Revision: Dec. 22, 2011, midnight
HB 1594 – AS INTRODUCED
2012 SESSION
09/10
HOUSE BILL 1594
AN ACT abolishing assessment of damages in tort actions by joint and several liability.
This bill abolishes assessment of damages in tort actions by joint and several liability.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2458
09/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT abolishing assessment of damages in tort actions by joint and several liability.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Assessment of Damages in Tort Actions. Amend RSA 507 by inserting after section 507:7-g the following new subdivision:
Assessment of Damages in Tort Actions
507:7-k Title. This subdivision shall be known and may be cited as the joint and several liability abolition act.
507:7-l Definitions. The following words, as used in this subdivision, shall have the meaning set forth below, unless the context clearly requires otherwise:
I. “Damages” means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, any other theory of damages such as fear of loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, 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. It does not include any punitive damages.
II. “Fault” means an act or omission of a person that 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 that results from an act or omission committed with a specific wrongful intent.
III. “Person” means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity or unincorporated association of persons.
507:7-m Several Liability. In any action for personal injury, property damage accompanying personal injury, or wrongful death, the liability of each defendant for damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant’s fault, and that amount shall be the maximum recoverable against said defendant.
507:7-n Fault of Nonparties.
I. In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death, or damage to property, tangible or intangible, regardless of whether said person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice within 120 days of the date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty’s name and last-known address, or the best identification of such nonparty that is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault.
II. Nothing in this subdivision is meant to eliminate or diminish any defenses or immunities that currently exist, except as expressly noted herein. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of such fault shall not subject any nonparty to liability in this or any other action, or be introduced as evidence of liability in any action.
507:7-o Concert of Action. Joint 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 liable under this section shall have a right of contribution from his or her fellow defendants acting in concert. A defendant shall be held responsible only for the portion of fault assessed to those with whom he or she acted in concert under this section.
507:7-p Burden of Proof. The burden of alleging and proving fault shall be upon the person who seeks to establish such fault.
507:7-q Limitations.
I. Nothing in this subdivision shall be construed to create a cause of action.
II. Nothing in this subdivision shall be construed, in any way, to alter the immunity of any person.
2 Loss of Consortium; Damages. Amend RSA 507:8-a to read as follows:
507:8-a Loss of Consortium. In a proper action, either a wife or husband is entitled to recover damages for loss or impairment of right of consortium whether caused intentionally or by negligent interference. Where fault on the part of the claimant or the claimant’s spouse is found to have caused, in whole or in part, the injury to the spouse on which the claim for loss or impairment of consortium is based, damages recoverable shall be [subject to diminution to the extent and] determined in the manner provided for in RSA [507:7-d] 507:7-m.
3 Damages for Wrongful Death. Amend RSA 556:12, II and III to read as follows:
II. In addition, the trier of fact may award damages to a surviving spouse of the decedent for the loss of the comfort, society, and companionship of the deceased; however, where fault on the part of the decedent or the surviving spouse is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be [subject to diminution to the extent and] determined in the manner provided for in RSA [507:7-d] 507:7-m. In no event shall damages awarded under this paragraph exceed $150,000.
III. In addition, where the decedent is a parent of a minor child or children, the trier of fact may award damages to such child or children for the loss of familial relationship, whether caused intentionally or by negligent interference; where the decedent is a minor child with a surviving parent or parents, the trier of fact may award damages to such parent or parents for the loss of familial relationship, whether caused intentionally or by negligent interference. However, where fault on the part of the decedent or the claimant is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be [subject to diminution to the extent and] determined in the manner provided for in RSA [507:7-d] 507:7-m. For purposes of this paragraph, loss of familial relationship shall include the loss of the comfort, society, affection, guidance, and companionship of the deceased. In no event shall damages awarded under this paragraph exceed $50,000 per individual claimant.
4 Damages for Breach of Trust. Amend RSA 564-B:10-1002 to read as follows:
564-B:10-1002 Damages for Breach of Trust.
(a) A trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of:
(1) the amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or
(2) the profit the trustee made by reason of the breach.
(b) Except as otherwise provided in this subsection, if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees, to the extent permitted by RSA [507:7-f] 507:7-o. However, a trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.
5 Repeal. RSA 507:7-d through RSA 507:7-i, relative to comparative fault, apportionment of damages, and contribution among tortfeasors, are repealed.
6 Effective Date. This act shall take effect January 1, 2013.