Text: HSB00567 Text: HSB00569 Text: HSB00500 - HSB00599 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 321.445, subsection 4, paragraph b, 1 2 Code 1999, is amended to read as follows: 1 3 b. In a cause of action arising on or after July 1, 1986, 1 4 brought to recover damages arising out of the ownership or 1 5 operation of a motor vehicle, the failure to wear a safety 1 6 belt or safety harness in violation of this sectionshall not1 7 may be considered evidence of comparative fault under section 1 8 668.3, subsection 1. However, except as provided in section1 9321.446, subsection 6, when there is evidence that the failure 1 10 to wear a safety belt or safety harness in violation of this 1 11 sectionmay be admitted to mitigate damages, but only under1 12the following circumstances:1 13(1) Parties seeking to introduce evidence of the failure1 14to wear a safety belt or safety harness in violation of this1 15section must first introduce substantial evidence that the1 16failure to wear a safety belt or safety harnesscontributed to 1 17 the injury or injuries claimed by the plaintiff. 1 18(2) If the evidence supports such a finding, the trier of1 19fact may find that the plaintiff's failure to wear a safety1 20belt or safety harness in violation of this section1 21contributed to the plaintiff's claimed injury or injuries, and1 22may reduce the amount of plaintiff's recovery by an amount not1 23to exceed five percent of the damages awarded after any1 24reductions for comparative fault.1 25 Sec. 2. NEW SECTION. 625.30 OFFER OF SETTLEMENT – 1 26 ASSESSMENT OF COSTS AND ATTORNEY FEES. 1 27 1. Any party to a civil action may serve upon any other 1 28 party a written offer, designated as an offer of settlement 1 29 under this section, to settle a claim for the money, property, 1 30 or relief specified in the offer and to enter into an 1 31 agreement dismissing the claim or to allow judgment to be 1 32 entered accordingly. 1 33 a. The offer may be served at any time more than twenty 1 34 days after the original service of process in the action but 1 35 not less than thirty days before trial, or twenty days before 2 1 trial if it is a counter offer. 2 2 b. A party shall not file an offer made under this section 2 3 with the court. Evidence of an offer is not admissible except 2 4 in proceedings to enforce a settlement or to determine 2 5 sanctions under this section. 2 6 2. The offer shall remain open for thirty days unless 2 7 withdrawn by a writing served on the offeree prior to 2 8 acceptance. 2 9 3. Acceptance or rejection of the offer by the offeree 2 10 must be in writing and served upon the offeror. 2 11 4. An offer that is neither withdrawn nor accepted within 2 12 thirty days shall be deemed rejected. The fact that an offer 2 13 is made but not accepted does not preclude a subsequent offer. 2 14 5. a. In cases where the complaint sets forth a claim for 2 15 money, if the offeree rejects an offer made under this 2 16 section, and the judgment finally obtained by the offeree is 2 17 not at least ten percent more favorable than the last offer 2 18 made by the offeror, the offeree shall pay the offerors's 2 19 reasonable attorney fees and costs that are incurred after the 2 20 rejection of the last offer. 2 21 b. In cases where the complaint sets forth a claim for 2 22 property or other nonmonetary relief, if the offeree rejects 2 23 an offer made under this section, and the judgment finally 2 24 obtained by the offeree is not more favorable than the last 2 25 offer, the offeree shall pay the offeror's reasonable attorney 2 26 fees and costs that are incurred after rejection of the last 2 27 offer. 2 28 6. In all cases under this section, if an offer of 2 29 settlement is made and is not accepted, and a subsequent trial 2 30 results in a judgment which is less favorable than the last 2 31 offer of settlement, prejudgment interest shall not be 2 32 calculated or be subject to recovery for any period of time 2 33 after the date of the last offer. 2 34 7. This section shall not apply to class or derivative 2 35 actions. 3 1 Sec. 3. NEW SECTION. 668.3A IMMUNITY DUE TO MISUSE, 3 2 FAILURE TO MAINTAIN, OR ALTERATION. 3 3 1. In an action seeking recovery of damages for personal 3 4 injury, death, or property damage alleged to have been caused 3 5 by a product, an assembler, lessor, designer, supplier of 3 6 specifications, distributor, manufacturer, or seller shall not 3 7 be assigned a percentage of fault if any of the following was 3 8 a substantial factor in causing the injury, death, or property 3 9 damage: 3 10 a. A misuse of the product by the plaintiff or a third 3 11 person. 3 12 b. A failure to properly maintain, service, or repair the 3 13 product. 3 14 c. An alteration, modification, or change in the product 3 15 made by a person other than, and without the direction or 3 16 consent of, the assembler, lessor, designer, supplier of 3 17 specifications, distributor, manufacturer, or seller from whom 3 18 recovery of damages is being sought. 3 19 2. This section shall apply whether or not any of the 3 20 conduct described in subsection 1 was foreseeable. 3 21 Sec. 4. NEW SECTION. 668.17 ADMISSIBILITY OF EXPERT 3 22 TESTIMONY. 3 23 In an action brought pursuant to this chapter, the court 3 24 shall not permit testimony in the form of an expert opinion 3 25 involving scientific, technical, or specialized knowledge 3 26 unless the court first makes an affirmative determination 3 27 regarding both of the following: 3 28 1. The witness is qualified on the specific subject matter 3 29 of the testimony. 3 30 2. The testimony is reliable. In determining whether the 3 31 testimony is reliable, the court shall consider the following 3 32 factors relating to the testimony to be offered: 3 33 a. Whether the theory or technique has been tested or is 3 34 capable of being tested. 3 35 b. Whether the theory or technique has been subject to 4 1 peer review. 4 2 c. If the testimony is based on a particular technique, 4 3 the known or potential rate of error related to the technique. 4 4 d. Whether the theory or technique has been generally 4 5 accepted in the scientific or technical community to which the 4 6 testimony pertains. 4 7 Sec. 5. NEW SECTION. 668A.2 MULTIPLE PUNITIVE OR 4 8 EXEMPLARY AWARDS FOR SAME ACT OR COURSE OF CONDUCT. 4 9 1. A defendant against whom punitive or exemplary damages 4 10 have been awarded pursuant to section 668A.1 may file a 4 11 separate written motion with the court seeking to have the 4 12 amount of such damages reduced by the court when all of the 4 13 following facts exist: 4 14 a. The defendant was previously sued in one or more 4 15 actions in state or federal court arising from the same act or 4 16 course of conduct as the present action. Allegations of 4 17 substantially the same manufacturing defect, unsafe design, or 4 18 inadequate warning or labeling of similar units of the same 4 19 product in both the present and a previous action shall be 4 20 deemed to arise from the same act or course of conduct. 4 21 b. Punitive or exemplary damages were awarded against the 4 22 defendant in a previous action described in paragraph "a". 4 23 2. The motion shall be filed within the time permitted for 4 24 the filing of a motion for new trial, and shall include and 4 25 set forth all of the following: 4 26 a. The facts and theories of liability involved in any 4 27 previous action. 4 28 b. The amount of punitive or exemplary damages awarded in 4 29 any previous action. 4 30 c. The reason why and amount by which the present award of 4 31 punitive or exemplary damages duplicates the punitive damages 4 32 awarded in any previous action. 4 33 d. Any other evidence relevant to the determination of the 4 34 court in reducing punitive or exemplary damages. 4 35 e. Certified copies of judgments in any previous action 5 1 and relevant pleadings and other documents that demonstrate 5 2 the duplicative nature of the punitive or exemplary damages 5 3 awarded in the present action. 5 4 3. The party awarded the punitive or exemplary damages may 5 5 file a responsive motion prior to the hearing on the 5 6 defendant's motion. 5 7 4. Upon the proper filing of a motion under this section, 5 8 the court shall schedule a hearing, and shall determine 5 9 whether the liability for the punitive or exemplary damages 5 10 arose out of the same act or course of conduct as in any 5 11 previous action, and the extent, if any, to which the present 5 12 award of punitive or exemplary damages duplicates the total 5 13 amount of punitive or exemplary damages awarded in any 5 14 previous action. 5 15 a. The court may consider the facts of any previous 5 16 action, the basis of liability for the previous punitive or 5 17 exemplary damages awards, the purposes for which the awards 5 18 were made, how the awards were determined or calculated, and 5 19 any other evidence offered by the parties that is relevant to 5 20 the issue of whether the defendant is subject to duplicative 5 21 awards of punitive or exemplary damages. 5 22 b. If the court finds that the present punitive damage 5 23 award arose from the same conduct as previous punitive damage 5 24 awards, based on application of the factors set forth in this 5 25 section, the court shall set aside or reduce the present 5 26 punitive damage award in an amount necessary to eliminate the 5 27 duplication. 5 28 c. If the court reduces the present award of punitive or 5 29 exemplary damages in accordance with this section, the court 5 30 shall enter its findings and the basis for its decision in the 5 31 record. 5 32 5. The decision of the trial court on the issue of 5 33 reduction of punitive or exemplary damages may be appealed 5 34 according to the rules of appellate procedure. If the 5 35 appellate court determines that the decision of the trial 6 1 court, in reducing or failing to reduce the award of punitive 6 2 or exemplary damages, was clearly erroneous in light of the 6 3 record, the appellate court shall reverse the decision of the 6 4 trial court, and enter appropriate orders. 6 5 6. The court may stay entry of judgment or execution on 6 6 the award of punitive or exemplary damages pending a hearing 6 7 and decision under subsection 4 and enter any other orders as 6 8 necessary to avoid prejudice or delay. The court may enter a 6 9 similar stay of execution on the award of punitive or 6 10 exemplary damages, in addition to any appropriate conditions, 6 11 pending appeal of the issue if the defendant has made a prima 6 12 facie showing of the facts in subsection 1. 6 13 7. The possibility of reduction of an award of punitive or 6 14 exemplary damages pursuant to this section shall not be 6 15 disclosed to the jury. 6 16 Sec. 6. APPLICABILITY. Section 5 of this Act, relating to 6 17 multiple punitive or exemplary awards for the same conduct, 6 18 applies to any civil action, the trial of which commences on 6 19 or after the effective date of this Act, which civil action 6 20 shall be considered the present action in order to compare the 6 21 present action with previous actions. All other sections of 6 22 this Act apply to civil actions filed on or after the 6 23 effective date of this Act. 6 24 EXPLANATION 6 25 This bill amends Code section 321.445 relating to the use 6 26 of evidence regarding the failure to wear a safety belt. The 6 27 bill provides that such evidence may be considered evidence of 6 28 comparative fault when there is evidence that the failure to 6 29 wear a safety belt contributed to the injury claimed by the 6 30 plaintiff. 6 31 The bill creates new Code section 625.30, and provides that 6 32 any party may make an offer of settlement to another party at 6 33 any time after 20 days after the original service of process, 6 34 but at least 30 days prior to trial. The offer remains open 6 35 for 30 days unless withdrawn, and must be accepted in writing. 7 1 An offer that is not accepted within the 30 days is deemed 7 2 rejected. The offer is not filed with the court, and evidence 7 3 relating to such an offer is admissible only if necessary to 7 4 enforce a settlement. 7 5 If an offer is not accepted, and a subsequent judgment does 7 6 not result in a verdict at least 10 percent more favorable (or 7 7 simply more favorable, in cases where nonmonetary relief is 7 8 sought) than the offer of settlement that was not accepted, 7 9 the court shall award to the offeror those attorney fees and 7 10 costs incurred after the date of the offer. In addition, if 7 11 an offer of settlement is not accepted, and a subsequent trial 7 12 results in a judgment which is less favorable than the offer 7 13 of settlement, prejudgment interest shall not be calculated or 7 14 be subject to recovery for any period of time after the date 7 15 of the offer. 7 16 The bill creates new Code section 668.3A to provide that, 7 17 in an action for personal injury, death, or property damage 7 18 alleged to have been caused by a product, an assembler, 7 19 lessor, designer, supplier of specifications, distributor, 7 20 manufacturer, or seller will have no percentage of fault 7 21 assigned to them where one of three factors is determined to 7 22 be a substantial cause of the injury, death, or property 7 23 damage. These factors include misuse, failure to maintain, or 7 24 alteration of the product. The bill provides that this 7 25 defense is not affected by whether the conduct was 7 26 foreseeable. 7 27 The bill creates new Code section 668.17 to provide 7 28 requirements for the admission of testimony in the form of 7 29 expert opinion involving scientific, technical, or specialized 7 30 knowledge in a civil action. The bill provides that, in order 7 31 to be admitted, the court must affirmatively determine that 7 32 the witness is qualified on the specific subject matter of the 7 33 testimony and the testimony is reliable. 7 34 The bill creates new Code section 668A.2 to provide that a 7 35 defendant who is presently subject to an award of punitive or 8 1 exemplary damages may file a motion to have the damages 8 2 reduced when punitive or exemplary damages were awarded 8 3 against the defendant in a previous action arising out of the 8 4 same act or course of conduct. The bill provides that, in 8 5 determining whether to reduce the award, the court may 8 6 consider the facts of the previous actions, the basis of 8 7 liability for the previous awards, the purposes for which the 8 8 awards were made, how the awards were determined or 8 9 calculated, and any other relevant evidence. The court may 8 10 reduce or set aside the award, as necessary to eliminate 8 11 duplication. The decision by the court may be appealed. The 8 12 bill provides that the court may stay entry of judgment or 8 13 execution on the award pending a hearing and decision on a 8 14 motion to reduce the award or pending an appeal of the issue. 8 15 The bill provides that the possibility of reduction of an 8 16 award of punitive or exemplary damages shall not be disclosed 8 17 to the jury. This provision of the bill applies to any civil 8 18 action, the trial of which commences on or after the effective 8 19 date of the bill. 8 20 The bill provides that the bill, except for the provisions 8 21 relating to multiple punitive or exemplary awards for the same 8 22 conduct, applies to civil actions filed on or after the 8 23 effective date of the bill. 8 24 LSB 5813YC 78 8 25 jj/as/5.1
Text: HSB00567 Text: HSB00569 Text: HSB00500 - HSB00599 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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