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H.B. 74 Enrolled

                 

COMPARATIVE NEGLIGENCE ALLOCATION

                 
1999 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: John E. Swallow

                  AN ACT RELATING TO THE JUDICIAL CODE; ALLOWING THE ALLOCATION OF
                  FAULT IN A NEGLIGENCE ACTION TO BE ATTRIBUTED TO ALL PERSONS WHO
                  CONTRIBUTED TO THE INJURY, EVEN THOSE IMMUNE FROM SUIT; AND PROVIDING
                  FOR RETROSPECTIVE OPERATION.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      78-27-37, as last amended by Chapter 240, Laws of Utah 1996
                      78-27-38, as last amended by Chapter 221, Laws of Utah 1994
                      78-27-39, as last amended by Chapter 221, Laws of Utah 1994
                      78-27-41, as last amended by Chapter 221, Laws of Utah 1994
                      78-27-43, as last amended by Chapter 240, Laws of Utah 1996
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 78-27-37 is amended to read:
                       78-27-37. Definitions.
                      As used in Sections 78-27-37 through 78-27-43 :
                      (1) "Defendant" means a person, other than a person immune from suit as defined in
                  Subsection (3), who is claimed to be liable because of fault to any person seeking recovery.
                      (2) "Fault" means any actionable breach of legal duty, act, or omission proximately causing
                  or contributing to injury or damages sustained by a person seeking recovery, including negligence
                  in all its degrees, [contributory] comparative negligence, assumption of risk, strict liability, breach
                  of express or implied warranty of a product, products liability, and misuse, modification, or abuse
                  of a product.
                      (3) "Person immune from suit" means:
                      (a) an employer immune from suit under Title [35A] 34A, Chapter 3, Workers'
                  Compensation Act, or Chapter 3a, Utah Occupational Disease Act; and


                      (b) a governmental entity or governmental employee immune from suit pursuant to Title 63,
                  Chapter 30, Governmental Immunity Act.
                      (4) "Person seeking recovery" means any person seeking damages or reimbursement on its
                  own behalf, or on behalf of another for whom it is authorized to act as legal representative.
                      Section 2. Section 78-27-38 is amended to read:
                       78-27-38. Comparative negligence.
                      (1) The fault of a person seeking recovery shall not alone bar recovery by that person.
                      (2) A person seeking recovery may recover from any defendant or group of defendants
                  whose fault, combined with the fault of persons immune from suit, exceeds the fault of the person
                  seeking recovery prior to any reallocation of fault made under Subsection 78-27-39 (2).
                      (3) No defendant is liable to any person seeking recovery for any amount in excess of the
                  proportion of fault attributed to that defendant under Section 78-27-39 .
                      (4) (a) In determining the proportionate fault attributable to each defendant, the fact finder
                  may, and when requested by a party shall, consider the conduct of any person who contributed to the
                  alleged injury regardless of whether the person is a person immune from suit or a defendant in the
                  action and may allocate fault to each person seeking recovery, to each defendant, and to any other
                  person whether joined as a party to the action or not and whose identity is known or unknown to the
                  parties to the action, including a person immune from suit who contributed to the alleged injury. In
                  the case of a motor vehicle accident involving an unidentified motor vehicle, the existence of the
                  vehicle shall be proven by clear and convincing evidence which may consist solely of one person's
                  testimony.
                      (b) Any fault allocated to a person immune from suit is considered only to accurately
                  determine the fault of the person seeking recovery and a defendant and may not subject the person
                  immune from suit to any liability, based on the allocation of fault, in this or any other action.
                      Section 3. Section 78-27-39 is amended to read:
                       78-27-39. Separate special verdicts on total damages and proportion of fault.
                      (1) The trial court may, and when requested by any party shall, direct the jury, if any, to find
                  separate special verdicts determining the total amount of damages sustained and the percentage or

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                  proportion of fault attributable to each person seeking recovery, to each defendant, and to any other
                  person whether joined as a party to the action or not and whose identity is known or unknown to the
                  parties to the action, including a person immune from suit who contributed to the alleged injury.
                      (2) (a) If the combined percentage or proportion of fault attributed to all persons immune
                  from suit is less than 40%, the trial court shall reduce that percentage or proportion of fault to zero
                  and reallocate that percentage or proportion of fault to the other parties in proportion to the
                  percentage or proportion of fault initially attributed to each party by the fact finder. After this
                  reallocation, cumulative fault shall equal 100% with the persons immune from suit being allocated
                  no fault.
                      (b) If the combined percentage or proportion of fault attributed to all persons immune from
                  suit is 40% or more, that percentage or proportion of fault attributed to persons immune from suit
                  may not be reduced under Subsection (2)(a).
                      (c) (i) The jury may not be advised of the effect of any reallocation under Subsection (2).
                      (ii) The jury may be advised that fault attributed to persons immune from suit may reduce
                  the award of the person seeking recovery.
                      (3) A person immune from suit may not be held liable, based on the allocation of fault, in
                  this or any other action.
                      Section 4. Section 78-27-41 is amended to read:
                       78-27-41. Joinder of defendants.
                      (1) A person seeking recovery, or any defendant who is a party to the litigation, may join as
                  a defendant, in accordance with the Utah Rules of Civil Procedure, any person other than a person
                  immune from suit who may have caused or contributed to the injury or damage for which recovery
                  is sought, for the purpose of having determined their respective proportions of fault.
                      (2) A person immune from suit may not be named as a defendant, but fault may be allocated
                  to a person immune from suit solely for the purpose of accurately determining the fault of the person
                  seeking recovery and a defendant. A person immune from suit is not subject to any liability, based
                  on the allocation of fault, in this or any other action.
                      (3) (a) A person immune from suit may intervene as a party under Rule 24, Utah Rules of

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                  Civil Procedure, regardless of whether or not money damages are sought.
                      (b) A person immune from suit who intervenes in an action may not be held liable for any
                  fault allocated to that person under Section 78-27-38 .
                      (4) A party seeking to allocate fault shall identify in its answer those persons then known
                  to that party who may be at fault and shall identify within a reasonable time any additional persons
                  later discovered to have been at fault.
                      Section 5. Section 78-27-43 is amended to read:
                       78-27-43. Effect on immunity, exclusive remedy, indemnity, contribution.
                      Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any common law or
                  statutory immunity from liability, including, but not limited to, governmental immunity as provided
                  in Title 63, Chapter 30, and the exclusive remedy provisions of Title [35A] 34A, Chapter 3,                   Workers'
                  Compensation Act. Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any right to
                  indemnity or contribution arising from statute, contract, or agreement.
                      Section 6. Retrospective operation.
                      This act has retrospective operation to March 3, 1998, for any actions for which:
                      (1) retrospective operation does not enlarge, eliminate, or destroy a vested right; and
                      (2) a final unappealable judgment or order has not been issued as of the effective date, by:
                      (a) the United States Supreme Court;
                      (b) the Utah Supreme Court;
                      (c) the Utah Court of Appeals;
                      (d) the United States Circuit Court of Appeals;
                      (e) the United States District Court; or
                      (f) the Utah district court.
                 

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