHALL BE EXCLUSIVELY RESERVED TO THE STATE; TO REPEAL SECTIONS 11-3-23 AND 11-3-25, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE ASSESSMENT OF A PENALTY ON CERTAIN JUDGMENTS APPEALED TO THE SUPREME COURT; 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. * * * Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the alleged act or omission occurred or where the event that caused the injury occurred. Civil actions alleging a defective product shall be commenced in the county where the plaintiff purchased the product. Venue shall be proper as to each and every named plaintiff. If the venue is improper as to any plaintiff, then the claims involving that plaintiff shall be severed and transferred to a county where venue is proper as to such claims, or dismissed without prejudice if there exists no county of proper venue.
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SECTION 2. Sections 11-11-5, 11-11-7, 11-11-11 and 11-11-13, Mississippi Code of 1972, which provide venue in actions against nonresidents, nonresident motorists, railroads and insurance companies, are hereby repealed.
SECTION 3. The following shall be codified as Section 11-1-64, Mississippi Code of 1972:
11-1-64. (1) In any civil action alleging damages caused by a product, a product seller other than a manufacturer shall not be liable for a latent defect if the seller is a mere conduit who purchased the product from a reputable manufacturer. It is the intent of this section to insulate innocent sellers who are not actively negligent from forum-driven lawsuits.
(2) A product seller shall not be considered to have failed to exercise reasonable care with respect to a product, based upon an alleged failure to inspect the product, if there was no reasonable opportunity to inspect the product; or the inspection, in the exercise of reasonable care, would not have revealed that the product was defective.
(3) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 4. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. In any action for damages caused by a product except for commercial damage to the product itself:
(a) Subject to the provisions of Section 11-1-64, the manufacturer or seller 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:
(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 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, the manufacturer or seller 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) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer or seller 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.
(e) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer or seller 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.
(f) 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 or seller 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.
(g) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact 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.
(ii) Subparagraph (i) shall not apply unless the seller has given prompt notice of the suit to the manufacturer within thirty (30) days of the filing of the complaint against the seller.
(h) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 5. 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.
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(2) Except as may be otherwise provided in subsection (4) 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.
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(3) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(4) 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.
(5) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for eachjoint tort-feasor, including named parties and absent tort-feasors without regard to whether the joint tort-feasor is immune from damages. Fault allocated to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
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(6) 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.
SECTION 6. Section 7 of House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
Section 7. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, injury to reputation, humiliation, embarrassment, * * * other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term "noneconomic damages" shall not include damages for disfigurement, nor does it include punitive or exemplary damages.
(b) "Actual economic damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, 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.
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(2) (a) In any civil action for injury if the trier of fact finds the defendant liable, * * * the plaintiff shall not be awarded more than the following for noneconomic damages:
(i) For claims for causes of action filed on or after passage of House Bill No. , Third Extraordinary Session 2002, but before July 1, 2011, the sum of Five Hundred Thousand Dollars ($500,000.00);
(ii) For claims for causes of action filed on or after July 1, 2011, but before July 1, 2017, the sum of Seven Hundred Fifty Thousand Dollars ($750,000.00);
(iii) For claims for causes of action filed on or after July 1, 2017, the sum of One Million Dollars ($1,000,000.00).
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(b) The jury shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.
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(3) Nothing in this section shall be construed to impose a limitation on damages for disfigurement or actual economic damages.
(4) Whether an element of damages may or may not be recovered in any action shall not be governed by the provisions of this section, but shall be governed by applicable statutory or common law.
SECTION 7. 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.
(g) Fifty percent (50%) of any award for punitive damages in civil actions shall be payable to the state and fifty percent (50%) to the individual plaintiff or plaintiffs who bring the suit. The state's portion of the damage award shall be deposited by the clerk of the court into the State General Fund with a pro rata portion of attorney's fees and costs to be deducted from the state's portion.
(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 all civil actions where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the greater of three (3) times the amount of the total compensatory damages awarded to the plaintiff in an action or Five Million Dollars ($5,000,000.00); however, if the defendant is an individual or a business with less than fifty (50) full-time employees, an award of punitive damages shall not exceed two (2) times the amount of the plaintiff's compensatory damages or Two Million Dollars ($2,000,000.00) or three percent (3%) of such defendant's net worth, whichever is less, 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.
(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 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 8. (1) For purposes of this section, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Sponsor" means any person, corporation or legal entity which, for charitable purposes or to promote good will in the community, (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 who purchase tickets to attend the event.
(2) (a) Any sponsor of an event, which does not exercise control over any aspect of the event other than acting as a sponsor, 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.
(b) No sponsor 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.
(c) This section shall not extend immunity to willful acts or gross negligence on the part of a sponsor; however, the sponsor 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.
SECTION 9. Section 67-3-73, Mississippi Code of 1972, is amended as follows:
67-3-73. (1) The Mississippi Legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
(2) Notwithstanding any other law to the contrary, no holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder, who lawfully sells or serves intoxicating beverages to a person who may lawfully purchase such intoxicating beverages, shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off the licensed premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
(3) Notwithstanding any other law to the contrary, no social host who serves or furnishes any intoxicating beverage to a person who may lawfully consume such intoxicating beverage shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off such social host's premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished. No social host who owns, leases or otherwise lawfully occupies a premises on which, in his absence and without his consent, intoxicating beverages are consumed by a person who may lawfully consume such intoxicating beverage shall be liable to such person or to any other person or to the estate, or survivors of either, for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person who consumed the intoxicating beverages.
(4) The limitation of liability provided by this section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol, or to any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated.
(5) There is no liability on a licensed wholesaler of beer and light wine beverages for the lawful distribution of beer and/or light wine to a retail permit holder.
SECTION 10. No owner, lessee or person in control of any property or premises shall be held liable for failing to prevent or failing to deter any act or omission committed by another person upon such property or premises that is a reckless, wanton, intentionally wrongful, illegal or criminal act.
SECTION 11. Civil actions in circuit, chancery and county court shall not be assigned to a judge until at least one (1) defendant has filed a responsive pleading. However, any necessary preliminary matters may be decided by a judge on a separate rotating basis before assignment of the action to a particular judge.
SECTION 12. There shall be no recovery for hedonic damages in any civil actions. For purposes of this section, hedonic damages means damages for the enjoyment of life of the deceased, as measured separately from the economic productive value that an injured or deceased person would have had.
SECTION 13. On motion by a defendant or upon its own motion, the court shall hear evidence of any amount of such damages incurred prior to the judgment which the defendant or defendants claim was replaced, compensated or indemnified pursuant to the United States Social Security Act, any state or federal income-disability act, any health, sickness or income-disability insurance, any accident insurance that provides health benefits or income-disability coverage, any contract or agreement of any group, organization, partnership, or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services, any contract or agreement to continue to pay, in whole or in part, the plaintiff's wages or income, or any other collateral source of benefits whatsoever. If the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount the plaintiff himself paid or contributed to secure his right to the benefits concerning which the defendant has introduced evidence. The plaintiff may also introduce evidence of any leave time lost due to the personal injury. The presiding judge shall reduce the jury award by the amount of such benefits less any amount which the plaintiff has paid or contributed to secure such benefits. There shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant's immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.
SECTION 14. Section 75-67-103, Mississippi Code of 1972, is amended as follows:
75-67-103. 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.
SECTION 15. 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) (a) If any licensee or other person violates any provision of this article or any rule or regulation promulgated pursuant to this article or any provision of Title 75, Chapter 17, Mississippi Code of 1972, or 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 for any reason:
(i) All such other charges plus interest accrued thereon at the rate of eight percent (8%) per annum shall be forfeited and may be recovered, whether the contract be executed or executory;
(ii) If the other charges subject to forfeiture under this section exceed Five Hundred Dollars ($500.00), all finance charges shall additionally be forfeited and may be recovered;
(iii) If the other charges subject to forfeiture under this section exceed One Thousand Five Hundred Dollars ($1,500.00), all principal shall additionally be forfeited and may be recovered.
(b) If the other charges subject to forfeiture under this section are found by the trier of fact and the court to have been contracted for or received as a result of fraud, then an award of three (3) times the other charges subject to forfeiture or One Thousand Dollars ($1,000.00), whichever is greater, plus reasonable attorney’s fees may be made in addition to the penalties provided in this subsection (2).
(3) The right to recover the penalties provided in subsection (2)(a)(ii) and (iii) shall accrue only after: (a) written notice of the violation is given to the licensee by certified mail addressed to the licensee’s place of business as shown in the credit transaction documents or such notice is given by certified mail to the licensee’s agent for service of process; and (b) thirty (30) days have elapsed since receipt of such notice by the licensee and the violation has not been corrected by refund or by credit to the borrower’s remaining obligation in the amount required by subsection (2)(a)(i). In the case of multiple violations involving a common violation affecting more than one hundred (100) borrowers, the licensee must notify the commissioner and correct the violation as to each affected borrower within thirty (30) days after receipt of a borrower notice, but the commissioner may extend the time for correction for good reason. The penalties provided for in subsection (2)(a)(ii) and (iii) shall not apply if it is proven by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, except that the licensee may be required to correct the error by refund or credit to the borrower’s remaining obligation in the amount required by subsection (2)(a)(i). Failure to refund or give credit for an unlawful other charge within thirty (30) days after receipt of a borrower notice or, in the case of multiple violations, failure to give the commissioner the required notice within the specified time, shall give rise to a rebuttable presumption that the violation was not the result of a bona fide error for purposes of subsection (2). The penalties provided for in subsection (2)(a)(ii) and (iii) shall not apply if the licensee discovers the problem itself or is notified of the problem by the commissioner and within sixty (60) days after discovering the violation, and prior to the receipt of written notice of the violation from the borrower as provided herein, the licensee notifies the affected borrower of the violation and either refunds or gives credit in the amount required by subsection (2)(a)(i).
(4) Except as provided in subsection (5) of this section, the remedies and penalties provided in this section shall be the exclusive remedies and penalties for all claims against a licensee or any other person for contracting for or receiving any finance charge in excess of that expressly permitted by Section 75-17-21, or for violation of any provision of this article or any rule or regulation promulgated pursuant to this article or any provision of Title 75, Chapter 17, Mississippi Code of 1972, 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.
(5) The remedies and penalties provided 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.
SECTION 16. 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) (a) 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 for any reason:
(i) All such other charges plus interest accrued thereon at the rate of eight percent (8%) per annum shall be forfeited and may be recovered, whether the contract be executed or executory;
(ii) If the other charges subject to forfeiture under this section exceed Five Hundred Dollars ($500.00), all finance charges shall additionally be forfeited and may be recovered;
(iii) If the other charges subject to forfeiture under this section exceed One Thousand Five Hundred Dollars ($1,500.00), all principal shall additionally be forfeited and may be recovered.
(b) If the other charges subject to forfeiture under this section are found by the trier of fact and the court to have been contracted for or received as a result of fraud, then an award of three (3) times the other charges subject to forfeiture or One Thousand Dollars ($1,000.00), whichever is greater, plus reasonable attorney’s fees may be made in addition to the penalties provided in this subsection (3).
(c) The right to recover the penalties provided in subsection (3)(a)(ii) and (iii) shall accrue only after: (i) written notice of the violation is given to the lender by certified mail addressed to the lender’s place of business as shown in the credit transaction documents or such notice is given by certified mail to the lender’s agent for service of process; and (ii) thirty (30) days have elapsed since receipt of such notice by the lender and the violation has not been corrected by refund or by credit to the consumer’s remaining obligation of the amount required by subsection (3)(a)(i). In the case of multiple violations involving a common violation affecting more than one hundred (100) consumers, the lender must notify the Commissioner of Banking and Consumer Finance and correct the violation as to each affected consumer within thirty (30) days after receipt of a consumer notice, but the commissioner may extend the time for correction for good reason. The penalties provided for in subsection (3)(a)(ii) and (iii) shall not apply if it is proven by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error, except that the lender may be required to correct the error by refund or credit to the consumer’s remaining obligation in the amount required by subsection (3)(a)(i). Failure to refund or give credit for an unlawful other charge within thirty (30) days after receipt of a consumer notice or, in the case of multiple violations, failure to give the commissioner the required notice within the specified time, shall give rise to a rebuttable presumption that the violation was not the result of a bona fide error for purposes of this subsection (3). The penalties provided for in subsection (3)(a)(ii) and (iii) shall not apply if the lender discovers the problem itself or is notified of the problem by the commissioner and within sixty (60) days after discovering the violation, and prior to the receipt of written notice of the violation from the consumer as provided herein, the lender notifies the affected consumer of the violation and either refunds or gives credit in the amount required by subsection (3)(a)(i).
(d) As used in this subsection (3), the term "consumer loan" shall mean any loan or extension of credit offered or extended primarily for personal, family or household purposes; and the term "other charges" shall mean any amounts contracted for or received by any person in connection with a consumer loan, other than finance charges as defined in this section.
(4) The remedies and penalties provided in this section shall be the exclusive remedies and penalties 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.
SECTION 17. (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) "Political subdivision" and "governmental entity" shall have the meanings ascribed in Section 11-46-1.
SECTION 18. Sections 11-3-23 and 11-3-25, Mississippi Code of 1972, which provide for the assessment of a penalty on the appeal of certain judgments to the Supreme Court, are repealed.
SECTION 19. This act shall take effect and be in force from and after January 1, 2003, and shall apply to all causes of action filed on or after that date.