SB2011_S_Amend

AMEND by deleting Section 7 on lines 275 through 371 and inserting the following in lieu thereof and renumbering subsequent section(s) accordingly:

SECTION *. 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) An award for punitive damages in civil actions is payable to the state and not to the individual plaintiff or plaintiffs who bring the suit. The damage award shall be deposited by the clerk of the court into the Mississippi Helping Outstanding Pupils Educationally (MHOPE) Scholarship Fund, a special fund hereby created in the State Treasury, which shall be expended pursuant to legislative appropriation for the purpose of funding MHOPE scholarships.

(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) The provisions of Section 11-1-65 shall not apply to:

(a) Contracts;

(b) Libel and slander; or

SECTION *. (1) There is established a study committee on creating a Mississippi Helping Outstanding Pupils Educationally (MHOPE) scholarship program to study and make recommendations to the Legislature on the establishment and implementation of a program of free college tuition in the State of Mississippi for highly achieving Mississippi students. The committee shall make a report of its findings and recommendations to the Legislature before December 1, 2003.

(2) The committee shall examine the Helping Outstanding Pupils Educationally (HOPE) scholarship program in the State of Georgia, Louisiana and similar programs that have been implemented in other states in order to gain a full understanding of such programs. In its report to the Legislature, the committee shall develop legislation for a HOPE scholarship program in Mississippi to be funded from punitive damages awards in civil cases, as provided in Section 11-1-65(1)(g), and shall develop suggestions on the possible integration of currently existing scholarship and tuition assistance programs in Mississippi with MHOPE. The report must include a fiscal note on the projected costs of MHOPE.

(3) The study committee shall be composed of the following fifteen (15) members:

(a) The Chairmen of the House Universities and Colleges, Education and Appropriations Committees;

(b) Two (2) members of the House of Representatives appointed by the Speaker of the House, or their designees from the House membership;

(d) Two (2) members of the Senate appointed by the Lieutenant Governor, or their designees from the Senate membership;

(e) The Commissioner of Higher Education or his designee;

(f) The State Superintendent of Public Education or his designee;

(g) The President of the Board of Trustees of State Institutions of Higher Learning or his designee from the board;

(h) The President of State Board for Community and Junior Colleges or his designee from the board; and

(i) A representative of a local district of Rotary International or his designee.

In making their legislative appointments, the Lieutenant Governor and Speaker of the House shall endeavor to achieve a diverse representation, with all geographical areas of the state being represented on the committee.

(4) If any chairman of a legislative committee serving on the study committee is unable to attend any meeting of the committee, the vice chairman of the respective committee may attend and vote at such meeting. Appointments shall be made within thirty (30) days after passage of this act. Within fifteen (15) days thereafter, on a day to be designated jointly by the Speaker of the House and the Lieutenant Governor, the study committee shall meet and organize by selecting from its membership a chairman and vice chairman. The vice chairman shall serve as secretary and shall be responsible for keeping all records of the study committee. A majority of the members of the study committee shall constitute a quorum. In the selection of its officers and the adoption of rules, resolutions and reports, an affirmative vote of a majority of the study committee is required. All members shall be notified in writing of all meetings, and such notices must be mailed at least five (5) days before the date on which a meeting is to be held.

(5) All expenses of the study committee shall be defrayed from the MHOPE scholarship fund established in Section 11-1-65(1)(g), and the study committee is authorized to conduct its business when the balance in this fund is Ten Thousand Dollars ($10,000.00) or more. Subject to the availability of MHOPE funds, for attending meetings of the study committee, members who are not legislators shall be compensated at the per diem rate authorized by Section 25-3-69, Mississippi Code of 1972, and shall be reimbursed in accordance with Section 25-3-41, Mississippi Code of 1972, for mileage and actual expenses incurred in attending meetings of the committee. However, no per diem, mileage allowance or expense allowance may be paid for attending meetings of the committee while the Legislature is in session, and no per diem, mileage allowance or expense allowance may be paid without prior approval of the proper committee in the member's respective house. Any member who is also a state employee shall not be eligible to receive per diem compensation. No study committee member may incur per diem, travel or other expenses unless previously authorized by vote, at a meeting of the study committee, which action must be recorded in the official minutes of the meeting. Nonlegislative members shall also be paid from MHOPE funds.

(6) The study committee may employ consultants or staff and may utilize clerical and legal staff employed by the Board of Trustees of State Institutions of Higher Learning, the Office of the Governor, the Legislature and any other staff assistance made available to the committee.

(7) Upon presentation of its report to the Legislature, the study committee shall be dissolved.

FURTHER, AMEND the title to conform.