Assembly Bill No. 17–Assemblyman Marvel
Prefiled January 11, 2001
____________
Referred to Committee on Judiciary
SUMMARY—Makes various changes concerning tort
actions. (BDR 3‑29)
FISCAL NOTE: Effect on Local Government: No.
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EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along
left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to tort actions; requiring that damages awarded in certain actions be
reduced by the amount of any benefit received from a collateral source;
limiting the amount of noneconomic damages that may be awarded in certain
actions; providing for periodic payments of future economic damages in certain
actions; limiting attorney’s fees in certain actions; extending the period of
limitation for commencing an action for product liability; and providing other
matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section
1. Chapter 42 of NRS is hereby
amended by adding thereto
1-2 the provisions set forth as sections 2, 3 and 4 of
this act.
1-3 Sec. 2. 1. In an action for damages for personal injury or
1-4 wrongful death in
which the liability of the defendant is established or
1-5 admitted, the
court shall, before the entry of judgment, hold a separate
1-6 hearing to
determine if the plaintiff, as the result of the personal injury
1-7 or wrongful
death, has received a benefit from a collateral source. If the
1-8 court determines
that the plaintiff has received a benefit from a collateral
1-9 source, the court
shall reduce the amount of damages, if any, awarded in
1-10 the action by the
amount of the benefit.
1-11 2. As
used in this section and except as otherwise provided in
1-12 subsection 3,
“benefit from a collateral source” means any money,
1-13 service or other
benefit that is paid, provided or reimbursed, or is
1-14 reasonably likely
to be paid, provided or reimbursed, to the plaintiff for
1-15 personal injury
or wrongful death pursuant to:
1-16 (a) A state or federal act;
1-17 (b) A policy of insurance;
2-1 (c) A contract or agreement of any group,
organization, partnership
2-2 or corporation;
or
2-3 (d) Any other publicly or privately funded
program,
2-4 that provides
benefits for sickness, physical injury, dental injury,
2-5 emotional injury,
disability, accidents, loss of earnings or workers’
2-6 compensation.
2-7 3. A
benefit from a collateral source does not include a benefit that is
2-8 received by the
plaintiff pursuant to subsection 2 to the extent that the
2-9 provider of the
benefit:
2-10 (a) Is entitled to recover the benefit from
the plaintiff; or
2-11 (b) Is subrogated to the rights of the
plaintiff, if the right of
2-12 subrogation is
exercised by serving a notice of lien on the plaintiff before
2-13 the settlement of
or the entry of judgment in the action. The plaintiff
2-14 shall provide
notice of the commencement of the action to each provider
2-15 of benefits that
holds a lien provided by statute.
2-16 Sec. 3. 1. In an action for damages for personal injury or
2-17 wrongful death
that arises on or after October 1, 2001, the trier of fact
2-18 shall itemize, in
the verdict, the award of damages to reflect the monetary
2-19 amount intended
for:
2-20 (a) Past expenses for medical treatment, care
or custody;
2-21 (b) Future expenses for medical treatment,
care or custody;
2-22 (c) Past loss of earnings;
2-23 (d) Future loss of earnings;
2-24 (e) Noneconomic damages; and
2-25 (f) Other damages.
2-26 2. Except
as otherwise provided in this section and NRS 41.035, in
2-27 an action for
damages for personal injury or wrongful death, a judgment
2-28 for noneconomic
damages must not exceed $250,000.
2-29 3. If
the action is tried before a jury, the court or a party to the action
2-30 shall not
instruct or otherwise advise the jury concerning the limitation
2-31 on noneconomic
damages set forth in subsection 2.
2-32 4. The
limitation on noneconomic damages set forth in subsection 2
2-33 does not apply to
a cause of action that arises from:
2-34 (a) Willful or reckless misconduct; or
2-35 (b) An act or omission which constitutes a
felony.
2-36 5. As
used in this section, “noneconomic damages” means damages
2-37 for pain and suffering,
emotional distress, and loss of consortium or
2-38 companionship.
The term does not include exemplary or punitive
2-39 damages.
2-40 Sec. 4. 1. If the trier of fact in an action for damages for personal
2-41 injury or
wrongful death awards the plaintiff future economic damages,
2-42 the defendant
shall pay the award of future economic damages, at the
2-43 election of the
plaintiff:
2-44 (a) In a lump-sum payment that has been
reduced to its present value
2-45 as determined by
the trier of fact and approved by the court; or
2-46 (b) In an annuity or other appropriate
financial instrument purchased
2-47 by the defendant
to provide periodic payments to the plaintiff. The court
2-48 shall not reduce
an award of future economic damages to its present
3-1 value if the
plaintiff elects to receive the award pursuant to this
3-2 paragraph.
3-3 2. If
the plaintiff elects to receive an award of future economic
3-4 damages in an
annuity or other appropriate financial instrument that
3-5 provides periodic
payments:
3-6 (a) The plaintiff shall select the provider of
the annuity or other
3-7 appropriate
financial instrument.
3-8 (b) The court shall determine the duration of
the period during which
3-9 the periodic
payments are to be received.
3-10 (c) Each party, before the entry of judgment,
shall submit to the court
3-11 a plan specifying
the person who is to be the recipient of the periodic
3-12 payments, the
schedule for the periodic payments and the amount of
3-13 each periodic
payment.
3-14 (d) After reviewing the plans, the court shall
specify in its judgment:
3-15 (1) The provider of the annuity or other
appropriate financial
3-16 instrument;
3-17 (2) The duration of the period during which
the periodic payments
3-18 are to be
received;
3-19 (3) The person who is to be the recipient of
the periodic payments;
3-20 (4) The schedule for the periodic payments;
and
3-21 (5) The amount of each periodic payment.
3-22 (e) The court shall ensure that the total
amount of the periodic
3-23 payments is equal
to the total amount of the future economic damages
3-24 awarded by the
trier of fact and approved by the court.
3-25 (f) The defendant or the defendant’s insurer
shall fund the annuity or
3-26 other appropriate
financial instrument in full.
3-27 (g) Upon purchase of the annuity or other
appropriate financial
3-28 instrument by the
defendant or the defendant’s insurer, the plaintiff
3-29 shall:
3-30 (1) Execute a satisfaction of judgment or a
stipulation for dismissal
3-31 of the claim with
prejudice; and
3-32 (2) Release forever the defendant and the
defendant’s insurer, if
3-33 any, from any
obligation to make periodic payments pursuant to the
3-34 award.
3-35 3. If
the plaintiff dies before the final periodic payment of the award
3-36 is made:
3-37 (a) The unpaid balance of the award for loss
of future earnings
3-38 reverts to the
estate of the plaintiff; and
3-39 (b) The unpaid balance of the award for future
expenses for medical
3-40 treatment, care
or custody reverts to the defendant or the defendant’s
3-41 insurer.
3-42 4. As
used in this section, “future economic damages” includes,
3-43 without
limitation, damages for loss of future earnings and for future
3-44 expenses for
medical treatment, care or custody.
3-45 Sec. 5. NRS 42.020 is hereby amended to read as follows:
3-46 42.020 1. [Except as otherwise provided in subsection 2, in any] In
3-47 an action for damages for personal injury or wrongful death caused
by
3-48 medical malpractice, the court shall, in addition to any reduction in the
3-49 amount of damages
required pursuant to section 2 of this act, reduce the
4-1 amount of damages, if any, awarded in the action [must be reduced]
by the
4-2 amount of any prior payment made by or on behalf of
the [provider of
4-3 health care
against whom the action is brought] defendant to the injured
4-4 person or to the claimant to meet reasonable
expenses [of] for medical
4-5 treatment, care [,] or custody, reasonable expenses for other
essential
4-6 goods or services , or reasonable living expenses.
4-7 2. [In any
action described in subsection 1 in which liability for
4-8 medical
malpractice is established or admitted, the court shall, before the
4-9 entry of judgment,
hold a separate hearing to determine if any expenses
4-10 incurred by the
claimant for medical care, loss of income or other financial
4-11 loss have been
paid or reimbursed as a benefit from a collateral source. If
4-12 the court
determines that a claimant has received such a benefit, the court
4-13 shall reduce the
amount of damages, if any, awarded in the action by the
4-14 amount of the
benefit. The amount so reduced must not include any
4-15 amount for which
there is a right of subrogation to the rights of the
4-16 claimant if the
right of subrogation is exercised by serving a notice of lien
4-17 on the claimant
before the settlement of or the entry of judgment in the
4-18 action. Notice of
the action must be provided by the claimant to any
4-19 statutory holder
of a lien.
4-20 3. If
future economic damages are awarded in an action for medical
4-21 malpractice, the
award must be paid, at the election of the claimant:
4-22 (a) In a lump sum which has been reduced to
its present value as
4-23 determined by the
trier of fact and approved by the court; or
4-24 (b) Subject to the provisions of subsection 5,
by an annuity purchased to
4-25 provide periodic
payments.
4-26 As used in this
subsection, “future economic damages” includes damages
4-27 for future medical
treatment, care or custody, and loss of future earnings.
4-28 4. If
the claimant elects to receive periodic payments pursuant to
4-29 paragraph (b) of
subsection 3, the award must not be reduced to its present
4-30 value. The amount
of the periodic payments must be equal to the total
4-31 amount of all
future damages awarded by the trier of fact and approved by
4-32 the court. The
period for which the periodic payments must be made must
4-33 be determined by
the trier of fact and approved by the court. Before the
4-34 entry of judgment,
each party shall submit to the court a plan specifying the
4-35 recipient of the
payments, the amount of the payments and a schedule of
4-36 periodic payments
for the award. Upon receipt and review of the plans, the
4-37 court shall
specify in its judgment rendered in the action the recipient of
4-38 the payments, the
amount of the payments and a schedule of payments for
4-39 the award.
4-40 5. If
an annuity is purchased pursuant to paragraph (b) of subsection 3,
4-41 the claimant shall
select the provider of the annuity. Upon purchase of the
4-42 annuity, the
claimant shall:
4-43 (a) Execute a satisfaction of judgment or a
stipulation for dismissal of
4-44 the claim with
prejudice; and
4-45 (b) Release forever the defendant and his
insurer, if any, from any
4-46 obligation to make
periodic payments pursuant to the award.
4-47 6.] As used in this section [:
5-1 (a) “Benefit from a collateral source” means
any money, service or
5-2 other benefit
which is paid or provided or is reasonably likely to be paid or
5-3 provided to a
claimant for personal injury or wrongful death pursuant to:
5-4 (1) A state or federal act which provides
benefits for sickness,
5-5 disability,
accidents, loss of income or workers’ compensation;
5-6 (2) A policy of insurance which provides
health benefits or coverage
5-7 for loss of
income;
5-8 (3) A contract of any group, organization,
partnership or corporation
5-9 which provides,
pays or reimburses the cost of medical, hospital or dental
5-10 benefits or
benefits for loss of income; or
5-11 (4) Any other publicly or privately funded
program which provides
5-12 such benefits.
5-13 (b) “Medical] , “medical malpractice”
has the meaning ascribed to it in
5-14 NRS 41A.009.
5-15 Sec. 6. Chapter
7 of NRS is hereby amended by adding thereto a new
5-16 section to read as follows:
5-17 1. An
attorney shall not contract for or collect a fee contingent on
5-18 the amount of
recovery for representing a person seeking damages in
5-19 connection with
an action in tort in excess of:
5-20 (a) Forty percent of the first $50,000
recovered;
5-21 (b) Thirty-three and one-third percent of the
next $50,000 recovered;
5-22 (c) Twenty-five percent of the next $500,000
recovered; and
5-23 (d) Fifteen percent of the amount of recovery
that exceeds $600,000.
5-24 2. The
limitations set forth in subsection 1 apply to all forms of
5-25 recovery,
including, without limitation, settlement, arbitration and
5-26 judgment.
5-27 3. For
the purposes of this section, “recovered” means the net sum
5-28 recovered by the
plaintiff after deducting any disbursements or costs
5-29 incurred in
connection with the prosecution or settlement of the claim.
5-30 Costs of medical
care incurred by the plaintiff and general and
5-31 administrative
expenses incurred by the office of the attorney are not
5-32 deductible
disbursements or costs.
5-33 Sec. 7. Chapter
11 of NRS is hereby amended by adding thereto a new
5-34 section to read as follows:
5-35 1. An
action for product liability must be commenced:
5-36 (a) Within 6 years after the date of the
initial purchase of the product;
5-37 or
5-38 (b) Within 10 years after the date of the
manufacture of the
product,
5-39 whichever is
later.
5-40 2. As
used in this section, “product liability” means liability for
5-41 damages because
of personal injury, death, emotional harm,
5-42 consequential
economic damage or damage to property, including,
5-43 without
limitation, damages resulting from the loss of the use of property,
5-44 caused by the
manufacture, design, importation, distribution, packaging,
5-45 labeling, lease
or sale of a product.
5-46 Sec. 8. NRS
11.190 is hereby amended to read as follows:
5-47 11.190 Except as otherwise provided in NRS 125B.050
and 217.007,
5-48 and section 7 of
this act, actions
other than those for the recovery of real
6-1 property, unless further limited by specific
statute, may only be
6-2 commenced as follows:
6-3 1. Within 6 years:
6-4 (a) An action
upon a judgment or decree of any court of the United
6-5 States, or of any state or territory within the
United States, or the renewal
6-6 thereof.
6-7 (b) An action
upon a contract, obligation or liability founded upon an
6-8 instrument in writing, except those mentioned in the
preceding sections of
6-9 this chapter.
6-10 2. Within 4 years:
6-11 (a) An action
on an open account for goods, wares and merchandise
6-12 sold and delivered.
6-13 (b) An action
for any article charged on an account in a store.
6-14 (c) An action
upon a contract, obligation or liability not founded upon
6-15 an instrument in writing.
6-16 3. Within 3 years:
6-17 (a) An action
upon a liability created by statute, other than a penalty or
6-18 forfeiture.
6-19 (b) An action
for waste or trespass of real property, but when the waste
6-20 or trespass is committed by means of underground
works upon any mining
6-21 claim, the cause of action shall be deemed to accrue
upon the discovery by
6-22 the aggrieved party of the facts constituting the
waste or trespass.
6-23 (c) An action
for taking, detaining or injuring personal property,
6-24 including actions for specific recovery thereof, but
in all cases where the
6-25 subject of the action is a domestic animal usually
included in the term
6-26 “livestock,” which has a recorded mark or brand upon
it at the time of its
6-27 loss, and which strays or is stolen from the true
owner without his fault, the
6-28 statute does not begin to run against an action for
the recovery of the
6-29 animal until the owner has actual knowledge of such
facts as would put a
6-30 reasonable person upon inquiry as to the possession
thereof by the
6-31 defendant.
6-32 (d) Except as
otherwise provided in NRS 112.230 and 166.170, an
6-33 action for relief on the ground of fraud or mistake,
but the cause of action
6-34 in such a case shall be deemed to accrue upon the
discovery by the
6-35 aggrieved party of the facts constituting the fraud
or mistake.
6-36 (e) An action
pursuant to NRS 40.750 for damages sustained by a
6-37 financial institution because of its reliance on
certain fraudulent conduct of
6-38 a borrower, but the cause of action in such a case
shall be deemed to accrue
6-39 upon the discovery by the financial institution of
the facts constituting the
6-40 concealment or false statement.
6-41 4. Within 2 years:
6-42 (a) An action
against a sheriff, coroner or constable upon liability
6-43 incurred by acting in his official capacity and in
virtue of his office, or by
6-44 the omission of an official duty, including the
nonpayment of money
6-45 collected upon an execution.
6-46 (b) An action
upon a statute for a penalty or forfeiture, where the action
6-47 is given to a person or the state, or both, except
when the statute imposing
6-48 it prescribes a different limitation.
7-1 (c) An action
for libel, slander, assault, battery, false imprisonment or
7-2 seduction.
7-3 (d) An action
against a sheriff or other officer for the escape of a
7-4 prisoner arrested or imprisoned on civil process.
7-5 (e) Except as
otherwise provided in NRS 11.215, an action to recover
7-6 damages for injuries to a person or for the death of
a person caused by the
7-7 wrongful act or neglect of another. The provisions
of this paragraph
7-8 relating to an action to recover damages for
injuries to a person apply only
7-9 to causes of action which accrue after March 20, 1951.
7-10 5. Within 1 year:
7-11 (a) An action
against an officer, or officer de facto , to recover goods,
7-12 wares, merchandise or other property seized by the
officer in his official
7-13 capacity
[,] as tax collector, or to recover the price or value
of goods,
7-14 wares, merchandise or other personal property so
seized, or for damages
7-15 for the seizure, detention or sale of, or injury to,
goods, wares, merchandise
7-16 or other personal property seized, or for damages
done to any person or
7-17 property in making the seizure.
7-18 (b) An action
against an officer, or officer de facto , for money paid to
7-19 the officer under protest, or seized by the officer
in his official capacity [,]
7-20 as a collector of taxes, and which, it is claimed,
ought to be refunded.
7-21 Sec. 9. 1. Sections 2 to 6, inclusive, of this act apply
only to an
7-22 action that is filed on or after October 1, 2001.
7-23 2. Sections 7 and 8 of this act apply only to a
cause of action that
7-24 accrues on or after October 1, 2001.
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