Bill Text: OR SB283 | 2011 | Regular Session | Introduced
Bill Title: Relating to liability; declaring an emergency.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB283 Detail]
Download: Oregon-2011-SB283-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1549-1
Senate Bill 283
Sponsored by Senator FERRIOLI (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires entry of judgment with installment payments in medical
liability actions in which $100,000 or more is awarded for losses
that will be incurred by plaintiff after entry of judgment.
Modifies law governing liability of individual tortfeasors when
more than one tortfeasor is liable for injury, death or property
damage. Eliminates reallocation of liability between tortfeasors
when court determines that all or part of tortfeasor's share of
obligation is uncollectible.
Imposes qualifications for expert witnesses in civil actions
for medical liability actions.
Provides that if offer of compromise in civil action is not
accepted, and party asserting claim in action fails to obtain
judgment more favorable than offer of compromise, court must
award prevailing party fees and attorney fees incurred after
service of offer.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to liability; creating new provisions; amending ORS
18.150, 31.610 and 40.410 and ORCP 54 E; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
{ +
PERIODIC PAYMENT OF DAMAGES + }
SECTION 1. { + (1) If an award of damages is made in a medical
liability action, and the award includes $100,000 or more for
losses that will be incurred by the plaintiff after the entry of
the judgment, upon motion of any party in the action, the court
shall enter judgment on the award in the following manner:
(a) The judgment shall require that all economic damages that
are attributable to losses incurred by the plaintiff before the
entry of the judgment be immediately due and payable;
(b) The judgment shall require that all noneconomic damages be
paid in installments; and
(c) The judgment shall require that all economic damages that
are attributable to losses that will be incurred by the plaintiff
after the entry of the judgment be paid in installments.
(2) A party moving for entry of a judgment under subsection (1)
of this section must submit a proposal to the court for the
manner in which installments will be paid, including actuarial
and annuity information supporting the proposal. The court shall
allow all of the parties in the action to submit such other
information as may be helpful to the court in determining the
manner in which installments will be paid under the judgment. The
dollar amount of each installment shall be based on the gross
amount of future damages awarded by the trier of fact, and may
not be based on the present value of future damages at the time
of the award.
(3) As a condition to entering a judgment under subsection (1)
of this section, a court may require that the installments be
paid through a trust fund, an annuity or other form of security
acceptable to the court.
(4) A judgment entered under subsection (1) of this section
must include:
(a) The name and address of each person that will receive
installment payments under the judgment;
(b) The dollar amount of each installment payment;
(c) The schedule for installment payments; and
(d) The number of installment payments or the period of time
during which installment payments must be made under the
judgment.
(5) All amounts in a judgment entered under subsection (1) of
this section that are not immediately paid upon entry of the
judgment, including all amounts paid by installment, do not bear
interest.
(6) If a judgment entered under subsection (1) of this section
requires that installments be paid through a trust fund, an
annuity or other form of security, and any amounts remain in the
trust fund, annuity or other form of security after the final
installment is paid, the remaining amounts shall be paid to the
judgment debtor or the judgment debtor's successors or assigns.
(7) If the judgment debtor under a judgment entered under
subsection (1) of this section fails to make payments on the
dates established by the judgment three or more times during a
calendar year, upon motion of the judgment creditor the court
shall enter a supplemental judgment against the judgment debtor
requiring that, within 30 days after the entry of the
supplemental judgment, the judgment debtor pay the entire balance
then remaining due under the judgment, along with all reasonable
attorney fees incurred by the judgment creditor in the
proceeding. Subsection (9) of this section does not apply to a
supplemental judgment entered under this subsection.
(8) A judgment entered under subsection (1) of this section may
not increase the amount awarded by the trier of fact, and any
installment payments attributable to future damages shall cease
upon the death of the judgment creditor. A judgment entered under
subsection (1) of this section is not subject to modification
after entry of the judgment, except for:
(a) Modification pursuant to subsection (7) of this section;
(b) Modification pursuant to ORCP 71; and
(c) Modification to terminate installment payments based on the
death of the judgment creditor.
(9) The title of any judgment entered under subsection (1) of
this section must indicate that the judgment is entered under
this section. Notwithstanding any other provision of law, a
judgment entered under subsection (1) of this section does not
become a lien on real property of the judgment debtor.
(10) As used in this section:
(a) 'Economic damages' and 'noneconomic damages' have the
meanings given those terms in ORS 31.710.
(b) 'Medical liability action' means an action in which a
plaintiff claims damages for personal injury or wrongful death,
including emotional injury or distress, loss of consortium,
property damage or loss of use of property, arising out of the
alleged negligence of a health care facility, as defined in ORS
442.015, an emergency medical technician certified by the Oregon
Health Authority or any person who is licensed or certified by
the:
(A) State Board of Examiners for Speech-Language Pathology and
Audiology;
(B) State Board of Chiropractic Examiners;
(C) State Board of Licensed Social Workers;
(D) Oregon Board of Licensed Professional Counselors and
Therapists;
(E) Oregon Board of Dentistry;
(F) Board of Examiners of Licensed Dietitians;
(G) State Board of Massage Therapists;
(H) Oregon Board of Naturopathic Medicine;
(I) Oregon State Board of Nursing;
(J) Nursing Home Administrators Board;
(K) Oregon Board of Optometry;
(L) State Board of Pharmacy;
(M) Oregon Medical Board;
(N) Occupational Therapy Licensing Board;
(O) Physical Therapist Licensing Board;
(P) State Board of Psychologist Examiners;
(Q) Board of Medical Imaging; or
(R) Oregon Health Licensing Agency. + }
SECTION 2. ORS 18.150 is amended to read:
18.150. (1) If a judgment document filed with a court
administrator under ORS 18.075 (2) includes a money award and
complies with ORS 18.042 (1) or 18.048 (1), the court
administrator shall note in the register of a circuit court that
the judgment creates a judgment lien unless:
(a) The judgment is entered in the small claims department of a
circuit court in an amount of less than $3,000, exclusive of
costs, and the judgment creditor has not created a judgment lien
for the judgment as provided in ORS 46.488;
(b) The judgment is entered in a criminal action for conviction
of a violation, and the court does not order under ORS 18.048 (4)
that the judgment creates a judgment lien;
(c) The judgment is entered under ORS 153.820;
{ + (d) The judgment is entered under section 1 of this 2011
Act; + } or
{ - (d) - } { + (e) + } The judgment does not create a lien
by operation of other law.
(2) Except as provided in this section, if the court
administrator notes in the register that a judgment creates a
judgment lien, the judgment has the following effect in the
county in which the judgment is entered:
(a) When the judgment is entered, the judgment lien attaches to
all real property of the judgment debtor in the county at that
time; and
(b) The judgment lien attaches to all real property that the
judgment debtor acquires in the county at any time after the
judgment is entered and before the judgment lien expires.
(3) Except as provided in this section, if the court
administrator notes in the register that a judgment creates a
judgment lien and the judgment contains a support award, the
support award portion of the judgment has the following effect in
the county in which the judgment is entered:
(a) Any lump sum support award existing when the judgment is
entered creates a support arrearage lien and has the effect
specified by subsection (2) of this section;
(b) When an installment becomes due under the terms of the
support award and is not paid, a support arrearage lien for the
unpaid installment attaches to all real property of the judgment
debtor in the county at that time; and
(c) When an installment becomes due under the terms of the
support award and is not paid, a support arrearage lien attaches
to all real property that the judgment debtor thereafter acquires
in the county for the purpose of enforcing the unpaid
installment, and remains attached to that property until
satisfaction is made for the installment or the judgment lien
arising from support award portion of the judgment expires.
(4) Real property may be conveyed or encumbered free of a
judgment lien created by the support award portion of a judgment,
but the conveyance or encumbrance is subject to any support
arrearage lien that attached to the real property under this
section or ORS 18.152.
(5) A judgment lien does not attach to any real property of a
judgment debtor acquired after the debt giving rise to the
judgment is discharged under federal bankruptcy laws. Debts are
presumed to have not been discharged in bankruptcy until the
judgment debtor establishes that the debt has been discharged.
(6) A court administrator may rely on the judgment document to
determine whether a judgment creates a judgment lien.
(7) This section does not apply to justice courts, municipal
courts or county courts performing judicial functions.
SECTION 3. { + Section 1 of this 2011 Act and the amendments
to ORS 18.150 by section 2 of this 2011 Act apply only to actions
commenced as described in ORS 12.020 on or after the effective
date of this 2011 Act. + }
{ +
JOINT AND SEVERAL LIABILITY + }
SECTION 4. ORS 31.610 is amended to read:
31.610. (1) { - Except as otherwise provided in this
section, - } In any civil action arising out of bodily injury,
death or property damage, including claims for emotional injury
or distress, loss of care, comfort, companionship and society,
and loss of consortium, the liability of each defendant for
damages awarded to plaintiff shall be several only and shall not
be joint.
{ - (2) In any action described in subsection (1) of this
section, the court shall determine the award of damages to each
claimant in accordance with the percentages of fault determined
by the trier of fact under ORS 31.605 and shall enter judgment
against each party determined to be liable. The court shall enter
a judgment in favor of the plaintiff against any third party
defendant who is found to be liable in any degree, even if the
plaintiff did not make a direct claim against the third party
defendant. The several liability of each defendant and third
party defendant shall be set out separately in the judgment,
based on the percentages of fault determined by the trier of fact
under ORS 31.605. The court shall calculate and state in the
judgment a monetary amount reflecting the share of the obligation
of each person specified in ORS 31.600 (2). Each person's share
of the obligation shall be equal to the total amount of the
damages found by the trier of fact, with no reduction for amounts
paid in settlement of the claim or by way of contribution,
multiplied by the percentage of fault determined for the person
by the trier of fact under ORS 31.605. - }
{ - (3) Upon motion made not later than one year after
judgment has become final by lapse of time for appeal or after
appellate review, the court shall determine whether all or part
of a party's share of the obligation determined under subsection
(2) of this section is uncollectible. If the court determines
that all or part of any party's share of the obligation is
uncollectible, the court shall reallocate any uncollectible share
among the other parties. The reallocation shall be made on the
basis of each party's respective percentage of fault determined
by the trier of fact under ORS 31.605. The claimant's share of
the reallocation shall be based on any percentage of fault
determined to be attributable to the claimant by the trier of
fact under ORS 31.605, plus any percentage of fault attributable
to a person who has settled with the claimant. Reallocation of
obligations under this subsection does not affect any right to
contribution from the party whose share of the obligation is
determined to be uncollectible. Unless the party has entered into
a covenant not to sue or not to enforce a judgment with the
claimant, reallocation under this subsection does not affect
continuing liability on the judgment to the claimant by the party
whose share of the obligation is determined to be
uncollectible. - }
{ - (4) Notwithstanding subsection (3) of this section, a
party's share of the obligation to a claimant may not be
increased by reason of reallocation under subsection (3) of this
section if: - }
{ - (a) The percentage of fault of the claimant is equal to
or greater than the percentage of fault of the party as
determined by the trier of fact under ORS 31.605; or - }
{ - (b) The percentage of fault of the party is 25 percent or
less as determined by the trier of fact under ORS 31.605. - }
{ - (5) If any party's share of the obligation to a claimant
is not increased by reason of the application of subsection (4)
of this section, the amount of that party's share of the
reallocation shall be considered uncollectible and shall be
reallocated among all other parties who are not subject to
subsection (4) of this section, including the claimant, in the
same manner as otherwise provided for reallocation under
subsection (3) of this section. - }
{ - (6) - } { + (2) + } This section does not apply to:
(a) A civil action resulting from the violation of a standard
established by Oregon or federal statute, rule or regulation for
the spill, release or disposal of any hazardous waste, as defined
in ORS 466.005, hazardous substance, as defined in ORS 453.005 or
radioactive waste, as defined in ORS 469.300.
(b) A civil action resulting from the violation of Oregon or
federal standards for air pollution, as defined in ORS 468A.005
or water pollution, as defined in ORS 468B.005.
SECTION 5. { + The amendments to ORS 31.610 by section 4 of
this 2011 Act apply only to causes of action that arise on or
after the effective date of this 2011 Act. + }
{ +
EXPERT WITNESSES + }
SECTION 6. ORS 40.410 is amended to read:
40.410. { + (1) Except as provided in subsection (2) of this
section, + } if scientific, technical or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education
may testify thereto in the form of an opinion or otherwise.
{ + (2) In a medical liability action as defined in section 1
of this 2011 Act, a person must qualify as an expert witness for
the purpose of testifying on the appropriate medical standard of
care as follows:
(a) A person seeking to testify as an expert witness under this
subsection must hold an active and unrestricted license or
certificate in Oregon or another state in the same profession as
the defendant.
(b) A person seeking to testify as an expert witness under this
subsection must be able to demonstrate by competent evidence
that, as a result of training, education, knowledge and
experience in the evaluation, diagnosis and treatment of the
disease or injury that is the subject matter of the medical
liability action, the person is substantially familiar with the
applicable standards of care and practice as the standards relate
to the acts or omissions that are the subject of the health care
claim.
(c) If the defendant in the civil action is certified by a
board recognized by the American Board of Medical Specialties, a
person seeking to testify as an expert witness under this
subsection must be certified in the same specialty by a board
recognized by the American Board of Medical Specialties and must
have expertise and training directly related to the particular
health care or matter at issue.
(d) Within five years before the date of the acts or omissions
on which the medical liability action is based, a person seeking
to testify as an expert witness under this subsection must have
been in active medical practice in the same discipline or school
of practice as the defendant, have devoted a substantial portion
of the person's time teaching at an accredited medical school or
have devoted a substantial portion of the person's time in
university-based research relating to the medical care and type
of treatment at issue.
(3) If a person licensed or certified in another state
testifies as an expert witness under subsection (2) of this
section, the person is deemed to have a temporary license to
practice medicine in this state for the purpose of providing the
testimony and is subject to the authority of the Oregon Medical
Board and the provisions of ORS chapters 676 and 677. + }
SECTION 7. { + The amendments to ORS 40.410 by section 6 of
this 2011 Act apply only to medical liability actions that are
commenced as described in ORS 12.020 on or after the effective
date of this 2011 Act. + }
{ +
OFFERS OF SETTLEMENT + }
SECTION 8. ORCP 54 E, as amended by the Council on Court
Procedures on December 11, 2010, is amended to read:
E Offer to allow judgment; effect of acceptance or rejection.
E(1) Except as provided in ORS 17.065 through 17.085, any party
against whom a claim is asserted may, at any time up to 14 days
prior to trial, serve upon any other party asserting the claim an
offer to allow judgment to be entered against the party making
the offer for the sum, or the property, or to the effect therein
specified. The offer shall not be filed with the court clerk or
provided to any assigned judge, except as set forth in
subsections E(2) and E(3) below.
E(2) If the party asserting the claim accepts the offer, the
party asserting the claim or such party's attorney shall endorse
such acceptance thereon and file the same with the clerk before
trial, and within seven days from the time the offer was served
upon such party asserting the claim; and thereupon judgment shall
be given accordingly as a stipulated judgment. If the offer does
not state that it includes costs and disbursements or attorney
fees, the party asserting the claim shall submit any claim for
costs and disbursements or attorney fees to the court as provided
in Rule 68.
E(3) If the offer is not accepted and filed within the time
prescribed, it shall be deemed withdrawn, and shall not be given
in evidence at trial and may be filed with the court only after
the case has been adjudicated on the merits and only if the party
asserting the claim fails to obtain a judgment more favorable
than the offer to allow judgment. In such a case, the party
asserting the claim shall not recover costs, prevailing party
fees, disbursements, or attorney fees incurred after the date of
the offer, but the party against whom the claim was asserted
shall recover of the party asserting the claim { + prevailing
party fees and all attorney fees, + } costs and disbursements
{ - , not including prevailing party fees, from the time of - }
{ + incurred after + } the service of the offer.
SECTION 9. { + The amendments to ORCP 54 E by section 8 of
this 2011 Act apply only to actions commenced as described in ORS
12.020 on or after the effective date of this 2011 Act. + }
{ +
CAPTIONS + }
SECTION 10. { + The unit captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 11. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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