SOUTH CAROLINA REFORMS

Advertising Restrictions: H 3008 (2005). Makes using a nickname in attorney advertising a violation of the Unfair Trade Practices Act.

Appeal Bond Reform: H 3775 (2011).  Limits the amount a defendant can be required to secure the right to appeal a decision to $25 million for businesses with 50 or more employees and gross revenue of over $5 million, and $1 million limit for all other entities.

Appeal Bond Reform: H. 4823 (2004).  Provided that judgments are to be stayed during the appeal of a judgment by signatories to the Master Settlement Agreement.  Such defendants are not required to post an appeal bond.

Asbestos / Silica Litigation Reform: S. 1038 (2006).  Establishes minimum medical criteria (based on the AMA guide to the evaluation of permanent impairment) for the filing of asbestos and silica claims.  Extends the statute of limitations to when an exposed person discovers or should have discovered his or her physical impairment.

Asbestos / Successor Liability Reform: S. 1163 (2006).  Limits successor asbestos-related liability to the fair market value or the total gross assets of the transferor determined at the time of the merger or consolidation.  Provides methods for determining fair market value.

Disclosure of Insurance Policy Limits: H 3775 (2011).  Provides that every insurer providing automobile insurance coverage in this State and which is or may be liable to pay all or a part of any claim shall provide, within 30 days of receiving a written request from the claimant's attorney, a statement, under oath, of a corporate officer or the insurer's claims manager stating with regard to each known policy of non-fleet private passenger insurance issued by it, the name of the insurer, the name of each insured, and the limits of coverage.  The insurer may provide a copy of the declaration page of each such policy instead.  Does not require disclosure of limits for fleet policy limits, umbrella coverages, or excess coverages.  The information received pursuant to this section would be confidential and must not be disclosed to any outside party except as required to pursue the claim.

Employer Reference Liability: SB 1041 (1996).  Provides immunity from liability to employers providing information about a current or former employee, unless the employer knowingly or recklessly releases or discloses false information.

Expert Witness Standards Reform: S 83 (2005). In an action against a professional (such as physicians, medical professionals, architects, CPAs, etc.), increases the standard for admitting expert witness testimony by defining an expert witness as one who: (1) is qualified as to the acceptable standard of conduct of the professional whose conduct is at issue; (2) is licensed by an appropriate regulatory agency; (3) is board certified; and (4) has actual professional knowledge based on active practice for at least three to five years, has taught for at least half of his professional time for at least three to five years, or any combination thereof for at least three to five years.  In such actions against a professional, the plaintiff must file an affidavit of an expert witness       which specifies at least one negligent act or omission and the factual bases for   each claim, unless the basis of the claim does not require specialized knowledge   or experience to evaluate the conduct of the defendant. Provides that in any other civil action, expert witness is defined as one who has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding evidence and determining a fact or issue in the case.

Frivolous Lawsuit Sanctions: H 3008 (2005). Provides for sanctions against lawyers and parties who bring frivolous claims, including reporting lawyers to the Commission on Lawyers Conduct and required the Supreme Court to keep a public record of frivolous sanctions.

Frivolous Lawsuit Sanction: H 2610 (1988).  Allows a court to order sanctions for frivolous lawsuits. 

Government Retention of Personal Injury Lawyers: H 3375 (2011).  A circuit solicitor may employ outside counsel, in his discretion, without approval of the Attorney General, for civil forfeiture proceedings arising from criminal activity or from estreatment of bail bonds. In any other matter,

the circuit solicitor must obtain written approval of the Attorney General prior to retaining counsel to or filing a civil cause of action.

Joint and Several Liability Reform: H 3008 (2005). Provides that joint and several liability does not apply to defendants less than 50 percent responsible of the total fault.  In the calculation of total fault, comparative        fault of the plaintiff is to be included.  If the plaintiff is found to be 50 percent or       greater at fault, the plaintiff shall then be barred from recovery.  Defendant’s less than 50 percent at fault shall only be responsible for its proportional share of the damages based on its percentages of liability.  

Joint and Several Liability: S 83 (2005). Specifies that if there are multiple defendants in a civil action, joint and several liability does not apply to any defendant 50 percent or less responsible for the damages.  Furthermore, specified that comparative fault is included in the calculation of total fault in the case.  If the plaintiff is found to be greater than 50 percent responsible for the total fault, then the plaintiff is completely barred from recovering damages.  A defendant found to be less than 50 percent responsible is only responsible for its proportional share of damages based on its percentage of liability.  Retained the right of the “empty chair” defense where a defendant retains the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged damages and may be liable for any or all damages alleged by another party.

Medical Malpractice Reform/Emergency Situations: S 83 (2005). Provides that a physician is not liable for claims arising out of an emergency     situation unless the physician was grossly negligent.  Provides that a physician is not liable in a claim arising out of obstetrical care rendered in an emergency situation where there is no previous doctor/patient relationship or where the patient has not received prenatal care, unless the physician was grossly negligent.

Medical Malpractice Reform/Mediation: S 83 (2005). Requires that prior to filing an action, the plaintiff must file a Notice of Intent to File Suit, and the parties must participate in a court-supervised mediation.  If the matter is not resolved through mediation, the plaintiff may initiate the action within 60 days of the end of mediation or prior to the expiration of the statute of limitations, whichever is later.

Medical Malpractice Reform/ Noneconomic Damages: S 83 (2005). Limits noneconomic damages in medical liability cases to $350,000 per provider, with an overall aggregate limit of $1.05 million. 

Medical Liability Reform: Contributory Negligence: H 2610 (1988).  Retains contributory negligence.

Medical Liability Reform: Statute of Limitations: H 2610 (1988).  Establishes a 7-year statute of limitations (running from the discovery of the injury) for medical liability claims by minors.

Post Judgment Interest Rate Reform: H 3008 (2005). Reduces post judgment interest from a flat 12 percent to the prime rate plus four percent.

Prejudgment Interest: H 3403 (2000).  Sets prejudgment interest rates at the prime rate plus one percent.

Punitive Damages Reform: H 3375 (2011).  Established procedure to claim punitive damages: (1) plaintiff must specifically plead for punitive damages in the complaint but may not specify an amount; and (2) bifurcated process to determine punitive damages.  Punitive damages are only awarded if plaintiff proves by clear and convincing evidence that harm was the result of defendant's willful, wanton, or reckless conduct.  In second state of the bifurcated trial, jury determines if defendant liable for punitive damages, and amount, if applicable.  The factors for jury to consider in determining the amount of punitive damages:

•       Defendant's degree of culpability;

•       Severity of the harm caused by the defendant;

•       Extent to which the plaintiffs own conduct contributed to harm;

•       Duration of the conduct, the defendant's awareness, and any concealment;

•       Similar past conduct;

•       Profitability of the conduct to the defendant;

•       Defendant's ability to pay;

•       Likelihood the award will deter the defendant or others from like conduct;

•       Awards of punitive damages against the defendant for same act or course of conduct;

•       Criminal penalties against defendant for same act or course of conduct;

•       Civil fines against defendant for same act or course of conduct.

Award must be specific to each defendant, and each defendant is liable only for the amount made against him or her.  With respect to limitations, these limitations cannot be disclosed to the jury.  If the jury returns a verdict that exceeds these limits, the court shall enter judgment for the maximum amount allowed for under this statute.

First Limitation: punitive damages award may not exceed the greater of three times the amount of compensatory damages or $500,000.

Second Limitations: punitive damages must not exceed the greater of four times the amount of compensatory damages or $2 million dollars if: (1) the wrongful conduct proven under this section was motivated primarily by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was known or approved by the managing agent, director, officer, or the person responsible for making policy decisions on behalf of the defendant; or (2) the defendant's actions could subject the defendant to conviction of a felony and that act or course of conduct is a proximate cause of the plaintiffs damages

Limitations on punitive damages are not applied if: (1) at the time of injury the defendant had an intent to harm and determines that the defendant's conduct did in fact harm the claimant; or (2) the defendant has pled guilty to or been convicted of a felony arising out of the same act or course

of conduct complained of by the plaintiff and that act or course of conduct is a proximate cause of the

plaintiffs damages; or (3) the defendant acted or failed to act while under the influence of alcohol, drugs, other than lawfully prescribed drugs administered in accordance with a prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to the degree that the defendant’s judgment is substantially impaired.

The consumer price index is to be applied to the amount recoverable for punitive damages.

Punitive Damages Reform: Clear and Convincing Evidence: H 2610 (1988): S.C. Code Ann. § 15-33-135.  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

Sports Liability Reform: AB 3532 (1996).  Establishes immunity from liability for injuries or death to a person engaged in a skating activity caused by an inherent risk of ice or roller skating.

Statute of Repose/Construction Defect Cases: H 3008 (2005). Reduces the time within which an action arising from defective or unsafe construction may be brought from 13 years to eight years after the date of substantial completion of the improvement.

Statute of Limitations Reform:  H 2610 (1988).  Reduces the statute of limitations from 6 years to 3 years.

Venue Reform: H 3008 (2005). Specifies that claims can only be brought where the most substantial part of the action arose or in the defendant’s principal place of business.  In cases against a non-resident defendant, the action must be brought where the most substantial part of the cause of action occurred, or where the plaintiff resides at the time the action arose.  Civil actions against (i) a domestic corporation or (ii) a foreign corporation required to possess and possessing a certificate of authority from the Secretary of State must be brought and tried in the county where the defendant has its principal place of business at the time the cause of action arose, or where the most substantial part of the cause of action occurred.  Civil actions against a foreign corporation that does not possess a certificate of authority from the Secretary of State must be brought and tried in the county where the most substantial part of the cause of action occurred, or where the plaintiff resides at the time the cause of action arose.