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First Substitute S.B. 35

Senator Howard A. Stephenson proposes to substitute the following bill:


             1     
GOVERNMENT TORT LIABILITY AMENDMENTS

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Howard A. Stephenson

             5      Lyle W. Hillyard
             6      Terry R. Spencer
John L. Valentine
Ed P. Mayne


             7      AN ACT RELATING TO STATE AFFAIRS IN GENERAL; MODIFYING PROVISIONS TO
             8      THE GOVERNMENT'S WAIVERS OF IMMUNITY; CHANGING THE TIME PERIOD FOR
             9      FILING CLAIMS; MODIFYING THE DAMAGE CAPS; ALLOWING A GOVERNMENT
             10      ENTITY TO SEEK APPOINTMENT OF A GUARDIAN AD LITEM FOR MINOR
             11      CLAIMANTS; MODIFYING THE TIME FOR CLAIMS; INCREASING THE AMOUNT
             12      REQUIRED FOR UNDERTAKINGS; MODIFYING A STATUTE OF LIMITATIONS
             13      REQUIREMENT; MAKING TECHNICAL CORRECTIONS; PROVIDING A TRANSITIONAL
             14      CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
             15      This act affects sections of Utah Code Annotated 1953 as follows:
             16      AMENDS:
             17          63-30-11, as last amended by Chapter 164, Laws of Utah 1998
             18          63-30-19, as enacted by Chapter 139, Laws of Utah 1965
             19          63-30-34, as last amended by Chapter 76, Laws of Utah 1991
             20          78-12-28, as last amended by Chapter 153, Laws of Utah 1997
             21      Be it enacted by the Legislature of the state of Utah:
             22          Section 1. Section 63-30-11 is amended to read:
             23           63-30-11. Claim for injury -- Notice -- Contents -- Service -- Legal disability.
             24          (1) A claim arises when the statute of limitations that would apply if the claim were
             25      against a private person begins to run.


             26          (2) Any person having a claim for injury against a governmental entity, or against its
             27      employee for an act or omission occurring during the performance of the employee's duties, within
             28      the scope of employment, or under color of authority shall file a written notice of claim with the
             29      entity before maintaining an action, regardless of whether or not the function giving rise to the
             30      claim is characterized as governmental.
             31          (3) (a) The notice of claim shall set forth:
             32          (i) a brief statement of the facts;
             33          (ii) the nature of the claim asserted; and
             34          (iii) the damages incurred by the claimant so far as they are known.
             35          (b) The notice of claim shall be:
             36          (i) signed by the person making the claim or that person's agent, attorney, parent, or legal
             37      guardian; and
             38          (ii) directed and delivered to:
             39          (A) the city or town recorder, when the claim is against an incorporated city or town;
             40          (B) the county clerk, when the claim is against a county;
             41          (C) the superintendent or business administrator of the board, when the claim is against
             42      a school district or board of education;
             43          (D) the president or secretary of the board, when the claim is against a special district;
             44          (E) the attorney general, when the claim is against the State of Utah; or
             45          (F) a member of the governing board, the executive director, or executive secretary, when
             46      the claim is against any other public board, commission, or body.
             47          (4) (a) If the claimant is under the age of majority, or mentally incompetent and without
             48      a legal guardian at the time the claim arises, the claimant may apply to the court to extend the time
             49      for service of notice of claim.
             50          (b) (i) After hearing and notice to the governmental entity, the court may extend the time
             51      for service of notice of claim.
             52          (ii) The court may not grant an extension that exceeds the applicable statute of limitations.
             53          (c) In determining whether or not to grant an extension, the court shall consider whether
             54      the delay in serving the notice of claim will substantially prejudice the governmental entity in
             55      maintaining its defense on the merits.
             56          (d) (i) The government entity against whom the claim is filed may file a request with the


             57      court for the appointment of a guardian ad litem for the claimant.
             58          (ii) If a guardian ad litem is appointed under this Subsection (4)(d), the time for filing a
             59      claim under Sections 63-30-12 and 63-30-13 begins when the order appointing the guardian is
             60      issued.
             61          Section 2. Section 63-30-19 is amended to read:
             62           63-30-19. Undertaking required of plaintiff in action.
             63          At the time of filing the action the plaintiff shall file an undertaking in a sum fixed by the
             64      court, but in no case less than the sum of [$300] $600, conditioned upon payment by the plaintiff
             65      of taxable costs incurred by the governmental entity in the action if the plaintiff fails to prosecute
             66      the action or fails to recover judgment.
             67          Section 3. Section 63-30-34 is amended to read:
             68           63-30-34. Limitation of judgments against governmental entity or employee --
             69      Insurance coverage exception.
             70          (1) (a) Except as provided in Subsection (2), if a judgment for damages for personal injury
             71      against a governmental entity, or an employee whom a governmental entity has a duty to
             72      indemnify, exceeds [$250,000] $500,000 for one person in any one occurrence, or [$500,000]
             73      $1,000,000 for two or more persons in any one occurrence, the court shall reduce the judgment to
             74      that amount.
             75          (b) A court may not award judgment of more than [$250,000] $500,000 for injury or death
             76      to one person regardless of whether or not the function giving rise to the injury is characterized as
             77      governmental.
             78          (c) Except as provided in Subsection (2), if a judgment for property damage against a
             79      governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds
             80      $100,000 in any one occurrence, the court shall reduce the judgment to that amount, regardless of
             81      whether or not the function giving rise to the damage is characterized as governmental.
             82          (2) The damage limits established in this section do not apply to damages awarded as
             83      compensation when a governmental entity has taken or damaged private property for public use
             84      without just compensation.
             85          (3) (a) Each year, the risk manager shall:
             86          (i) make rules, which become effective no later than July 1, that increase or decrease the
             87      limitation of judgment amounts established in this section in a percentage equal to the percentage


             88      difference between the consumer price index for the preceding calendar year and the consumer
             89      price index for calendar year 1999; and
             90          (ii) after making an increase or decrease under Subsection (3), round up the limitation of
             91      judgment amounts established in Subsection (1) to the nearest $100.
             92          (b) For purposes of this Subsection (3), the risk manager shall calculate the consumer price
             93      index as provided in Sections 1(f)(4) and 1(f)(5), Internal Revenue Code.
             94          (c) Adjustments made by the risk manager to the limitation of judgment amounts
             95      established by this section have prospective effect only from the date the rules establishing the new
             96      limitation of judgment take effect and those adjusted limitations of judgment apply only to claims
             97      for injuries or losses that occur after the effective date of the rules that establish those new
             98      limitations of judgement.
             99          Section 4. Section 78-12-28 is amended to read:
             100           78-12-28. Within two years.
             101          An action may be brought within two years:
             102          (1) against a marshal, sheriff, constable, or other officer for liability incurred by the doing
             103      of an act in his official capacity, and by virtue of his office, or by the omission of an official duty,
             104      including the nonpayment of money collected upon an execution;
             105          (2) for recovery of damages for a death caused by the wrongful act or neglect of another;
             106      [or]
             107          (3) in causes of action against the state and its employees, for injury to the personal rights
             108      of another if not otherwise provided by state or federal law[.]; or
             109          (4) in causes of action against a political subdivision of the state and its employees, for
             110      injury to the personal rights of another arising after July 1, 2001, if not otherwise provided by state
             111      or federal law.
             112          Section 5. Transitional clause.
             113          This act has prospective effect only and any changes to the law caused by this act do not
             114      apply to any claims based upon injuries or losses that occurred before July 1, 2001.
             115          Section 6. Effective date.
             116          This act takes effect on July 1, 2001.





Legislative Review Note
    as of 1-31-00 8:44 AM


This legislation raises the following constitutional or statutory concerns:

Article I, Section 11 of Utah's constitution guarantees open courts. It also requires that injured
persons "have remedy by due course of law." In applying that provision to laws passed by the
Legislature that abrogate an existing legal remedy, the Utah Supreme Court has required the
Legislature to either: provide "an effective and reasonable alternative remedy by due course of
law"; or to identify the clear social and economic evil to be eliminated and demonstrate that the
law is not an arbitrary or unreasonable means for achieving the objective.

By placing caps on the amount of damages an injured person can recover from a government
entity, the Governmental Immunity Act arguably abrogates an existing legal remedy. In
Condemarin v. University Hospital (1989), held that caps on recovery for medical malpractice
were unconstitutional because they violated the open courts provision. This bill raises the existing
statutory caps significantly and provides for an automatic adjustment to the amount of the caps to
reflect inflation or deflation. These changes strengthen the likelihood that the governmental
immunity caps will withstand a constitutional challenge.

Office of Legislative Research and General Counsel


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