House Bill 10

AN ACT TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE JOINT AND SEVERAL LIABILITY; TO PROVIDE THAT CERTAIN SUBROGATED CLAIMS SHALL BE REDUCED BY THE PERCENTAGE OF FAULT ATTRIBUTED TO AN EMPLOYER; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 85-5-7, Mississippi Code of 1972, 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 otherwise provided in subsections (4) and (6) * * * 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.

* * *

(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 each party alleged to be at fault.

(6) In any claim where an employee pursues an action for injury or death, where said employee has received benefits pursuant to Section 71-3-1 et seq., and which the employer or carrier is entitled to reimbursement pursuant to Section 71-3-71 and/or 71-3-15, the employer's subrogated claim shall be reduced by the percentage of fault attributable to the employer, its employees or agents which proximately caused the employee's alleged injury. This provision shall have no effect on the priority of payment otherwise set out in Section 71-3-71.

* * *

(7) 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 2. This act shall take effect and be in force from and after July 1, 2004, and shall apply to all causes of action filed on or after that date.