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PAG LIN 1 1 DIVISION I 1 2 LIABILITY REFORM 1 3 Section 1. Section 216.2, subsection 11, Code 2003, is 1 4 amended to read as follows: 1 5 11. "Person" means one or more individuals including 1 6 individuals who are employees and individuals who supervise 1 7 employees, partnerships, associations, corporations, legal 1 8 representatives, trustees, receivers, and the state of Iowa 1 9 and all political subdivisions and agencies thereof. 1 10 Sec. 2. Section 625A.9, Code 2003, is amended to read as 1 11 follows: 1 12 625A.9 EXECUTION ON UNSTAYED PART OF JUDGMENT – 1 13 SUPERSEDEAS BOND WAIVED. 1 14 1. The taking of the appeal from part of a judgment or 1 15 order, and the filing of a bondas above directed, does not 1 16 stay execution as to that part of the judgment or order not 1 17 appealed from. 1 18 2. If the judgment or order appealed from is for money, 1 19 such bond shall not exceed any of the following amounts, 1 20 excluding costs: 1 21 a. One hundred percent of the amount of the money judgment 1 22 up to and including one million dollars. 1 23 b. One million dollars, if the amount of the money 1 24 judgment is in excess of one million dollars, up to and 1 25 including one hundred million dollars. 1 26 c. Twenty-five million dollars, if the amount of the money 1 27 judgment is in excess of one hundred million dollars. 1 28 3. Upon motion and for good cause shown, the district 1 29 court may stay all proceedings under the order or judgment 1 30 being appealed and permit the state or any of its political 1 31 subdivisions to appeal a judgment or order to the supreme 1 32 court without the filing of a supersedeas bond. 1 33 Sec. 3. Section 668A.1, Code 2003, is amended by striking 1 34 the section and inserting in lieu thereof the following: 1 35 668A.1 CITATION. 2 1 This chapter may be cited as the "Punitive Damages Standard 2 2 Act". 2 3 Sec. 4. NEW SECTION. 668A.2 DEFINITIONS. 2 4 As used in this chapter, the following terms shall have the 2 5 following meanings: 2 6 1. "Clear and convincing evidence" means evidence which 2 7 leaves no serious or substantial doubt about the correctness 2 8 of the conclusions drawn from the evidence. It is more than a 2 9 preponderance of evidence, but less than beyond a reasonable 2 10 doubt. 2 11 2. "Compensatory damages" means damages intended to make 2 12 good the loss of an injured party and no more. The term 2 13 includes general and special damages and does not include 2 14 nominal, exemplary, or punitive damages. 2 15 3. "Defendant" means any party against whom punitive 2 16 damages are sought. 2 17 4. "Malice" means either conduct which is specifically 2 18 intended by the defendant to cause tangible or intangible 2 19 serious injury to the plaintiff or conduct that is carried out 2 20 by the defendant both with a flagrant indifference to the 2 21 rights of the plaintiff and with a subjective awareness that 2 22 such conduct will result in tangible serious injury. 2 23 5. "Nominal damages" means damages that are not designed 2 24 to compensate a plaintiff and that are less than five hundred 2 25 dollars. 2 26 6. "Plaintiff" means any plaintiff claiming punitive 2 27 damages. 2 28 7. "Punitive damages" means damages awarded against a 2 29 party in a civil action due to aggravating circumstances and 2 30 awarded in order to penalize and to provide additional 2 31 deterrence against a defendant to discourage similar conduct 2 32 in the future. An award of punitive damages includes 2 33 exemplary or vindictive damages, but does not include 2 34 compensatory or nominal damages. 2 35 Sec. 5. NEW SECTION. 668A.3 PLEADING PUNITIVE DAMAGES – 3 1 NOTICE. 3 2 1. An award of punitive damages must be specifically 3 3 prayed for in the complaint. 3 4 2. The plaintiff must specifically plead either of the 3 5 following: 3 6 a. At least thirty days in advance of filing the 3 7 complaint, the plaintiff gave notice of a request for damages 3 8 pursuant to this chapter to the defendant and that in good 3 9 faith a reasonable settlement could not be reached. 3 10 b. The thirty-day notice under paragraph "a" could not be 3 11 given because of exigent circumstances. 3 12 3. The plaintiff shall not plead a specific amount of 3 13 punitive damages, but shall plead only that such damages are 3 14 sought in the action. 3 15 4. The prayer for punitive damages shall be stricken prior 3 16 to trial by the court unless the plaintiff presents prima 3 17 facie evidence sufficient to sustain an award of punitive 3 18 damages to the court at least thirty days prior to trial. 3 19 Sec. 6. NEW SECTION. 668A.4 PROCEDURE FOR AWARD OF 3 20 PUNITIVE DAMAGES. 3 21 1. If requested by the defendant, all actions tried before 3 22 a jury involving punitive damages shall be conducted in a 3 23 bifurcated trial before the same jury. 3 24 2. In the first stage of a bifurcated trial the jury shall 3 25 determine liability for compensatory damages and the amount of 3 26 compensatory damages or nominal damages. Evidence relevant 3 27 only to the issue of punitive damages shall not be admissible 3 28 in this stage. 3 29 3. Punitive damages may be awarded only if compensatory 3 30 damages have been awarded in the first stage of the trial. An 3 31 award of nominal damages cannot support an award of punitive 3 32 damages. 3 33 4. The jury shall determine if a defendant is liable for 3 34 punitive damages in the second stage of a bifurcated trial. 3 35 5. Evidence of a defendant's financial condition or net 4 1 worth is not admissible in the punitive damage proceeding. 4 2 6. In determining the amount of punitive damages, the 4 3 trier of fact shall consider all relevant evidence, including 4 4 all of the following: 4 5 a. The severity of the harm caused by the defendant. 4 6 b. The extent to which the plaintiff's own conduct 4 7 contributed to the harm. 4 8 c. The duration of the conduct, the defendant's awareness 4 9 of the conduct, and any concealment by the defendant. 4 10 d. The profitability of the conduct to the defendant. 4 11 e. Any compensatory or punitive damage award to persons 4 12 similarly situated to the plaintiff. 4 13 f. Any prospective award of compensatory damages to 4 14 persons similarly situated to the defendant. 4 15 g. Any criminal penalties imposed on the defendant as a 4 16 result of the alleged conduct of the defendant. 4 17 h. The amount of any civil penalties assessed against the 4 18 defendant as a result of the conduct complained of by the 4 19 plaintiff. 4 20 7. The trier of fact shall not consider the defendant's 4 21 wealth or financial condition in determining the amount of 4 22 punitive damages, but such evidence may be considered by the 4 23 reviewing court in determining whether the award of punitive 4 24 damages is excessive. 4 25 8. If a verdict is rendered awarding punitive damages, the 4 26 court shall review the decision of the trier of fact, upon 4 27 consideration of all relevant evidence, including the factors 4 28 identified in subsection 6, to ensure that the award does not 4 29 exceed an amount necessary for the sake of example and to 4 30 punish the defendant. The court shall include a statement of 4 31 findings as to the award of damages. 4 32 9. The amount of punitive damages shall be reduced 4 33 pursuant to the contributory or comparative fault principles 4 34 under the applicable laws of this state. In any action in 4 35 which there are two or more defendants, an award of punitive 5 1 damages must be specific as to each defendant, and each 5 2 defendant is liable only for the amount of the award made 5 3 against that defendant. 5 4 Sec. 7. NEW SECTION. 668A.5 AWARD OF PUNITIVE DAMAGES – 5 5 PROOF – STANDARD. 5 6 Punitive damages shall only be awarded where the plaintiff 5 7 proves by clear and convincing evidence that the plaintiff's 5 8 harm was the result of actual malice. This burden of proof 5 9 shall not be satisfied by proof of any degree of negligence, 5 10 including gross negligence. 5 11 Sec. 8. NEW SECTION. 668A.6 PUNITIVE DAMAGE LIMITATIONS. 5 12 1. Except as provided in subsection 2, an award of 5 13 punitive damages shall not exceed two times the amount of the 5 14 plaintiff's compensatory damages award or two hundred fifty 5 15 thousand dollars, whichever is greater. 5 16 2. If the defendant is a person or a business with fifty 5 17 or fewer full-time employees, an award of punitive damages 5 18 shall not exceed two times the amount of the plaintiff's 5 19 compensatory damages or two hundred fifty thousand dollars, 5 20 whichever is less. 5 21 Sec. 9. NEW SECTION. 668A.7 AVAILABILITY. 5 22 This chapter shall not be construed as creating any claim 5 23 for punitive damages which is not currently available under 5 24 the laws of this state. 5 25 Sec. 10. NEW SECTION. 668B.1 CITATION. 5 26 This chapter may be cited as the "Noneconomic Damage Awards 5 27 Act". 5 28 Sec. 11. NEW SECTION. 668B.2 DEFINITIONS. 5 29 As used in this chapter, unless the context otherwise 5 30 requires: 5 31 1. "Economic damages" means objectively verifiable 5 32 pecuniary damages arising from medical expenses and medical 5 33 care, rehabilitation services, custodial care, loss of 5 34 earnings and earning capacity, loss of income, burial costs, 5 35 loss of use of property, costs of repair or replacement of 6 1 property, costs of obtaining substitute domestic services, 6 2 loss of employment, loss of business or employment 6 3 opportunities, and other objectively verifiable monetary 6 4 losses. 6 5 2. "Noneconomic damages" means subjective, nonpecuniary 6 6 damages arising from pain, suffering, inconvenience, physical 6 7 impairment, disfigurement, mental anguish, emotional distress, 6 8 loss of services, companionship, society, or consortium, 6 9 injury to reputation, humiliation, and other nonpecuniary 6 10 damages. 6 11 Sec. 12. NEW SECTION. 668B.3 DAMAGE AWARDS. 6 12 In any personal injury action, the prevailing plaintiff may 6 13 be awarded all of the following damages: 6 14 1. Compensation for economic damages suffered by the 6 15 injured plaintiff. 6 16 2. Compensation for the noneconomic damages suffered by 6 17 the injured plaintiff not to exceed the greater of either of 6 18 the following: 6 19 a. Two hundred fifty thousand dollars. 6 20 b. The amount awarded in economic damages. 6 21 Sec. 13. NEW SECTION. 668B.4 SPECIAL DAMAGES – 6 22 FINDINGS. 6 23 1. In any action seeking damages for personal injury or 6 24 wrongful death in which liability is found, the trier of fact, 6 25 in addition to other appropriate findings, shall make separate 6 26 findings for each claimant specifying the amount of both of 6 27 the following: 6 28 a. Any past damages. 6 29 b. Any future damages and the periods over which they will 6 30 accrue, on an annual basis, for each of the following types of 6 31 damages: 6 32 (1) Medical and other costs of health care. 6 33 (2) Other economic loss. 6 34 (3) Noneconomic loss. 6 35 2. The calculation of the costs of any future medical 7 1 care, other costs of health care, and future noneconomic loss 7 2 must reflect the costs and losses during the period of time 7 3 the claimant will sustain those costs and losses. The 7 4 calculation for other economic loss must be based on the 7 5 losses during the period of time the claimant would have lived 7 6 but for the injury upon which the claim is based. 7 7 Sec. 14. NEW SECTION. 668C.1 CITATION. 7 8 This chapter may be cited as the "Joint and Several 7 9 Liability Act". 7 10 Sec. 15. NEW SECTION. 668C.2 DEFINITIONS. 7 11 As used in this chapter, unless the context otherwise 7 12 requires: 7 13 1. "Damages" means pain, suffering, inconvenience, 7 14 physical impairment, disfigurement, mental anguish, emotional 7 15 distress, loss of services, companionship, society, or 7 16 consortium, injury to reputation, humiliation, any other 7 17 theory of damages such as fear of loss or illness or injury, 7 18 loss of earnings and earning capacity, loss of income, medical 7 19 expenses and medical care, rehabilitation services, custodial 7 20 care, burial costs, loss of use of property, costs of repair 7 21 or replacement of property, costs of obtaining substitute 7 22 domestic services, loss of employment, loss of business or 7 23 employment opportunities, and other objectively verifiable 7 24 monetary losses. "Damages" does not include punitive damages. 7 25 2. "Fault" means an act or omission of a person which is a 7 26 proximate cause of injury or death to another person or 7 27 persons, damage to property, tangible or intangible, or 7 28 economic injury, including but not limited to negligence, 7 29 malpractice, strict liability, absolute liability, or failure 7 30 to warn. "Fault" does not include any tort that results from 7 31 an act or omission committed with a specific wrongful intent. 7 32 3. "Person" means any individual, corporation, company, 7 33 association, firm, partnership, society, joint stock company, 7 34 or any other entity, including any governmental entity or 7 35 unincorporated association of persons. 8 1 Sec. 16. NEW SECTION. 668C.3 SEVERAL LIABILITY. 8 2 1. In any action involving a claim of personal injury, 8 3 property damage accompanying personal injury, or wrongful 8 4 death, the liability of each defendant for damages shall be 8 5 several only and shall not be joint. Each defendant shall be 8 6 liable only for the amount of damages allocated to that 8 7 defendant in direct proportion to that defendant's percentage 8 8 of fault, and a separate judgment shall be rendered against 8 9 the defendant for that amount. 8 10 2. In determining the judgment amount of damages to be 8 11 entered against each defendant, the court, with regard to each 8 12 defendant, shall multiply the total amount of damages 8 13 recoverable by the plaintiff by the percentage of each 8 14 defendant's fault to determine the maximum amount of damages 8 15 recoverable against each defendant. 8 16 Sec. 17. NEW SECTION. 668C.4 FAULT – NONPARTIES. 8 17 1. In assessing percentages of fault, the trier of fact 8 18 shall consider the fault of all persons who contributed to the 8 19 alleged injury or death or damage to property, tangible or 8 20 intangible, regardless of whether such person was, or could 8 21 have been, named as a party to the suit. Negligence or fault 8 22 of a nonparty may be considered if the plaintiff entered into 8 23 a settlement agreement with the nonparty or if the defendant 8 24 gives notice within one hundred twenty days of the date of 8 25 trial that a nonparty was wholly or partially at fault. The 8 26 notice shall be given by filing a pleading in the action 8 27 designating such nonparty and setting forth such nonparty's 8 28 name and last known address, or the best identification of 8 29 such nonparty possible under the circumstances, together with 8 30 a brief statement of the basis for believing such nonparty to 8 31 be at fault. 8 32 2. This chapter shall not be construed to eliminate or 8 33 diminish any defenses or immunities that currently exist, 8 34 except as expressly noted in this chapter. Assessments of 8 35 percentages of fault for nonparties are used only as a vehicle 9 1 for accurately determining the fault of named parties. Where 9 2 fault is assessed against nonparties, findings of such fault 9 3 shall not subject any party to liability in this or any other 9 4 action, or be introduced as evidence of liability in any 9 5 action. 9 6 Sec. 18. NEW SECTION. 668C.5 CONCERT OF ACTION. 9 7 Joint liability shall be imposed on all persons who 9 8 consciously and deliberately pursue a common plan or design to 9 9 commit a tortuous act, or actively take part in a tortuous 9 10 act. Any person held jointly liable under this chapter shall 9 11 have a right of contribution from any codefendant acting in 9 12 concert. A defendant shall be held responsible only for the 9 13 portion of fault assessed to those with whom the defendant 9 14 acted in concert under this section. 9 15 Sec. 19. NEW SECTION. 668C.6 BURDEN OF PROOF. 9 16 The burden of alleging and proving fault shall be upon the 9 17 party who seeks to establish such fault. 9 18 Sec. 20. NEW SECTION. 668C.7 LIMITATIONS. 9 19 This chapter shall not be construed to create a cause of 9 20 action or to alter the immunity of any person. 9 21 Sec. 21. NEW SECTION. 668D.1 CITATION. 9 22 This chapter may be cited and shall be known as the 9 23 "Product Liability Act". 9 24 Sec. 22. NEW SECTION. 668D.2 DEFINITIONS. 9 25 As used in this chapter, unless the context otherwise 9 26 requires: 9 27 1. "Claimant" means a person who brings a product 9 28 liability action, and if such an action is brought through or 9 29 on behalf of an estate, includes the claimant's decedent, or 9 30 if such action is brought through or on behalf of a minor, 9 31 includes the claimant's parent or guardian. 9 32 2. "Design" means the intended or known physical and 9 33 material characteristics of a product and includes any 9 34 intended or known formulation or content of the product and 9 35 the usual result of the intended manufacturing or other 10 1 process used to produce the product. 10 2 3. "Harm" means any of the following: 10 3 a. Damage to property other than the product itself. 10 4 b. Personal physical injury, illness, or death. 10 5 c. Mental anguish or emotional harm. 10 6 d. Any loss of consortium or services or other loss 10 7 deriving from any type of harm described in paragraph "a", 10 8 "b", or "c". 10 9 4. "Manufacturer" means any of the following: 10 10 a. A person who is engaged in a business to design, 10 11 produce, make, fabricate, construct, or remanufacture a 10 12 product or component part of a product. 10 13 b. A product seller not described in paragraph "a" holding 10 14 itself out as a manufacturer to the user of the product; 10 15 except that any product seller who acts primarily as a 10 16 wholesaler, distributor, or retailer of products may be a 10 17 manufacturer with respect to a product to the extent that such 10 18 seller designs, produces, makes, fabricates, constructs, or 10 19 remanufactures the product before sale. 10 20 5. "Person" means an individual, corporation, company, 10 21 association, firm, partnership, society, joint stock company, 10 22 or any other entity including any government entity or 10 23 unincorporated association of persons. 10 24 6. "Product" means an object, substance, mixture, or raw 10 25 material in a gaseous, liquid, or solid state, possessing 10 26 intrinsic value which is capable of delivery either as an 10 27 assembled whole or as a component part and is produced for 10 28 introduction to trade or commerce. "Product" does not include 10 29 human tissue, blood and blood products, or organs. 10 30 7. a. "Product seller" means either of the following: 10 31 (1) A manufacturer. 10 32 (2) A person who, in the course of business conducted for 10 33 that purpose, sells, distributes, leases, installs, prepares, 10 34 packages, labels, markets, repairs, maintains, or otherwise is 10 35 involved in placing a product in the stream of commerce. 11 1 b. "Product seller" does not mean any of the following: 11 2 (1) A seller of real property, unless that person is 11 3 engaged in the sale of manufactured housing or in the mass 11 4 production of dwellings. 11 5 (2) A provider of professional services in any case in 11 6 which the sale or use of a product is incidental to the 11 7 transaction and the essence of the transaction involves 11 8 judgment, skill, or services. 11 9 (3) A person who acts only in a financial capacity with 11 10 respect to the sale of a product. 11 11 (4) A person who leases a product, without having a 11 12 reasonable opportunity to inspect and discover defects in the 11 13 product, under a lease arrangement in which the selection, 11 14 possession, maintenance, and operation of the product are 11 15 controlled by a person other than the lessor. 11 16 Sec. 23. NEW SECTION. 668D.3 EFFECT ON OTHER LAWS. 11 17 1. Except as provided in subsection 2, any civil action 11 18 brought against a manufacturer or product seller for harm 11 19 caused by a product is a product liability action and is 11 20 governed by the provisions of this chapter. This chapter is 11 21 intended to govern any civil action for harm caused by a 11 22 product, including any action which before the effective date 11 23 of this Act would have been based on any of the following 11 24 theories: 11 25 a. Strict liability in tort. 11 26 b. Negligence. 11 27 c. Breach of express, implied, or statutorily implied 11 28 warranty. 11 29 d. Failure to discharge a duty to warn or instruct. 11 30 e. Misrepresentation, concealment, or nondisclosure. 11 31 f. Any other common law theory or theory established by 11 32 statute that is the basis for an award of damages for harm 11 33 caused by a product. 11 34 2. A product liability action does not include any civil 11 35 action against a manufacturer or seller for any of the 12 1 following: 12 2 a. Harm caused to a product itself. 12 3 b. Damage to property under a breach of warranty theory if 12 4 prohibited by the Iowa uniform commercial code. 12 5 c. Commercial loss, including incidental and consequential 12 6 damages in a commercial setting. 12 7 d. Commercial risks that are the subject of a contract 12 8 between the manufacturer or a seller and a buyer. 12 9 Civil actions described in this subsection shall be 12 10 governed by the Iowa uniform commercial code. 12 11 3. In a product liability action brought pursuant to this 12 12 chapter, the product seller is not liable to a claimant for 12 13 mental anguish or emotional harm in the absence of proof of 12 14 related and contemporaneous personal physical injury, illness, 12 15 or death. 12 16 Sec. 24. NEW SECTION. 668D.4 STANDARDS OF LIABILITY. 12 17 In a product liability action brought pursuant to this 12 18 chapter, a manufacturer shall be liable to a claimant if the 12 19 claimant establishes by a preponderance of the evidence all of 12 20 the following: 12 21 1. The product was unreasonably dangerous for any of the 12 22 following reasons: 12 23 a. Faulty construction. 12 24 b. Failure to conform to an express warranty with respect 12 25 to the product made by the manufacturer or product seller. 12 26 c. Faulty design. 12 27 d. Failure of the manufacturer to provide adequate 12 28 warnings or instructions. 12 29 2. The defendant was the manufacturer of the particular 12 30 product that caused the claimant's harm. 12 31 3. The unreasonably dangerous aspect of the product was 12 32 the proximate cause of the harm complained of by the claimant. 12 33 Sec. 25. NEW SECTION. 668D.5 GOVERNMENT STANDARDS. 12 34 In a product liability action brought pursuant to this 12 35 chapter, a manufacturer shall not be liable to a claimant if 13 1 the product alleged to have caused the claimant's harm 13 2 materially complied, at the time the product was manufactured, 13 3 with standards, conditions, or specifications established, 13 4 adopted, or approved by a federal or state statute or by a 13 5 state or federal governmental agency responsible for the 13 6 design formulation, labeling, packaging, performance, or 13 7 approval of the product, unless the claimant proves by clear 13 8 and convincing evidence that the defendant intentionally and 13 9 fraudulently withheld from or misrepresented to the agency 13 10 information known to be material and relevant to the harm in 13 11 question. 13 12 Sec. 26. NEW SECTION. 668D.6 DEFECTLESS PRODUCTS. 13 13 In a product liability action brought pursuant to this 13 14 chapter, a manufacturer shall not be liable for harm caused by 13 15 an inherent characteristic of the product that would be 13 16 recognized by the ordinary person who uses or consumes the 13 17 product with the ordinary knowledge common to the community. 13 18 Sec. 27. NEW SECTION. 668D.7 MISUSE AND MODIFICATION. 13 19 In a product liability action brought pursuant to this 13 20 chapter, a manufacturer shall not be liable for harm caused by 13 21 product misuse, alteration, or modification. Misuse, 13 22 alteration, or modification shall include, but is not limited 13 23 to, the following: 13 24 1. Any use, alteration, or modification contrary to or 13 25 inconsistent with a manufacturer's warnings or instructions. 13 26 2. Any use, alteration, or modification involving a risk 13 27 of harm which was known or should have been known by an 13 28 ordinary person who uses or consumes the product. 13 29 Sec. 28. NEW SECTION. 668D.8 CONSTRUCTION DEFECTS. 13 30 In a product liability action brought pursuant to this 13 31 chapter, a product may be unreasonably dangerous because it is 13 32 defective in manufacture or construction only if the claimant 13 33 proves by a preponderance of the evidence that when the 13 34 product left the control of the manufacturer, it deviated in a 13 35 material way from the established design specifications, 14 1 formula, or performance standards of the manufacturer, or from 14 2 the clear majority of otherwise identical units manufactured 14 3 to the same design specifications, formula, or performance 14 4 standards. 14 5 Sec. 29. NEW SECTION. 668D.9 EXPRESS WARRANTY. 14 6 1. In a product liability action brought pursuant to this 14 7 chapter, a product may be unreasonably dangerous because it 14 8 did not conform to an express warranty only if the claimant 14 9 proves by a preponderance of the evidence all of the 14 10 following: 14 11 a. The claimant, or a person acting on the claimant's 14 12 behalf, reasonably relied on an express warranty made by the 14 13 manufacturer about a material fact concerning the safety of 14 14 the product. 14 15 b. The express warranty proved to be untrue. 14 16 c. If the representation had been true, the claimant would 14 17 not have been harmed. 14 18 2. For the purposes of this section: 14 19 a. "Express warranty" means any material, positive 14 20 statement, affirmation of fact, promise, or description 14 21 relating to a product, including any sample or model of a 14 22 product. 14 23 b. "Material fact" means any specific characteristic or 14 24 quality of the product, but does not include a general opinion 14 25 about, or praise of, the product or its quality. 14 26 3. A manufacturer may be subject to liability under this 14 27 section although it did not engage in negligent or fraudulent 14 28 conduct in making the express warranty. 14 29 Sec. 30. NEW SECTION. 668D.10 KNOWLEDGE OF DANGER. 14 30 In a product liability action brought pursuant to this 14 31 chapter, based upon a defective design, a manufacturer shall 14 32 not be liable unless the claimant proves by a preponderance of 14 33 the evidence that, at the time the product left the 14 34 manufacturer's control, the manufacturer knew or, in light of 14 35 the scientific and technical knowledge in existence at the 15 1 time the product left the manufacturer's control, reasonably 15 2 should have known of the danger that caused the claimant's 15 3 harm. 15 4 Sec. 31. NEW SECTION. 668D.11 FEASIBLE ALTERNATIVE 15 5 DESIGN. 15 6 In a product liability action brought pursuant to this 15 7 chapter, based upon a defective design, a manufacturer shall 15 8 not be liable unless the claimant proves by a preponderance of 15 9 the evidence that, at the time the product left the 15 10 manufacturer's control, a practical and technically feasible 15 11 alternative design or formulation existed that would have 15 12 prevented the harm without significantly impairing the 15 13 usefulness or desirability of the product to the group of 15 14 persons who are the intended users of the product. 15 15 Sec. 32. NEW SECTION. 668D.12 UNAVOIDABLY UNSAFE 15 16 PRODUCTS. 15 17 In a product liability action brought pursuant to this 15 18 chapter, a manufacturer is not liable to a claimant for harm 15 19 caused by an unavoidably unsafe aspect of a drug, biological, 15 20 or medical device unless the claimant proves by a 15 21 preponderance of the evidence both of the following: 15 22 1. At the time the product left the manufacturer's 15 23 control, the manufacturer knew or, in light of the then 15 24 existing and reasonably available scientific and technical 15 25 knowledge, reasonably should have known of the danger that 15 26 caused the claimant's harm. 15 27 2. The manufacturer failed to provide adequate warnings or 15 28 instructions. A product or any part of a product shall be 15 29 considered unavoidably unsafe unless the danger could have 15 30 been eliminated by use of an existing, practical, and 15 31 technically feasible alternative design or formulation that 15 32 would have prevented the harm without significantly impairing 15 33 the usefulness or desirability of the product to the group of 15 34 persons who are the intended users of the product. 15 35 3. For the purposes of this section, "adequate warning" 16 1 means a warning that a reasonably prudent person in the same 16 2 or similar circumstances would have provided with respect to 16 3 the danger, or a warning that conforms to the requirements of 16 4 a federal or state statute or agency regulation, or that is 16 5 conditioned upon the approval of the product by a federal or 16 6 state agency that prescribes the form or language of the 16 7 warning or instruction. 16 8 Sec. 33. NEW SECTION. 668D.13 ASSUMPTION OF RISK. 16 9 1. In a product liability action brought pursuant to this 16 10 chapter, a defendant shall not be liable if the injured person 16 11 assumed the risk of injury or harm to property. 16 12 2. "Assumed the risk" means the injured person did both of 16 13 the following: 16 14 a. Knew of and appreciated the risk. 16 15 b. Voluntarily encountered the risk that proximately 16 16 caused the injury or damage. 16 17 3. The elements of assumption of risk may be inferred, as 16 18 a matter of either fact or law, from circumstantial evidence 16 19 that the injured person should have known and appreciated the 16 20 risk and voluntarily encountered it. 16 21 Sec. 34. NEW SECTION. 668D.14 WARNINGS. 16 22 1. In a product liability action brought pursuant to this 16 23 chapter, a manufacturer shall not be liable for harm caused by 16 24 a failure to warn if the product contains an adequate warning 16 25 or instruction. 16 26 2. A manufacturer shall not be liable for failure to warn 16 27 or instruct about any of the following: 16 28 a. A danger that is an open and obvious risk or that is a 16 29 matter of common knowledge. 16 30 b. A product misuse, alteration, or modification as 16 31 described in section 668D.7. 16 32 3. For the purposes of this section, "adequate warning" 16 33 means the same as defined in section 668D.12. 16 34 Sec. 35. NEW SECTION. 668D.15 WARNINGS TO THIRD PARTIES. 16 35 In a product liability action brought pursuant to this 17 1 chapter, based upon the failure to provide adequate warnings 17 2 or instructions, the manufacturer shall not be liable under 17 3 any of the following circumstances: 17 4 1. The claimant used the product in the claimant's 17 5 workplace, and the manufacturer provided warnings or 17 6 instructions to the claimant's employer, as the most practical 17 7 and feasible means of transmitting the warnings or 17 8 instructions to the claimant. 17 9 2. The product was sold as a component or material to be 17 10 incorporated into another product, and the manufacturer 17 11 provided warnings or instructions to the manufacturer's 17 12 immediate buyer, and the claimant was exposed to the component 17 13 or material after it was incorporated or converted into 17 14 another product. 17 15 3. The product was intended to be used or dispensed only 17 16 by or under the supervision of an expert and the manufacturer 17 17 employed means reasonably calculated to make warnings or 17 18 instructions available to the using or supervisory expert. As 17 19 used in this section, "means reasonably calculated to make 17 20 warnings or instructions available" does not require actual, 17 21 personal notice to the expert where such personal notice would 17 22 be impossible or impracticable. 17 23 Sec. 36. NEW SECTION. 668D.16 PRODUCT SELLER LIABILITY. 17 24 1. A product seller shall be liable for harm to the 17 25 claimant caused by a product as if the product seller were the 17 26 manufacturer of the product under either of the following 17 27 circumstances: 17 28 a. The manufacturer is not subject to service of process 17 29 under the laws of this state. 17 30 b. The court determines that the claimant would be unable 17 31 to enforce a judgment against the manufacturer. 17 32 2. A product seller other than a manufacturer is liable to 17 33 a claimant for the failure of the product involved in such 17 34 action to conform to a warranty made with respect to such 17 35 product if the claimant establishes by a preponderance of the 18 1 evidence all of the following: 18 2 a. The product seller sold such product. 18 3 b. The product seller made an express warranty as to such 18 4 product independent of any express warranty made by a 18 5 manufacturer as to such product. 18 6 c. The product failed to conform to the product seller's 18 7 warranty. 18 8 d. The failure of the product to conform to the product 18 9 seller's warranty caused the harm complained of by the 18 10 claimant. 18 11 3. A product seller other than a manufacturer is liable to 18 12 a claimant on the basis of negligence if the claimant 18 13 establishes by a preponderance of the evidence all of the 18 14 following: 18 15 a. The product seller sold the product involved in such 18 16 action. 18 17 b. The product seller did not exercise reasonable care in 18 18 either of the following: 18 19 (1) Assembling, inspecting, or maintaining such product. 18 20 (2) Passing on such warnings or instructions from such 18 21 product's manufacturer about the dangers and proper use of 18 22 such product. 18 23 c. Such failure to exercise reasonable care was a 18 24 proximate cause of the harm complained of by the claimant. 18 25 Sec. 37. NEW SECTION. 668D.17 ALCOHOL AND DRUG DEFENSE. 18 26 In a product liability action brought pursuant to this 18 27 chapter, a manufacturer shall not be liable if both of the 18 28 following occur: 18 29 1. The claimant was under the influence of intoxicating 18 30 alcohol or a drug not prescribed by a physician for use by the 18 31 claimant. 18 32 2. As a result of the influence of the alcohol or drug, 18 33 the claimant was more than fifty percent at fault for the harm 18 34 suffered by the claimant. 18 35 Sec. 38. NEW SECTION. 668D.18 SUBSEQUENT REMEDIAL 19 1 MEASURES. 19 2 1. In a product liability action brought pursuant to this 19 3 chapter, evidence of any measure taken by a manufacturer after 19 4 the occurrence of a claimant's harm which, if taken prior to 19 5 the claimant's harm, would have made the harm less likely to 19 6 occur is not admissible to prove liability. 19 7 2. Evidence described in subsection 1 may be admitted in a 19 8 court of law for either of the following reasons: 19 9 a. To prove ownership, control, or feasibility of 19 10 precautionary measures, if contested. 19 11 b. For impeachment purposes. 19 12 Sec. 39. NEW SECTION. 668D.19 EXPERT OPINION. 19 13 In a product liability action brought pursuant to this 19 14 chapter, expert technical, scientific, or medical opinion 19 15 shall not be admitted in a court of law unless both of the 19 16 following occur: 19 17 1. The expert is professionally qualified in the relevant 19 18 discipline. 19 19 2. The expert's opinion is corroborated by other objective 19 20 evidence that is consistent with generally accepted technical, 19 21 scientific, or medical principles. 19 22 Sec. 40. NEW SECTION. 668D.20 CONCERT OF ACTION. 19 23 1. In a product liability action brought pursuant to this 19 24 chapter, a manufacturer or product seller shall not be liable 19 25 to the claimant on any theory of express or implied agreement 19 26 among sellers, parallel behavior, or independent adherence to 19 27 industrywide standards unless the claimant proves, by a 19 28 preponderance of the evidence, that the seller engaged in 19 29 concert of action. 19 30 2. For the purposes of this section, "concert of action" 19 31 means the conscious and deliberate agreement, acknowledgement, 19 32 and collaborative participation in wrongful conduct by two or 19 33 more persons who do not have the relationship of master and 19 34 servant, principal and agent, parent and subsidiary or 19 35 affiliates, or employer and employee. 20 1 Sec. 41. NEW SECTION. 677.10A PREJUDGMENT INTEREST. 20 2 If any offer to confess judgment is made under this chapter 20 3 and is not accepted, and a subsequent trial results in a 20 4 judgment which is less than the offer to confess judgment, 20 5 prejudgment interest shall not be calculated or be subject to 20 6 recovery after the date of the offer to confess judgment. 20 7 Sec. 42. Sections 668.4 and 668.12, Code 2003, are 20 8 repealed. 20 9 Sec. 43. APPLICABILITY. The sections of this Act enacting 20 10 new chapter 668C shall be effective as to any civil suit for 20 11 damages commenced on or after the date of enactment of this 20 12 Act regardless of whether the claim arose prior to the date of 20 13 enactment. 20 14 DIVISION II 20 15 UNEMPLOYMENT COMPENSATION 20 16 Sec. 44. Section 85.60, Code 2003, is amended to read as 20 17 follows: 20 18 85.60 INJURIES WHILE IN EMPLOYMENT TRAINING OR EVALUATION. 20 19 A person participating in a school-to-work program referred 20 20 to in section 85.61, or receiving earnings while engaged in 20 21 employment training or while undergoing an employment 20 22 evaluation under the direction of a rehabilitation facility 20 23 approved for purchase-of-service contracts or for referrals by 20 24 the department of human services or the department of 20 25 education, who sustains an injury arising out of and in the 20 26 course of the school-to-work program participation, employment 20 27 training, or employment evaluation is entitled to benefits as 20 28 provided in this chapter, chapter 85A, chapter 85B, and 20 29 chapter 86. Notwithstanding the minimum benefit provisions of 20 30 this chapter, a person referred to in this section and 20 31 entitled to benefits under this chapter is entitled to receive 20 32 a minimum weekly benefit amount for a permanent partial 20 33 disability under section 85.34, subsection 2, or for a 20 34 permanent total disability under section 85.34, subsection 3, 20 35 equal to the weekly benefit amount of a person whose gross 21 1 weekly earnings are thirty-five percent of the statewide 21 2 average weekly wagecomputed pursuant to section 96.321 3 determined by the department of workforce development under 21 4 section 96.19, subsection 36, and in effect at the time of the 21 5 injury. 21 6 Sec. 45. Section 96.3, subsection 4, Code 2003, is amended 21 7 to read as follows: 21 8 4. DETERMINATION OF BENEFITS.With respect to benefit21 9years beginning on or after July 1, 1983, anAn eligible 21 10 individual's weekly benefit amount for a week of total 21 11 unemployment shall be an amount equal to the following 21 12 fractions of the individual's total wages in insured work paid 21 13 during that quarter of the individual's base period in which 21 14 such total wages were highest; thedirector shall determine21 15annually amaximum weekly benefit amount shall equaltothe 21 16 followingpercentagesamounts, to vary with the number of 21 17 dependents, of the statewide average weekly wage computed on 21 18 the basis of wages reported paid to employees in insured work 21 19which shall be effective the first day of the first full week21 20in Julyfor calendar year 2001: 21 21 If the The weekly Subject to the 21 22 number of benefit amount following maxi- 21 23 dependents shall equal the mumpercentage21 24 is: following frac-of the statewide21 25 tion of highaverageweekly 21 26 quarter wages: wage: 21 27 0 1/2353%$292.18 21 28 1 1/2255%$303.21 21 29 2 1/2157%$314.24 21 30 3 1/2060%$330.77 21 31 4 or more 1/1965%$358.34 21 32The maximum weekly benefit amount, if not a multiple of one21 33dollar shall be rounded to the lower multiple of one dollar.21 34However, until such time as sixty-five percent of the21 35statewide average weekly wage exceeds one hundred ninety22 1dollars, the maximum weekly benefit amounts shall be22 2determined using the statewide average weekly wage computed on22 3the basis of wages reported for calendar year 1981.As used 22 4 in this section "dependent" means dependent as defined in 22 5 section 422.12, subsection 1, paragraph "c", as if the 22 6 individual claimant was a taxpayer, except that an individual 22 7 claimant's nonworking spouse shall be deemed to be a dependent 22 8 under this section. "Nonworking spouse" means a spouse who 22 9 does not earn more than one hundred twenty dollars in gross 22 10 wages in one week. 22 11 Sec. 46. Section 96.3, subsection 5, Code 2003, is amended 22 12 to read as follows: 22 13 5. DURATION OF BENEFITS. The maximum total amount of 22 14 benefits payable to an eligible individual during a benefit 22 15 year shall not exceed the total of the wage credits accrued to 22 16 the individual's account during the individual's base period, 22 17 or twenty-six times the individual's weekly benefit amount, 22 18 whichever is the lesser. The director shall maintain a 22 19 separate account for each individual who earns wages in 22 20 insured work. The director shall compute wage credits for 22 21 each individual by crediting the individual's account with 22 22 one-third of the wages for insured work paid to the individual 22 23 during the individual's base period.However, the director22 24shall recompute wage credits for an individual who is laid off22 25due to the individual's employer going out of business at the22 26factory, establishment, or other premises at which the22 27individual was last employed, by crediting the individual's22 28account with one-half, instead of one-third, of the wages for22 29insured work paid to the individual during the individual's22 30base period.Benefits paid to an eligible individual shall be 22 31 charged against the base period wage credits in the 22 32 individual's account which have not been previously charged, 22 33 in the inverse chronological order as the wages on which the 22 34 wage credits are based were paid. However if the state "off 22 35 indicator" is in effect and if the individual is laid off due 23 1 to the individual's employer going out of business at the 23 2 factory, establishment, or other premises at which the 23 3 individual was last employed, the maximum benefits payable 23 4 shall be extended to thirty-nine times the individual's weekly 23 5 benefit amount, but not to exceed the total of the wage 23 6 credits accrued to the individual's account. 23 7 Sec. 47. Section 96.4, subsection 3, Code 2003, is amended 23 8 to read as follows: 23 9 3. a. The individual is able to work, is available for 23 10 work, and is earnestly and actively seeking work. To be 23 11 eligible under this subsection, the individual must: 23 12 (1) Be able and available for full-time work for which the 23 13 individual is fitted by prior training or experience. 23 14 (2) Reside in a locality where opportunities for work are 23 15 not less favorable than those in the locality where the 23 16 individual resided at the time of the individual's most recent 23 17 separation from employment. 23 18 (3) Keep a record of where and when the individual has 23 19 sought work and shall produce such record to the director upon 23 20 request. 23 21 (4) Actively seek work during periods of nonseasonal 23 22 operations where the individual has been customarily employed 23 23 in seasonal employment. 23 24 b. If an eligible individual is available for work for 23 25 less than a full week, the individual's weekly benefit amount 23 26 shall be reduced by one-sixth of such amount for each day the 23 27 individual is unavailable for work. If an individual is 23 28 unavailable for work for four days or more in a week, the 23 29 individual shall be considered unavailable for the entire 23 30 week. 23 31 c. This subsection is waived if the individual is deemed 23 32 partially unemployed, while employed at the individual's 23 33 regular job, as defined in section 96.19, subsection 38, 23 34 paragraph "b", unnumbered paragraph 1, or temporarily 23 35 unemployed as defined in section 96.19, subsection 38, 24 1 paragraph "c". The work search requirements of this 24 2 subsection and the disqualification requirement for failure to 24 3 apply for, or to accept suitable work of section 96.5, 24 4 subsection 3 are waived if the individual is not disqualified 24 5 for benefits under section 96.5, subsection 1, paragraph "h". 24 6 Sec. 48. Section 96.4, subsection 4, Code 2003, is amended 24 7 to read as follows: 24 8 4. The individual has been paid wages for insured work 24 9 during the individual's base period for a minimum of twenty 24 10 weeks in an amount at least one and one-quarter times the 24 11 wages paid to the individual during that quarter of the 24 12 individual's base period in which the individual's wages were 24 13 highest; provided that the individual has been paid wages for 24 14 insured work totaling at least three and five-tenths percent 24 15 of the statewide average annual wage for insured work, 24 16 computed for the preceding calendar year if the individual's 24 17 benefit year begins on or after the first full week in July 24 18 and computed for the second preceding calendar year if the 24 19 individual's benefit year begins before the first full week in 24 20 July, in that calendar quarter in the individual's base period 24 21 in which the individual's wages were highest, and the 24 22 individual has been paid wages for insured work totaling at 24 23 least one-half of the amount of wages required under this 24 24 subsection in the calendar quarter of the base period in which 24 25 the individual's wages were highest, in a calendar quarter in 24 26 the individual's base period other than the calendar quarter 24 27 in which the individual's wages were highest. The calendar 24 28 quarter wage requirements shall be rounded to the nearest 24 29 multiple of ten dollars. 24 30 If the individual has drawn benefits in any benefit year, 24 31 the individual must during or subsequent to that year, work in 24 32 and be paid wages for insured work totaling at leasttwo24 33hundred fifty dollarsten times the individual's weekly 24 34 benefit amount, as a condition to receive benefits in the next 24 35 benefit year. 25 1 Sec. 49. Section 96.4, Code 2003, is amended by adding the 25 2 following new subsection: 25 3 NEW SUBSECTION. 8. The individual has satisfied one one- 25 4 week waiting period during the individual's benefit year. To 25 5 satisfy the one-week waiting period, the individual, with 25 6 respect to the week in question, must be unemployed, have 25 7 filed a claim for benefits, and be eligible for benefits from 25 8 this state, but must not have received benefits from this or 25 9 another state, and must not be eligible for benefits from 25 10 another state. 25 11 Sec. 50. Section 96.5, subsection 4, unnumbered paragraph 25 12 1, Code 2003, is amended to read as follows: 25 13 For any week with respect to which the department finds 25 14 that the individual's total or partial unemployment is due to 25 15 a stoppage of work which exists because of a strike, lockout, 25 16 or labor dispute at the factory, establishment, or other 25 17 premises at which the individual is or was last employed, 25 18 provided that this subsection shall not apply if it is shown 25 19 to the satisfaction of the department that: 25 20 Sec. 51. Section 96.19, subsection 37, paragraph a, Code 25 21 2003, is amended by striking the paragraph and inserting in 25 22 lieu thereof the following: 25 23 a. Nineteen thousand two hundred dollars. 25 24 DIVISION III 25 25 WORKERS' COMPENSATION 25 26 Sec. 52. Section 85.3, subsection 1, Code 2003, is amended 25 27 to read as follows: 25 28 1. Every employer, not specifically excepted by the 25 29 provisions of this chapter, shall provide, secure, and pay 25 30 compensation according to the provisions of this chapter for 25 31 any and all personal injuries sustained by an employee arising 25 32 out of and in the course of the employment, and in such cases, 25 33 the employer shall be relieved from other liability for 25 34 recovery of damages or other compensation for such personal 25 35 injury. For the purposes of this chapter, a personal injury 26 1 sustained by an employee shall be characterized as either a 26 2 traumatic injury or a cumulative injury. 26 3 a. A traumatic injury is an injury to the body, the 26 4 impairment of health or a disease, not excluded from coverage 26 5 by this chapter, that comes about not through the natural 26 6 building up and tearing down of the human body, but because of 26 7 a traumatic or other hurt or damage to the health or body of 26 8 an employee. 26 9 b. A cumulative injury is an injury to the body that is 26 10 gradual and progressive in nature and does not necessarily 26 11 result from a sudden and unexpected traumatic event. 26 12 2. A traumatic injury does not arise out of and in the 26 13 course of employment for the purposes of this chapter unless 26 14 the traumatic injury is a natural incident of an employment 26 15 activity of the employee or a reasonable consequence of a 26 16 hazard associated with an employment activity of the employee, 26 17 and would be considered to be more than a slight injury by an 26 18 average person in the normal nonemployment life of the average 26 19 person. 26 20 3. A cumulative injury does not arise out of and in the 26 21 course of employment for the purposes of this chapter unless 26 22 all of the following are shown: 26 23 a. The cumulative injury is caused by, or is a significant 26 24 aggravation of a preexisting condition caused by, an 26 25 employment activity that is the single most substantial factor 26 26 contributing to the cumulative injury. 26 27 b. The cumulative injury, at the time of its occurrence, 26 28 would not be expected to occur as the result of the normal 26 29 aging process absent an employment activity of the employee. 26 30 c. The employment activity that is alleged to be the 26 31 single most substantial factor contributing to the cumulative 26 32 injury is not an activity commonly engaged in by the employee 26 33 or by an average person in the normal nonemployment life of 26 34 the employee or average person. 26 35 Sec. 53. Section 85.3, subsections 2, 3, and 4, Code 2003, 27 1 are amended by striking the subsections. 27 2 Sec. 54. NEW SECTION. 85.3A NOTICE TO NONRESIDENT 27 3 EMPLOYERS. 27 4 1. Any employer who is a nonresident of this state, for 27 5 whom services are performed within this state by any employee, 27 6 is deemed to be doing business in this state by virtue of 27 7 having such services performed and the employer and employee 27 8 shall be subject to the jurisdiction of the workers' 27 9 compensation commissioner and to all of the provisions of this 27 10 chapter, chapters 85A, 85B, 86, and 87, as to any and all 27 11 personal injuries sustained by the employee arising out of and 27 12 in the course of such employment within this state. In 27 13 addition, every corporation, individual, personal 27 14 representative, partnership, or association that has the 27 15 necessary minimum contact with this state shall be subject to 27 16 the jurisdiction of the workers' compensation commissioner, 27 17 and the workers' compensation commissioner shall hold such 27 18 corporation, individual, personal representative, partnership, 27 19 or association amenable to suit in this state in every case 27 20 not contrary to the provisions of the Constitution of the 27 21 United States. 27 22 2. Service of process or original notice upon a 27 23 nonresident employer may be performed as provided in section 27 24 617.3 or as provided in the Iowa rules of civil procedure. In 27 25 addition, service may be made on any corporation, individual, 27 26 personal representative, partnership, or association that has 27 27 the necessary minimum contact with this state as provided in 27 28 rule of civil procedure 1.305 within or without this state or, 27 29 if such service cannot be made, in any manner consistent with 27 30 due process of law prescribed by the workers' compensation 27 31 commissioner. 27 32 In addition to those persons authorized to receive personal 27 33 service as in civil actions as permitted by chapter 17A and 27 34 this chapter, such employer shall be deemed to have appointed 27 35 the secretary of state of this state as its lawful attorney 28 1 upon whom may be served or delivered any and all notices 28 2 authorized or required by the provisions of this chapter, 28 3 chapters 85A, 85B, 86, 87, and 17A, and to agree that any and 28 4 all such services or deliveries of notice on the secretary of 28 5 state shall be of the same legal force and validity as if 28 6 personally served upon or delivered to such nonresident 28 7 employer in this state. 28 8 This section does not limit or affect the right to serve an 28 9 original notice upon any corporation, individual, personal 28 10 representative, partnership, or association within or without 28 11 this state in any manner otherwise permitted by statute or 28 12 rule. 28 13 3. For purposes of this section, a nonresident employer is 28 14 any employer that is not a resident of Iowa as defined in 28 15 section 617.3. 28 16 Sec. 55. Section 85.27, subsection 4, Code 2003, is 28 17 amended to read as follows: 28 18 4. For purposes of this section, the employer is obliged 28 19 to furnish reasonable services and supplies to treat an 28 20 injured employee, and has the right to choose the care. The 28 21 treatment must be offered promptly and be reasonably suited to 28 22 treat the injury without undue inconvenience to the employee. 28 23 If the employee has reason to be dissatisfied with the care 28 24 offered, the employee should communicate the basis of such 28 25 dissatisfaction to the employer, in writing if requested, 28 26 following which the employer and the employee may agree to 28 27 alternate care reasonably suited to treat the injury. If the 28 28 employer and employee cannot agree on such alternate care, the 28 29 commissioner may, upon application and reasonable proofs of 28 30 the necessity therefor, allow and order other care. In an 28 31 emergency, the employee may choose the employee's care at the 28 32 employer's expense, provided the employer or the employer's 28 33 agent cannot be reached immediately. An application made 28 34 under this subsection shall be considered an original 28 35 proceeding for purposes of commencement and contested case 29 1 proceedings under section 85.26. The hearing shall be 29 2 conducted pursuant to chapter 17A no sooner than thirty days 29 3 from the date that the application is filed. Before a hearing 29 4 is scheduled, the parties may choose a telephone hearing or an 29 5 in-person hearing. A request for an in-person hearing shall 29 6 be approved unless the in-person hearing would be impractical 29 7 because of the distance between the parties to the hearing. 29 8 The workers' compensation commissioner shall issue a decision 29 9 within ten working days of receipt of an application for 29 10 alternate care made pursuant to a telephone hearing or within 29 11 fourteen working days of receipt of an application for 29 12 alternate care made pursuant to an in-person hearing. The 29 13 employer shall notify an injured employee of the employee's 29 14 ability to contest the employer's choice of care pursuant to 29 15 this subsection. 29 16 Sec. 56. Section 85.34, subsection 2, unnumbered paragraph 29 17 1, Code 2003, is amended to read as follows: 29 18 Compensation for permanent partial disability shall begin 29 19 at the termination of the healing period provided in 29 20 subsection 1. The compensation shall be in addition to the 29 21 benefits provided by sections 85.27 and 85.28. The 29 22 compensation shall be based only upon the extent of the 29 23 disability related to the injury received and upon the basis 29 24 of eighty percent per week of the employee's average spendable 29 25 weekly earnings, but not more than a weekly benefit amount, 29 26 rounded to the nearest dollar, equal to one hundred eighty- 29 27 four percent of the statewide average weekly wage paid 29 28 employees as determined by the department of workforce 29 29 development under section 96.19, subsection 36, and in effect 29 30 at the time of the injury. The minimum weekly benefit amount 29 31 shall be equal to the weekly benefit amount of a person whose 29 32 gross weekly earnings are thirty-five percent of the statewide 29 33 average weekly wage. For all cases of permanent partial 29 34 disability compensation shall be paid as follows: 29 35 Sec. 57. Section 85.34, Code 2003, is amended by adding 30 1 the following new subsection: 30 2 NEW SUBSECTION. 7. APPORTIONMENT. When an employee 30 3 suffers successive work-related injuries or illnesses, an 30 4 employer is not liable for that portion of an employee's 30 5 disability that is caused by any preexisting injury or illness 30 6 that is separate and discrete from the injury or illness for 30 7 which compensation is claimed. Evidence that an employee has 30 8 received a prior award for payment of benefits or entered into 30 9 a prior settlement of any claim arising under this chapter or 30 10 chapter 85A, 85B, or 86 creates a presumption that the 30 11 employee has suffered a preexisting work-related injury or 30 12 illness that is separate and discrete from the injury or 30 13 illness for which benefits are claimed and that the extent of 30 14 disability caused by that preexisting injury or illness has 30 15 been determined. 30 16 Sec. 58. Section 535.3, subsection 1, Code 2003, is 30 17 amended to read as follows: 30 18 1. Interest shall be allowed on all money due on judgments 30 19 and decrees of courts at a rate calculated according to 30 20 section 668.13, except for interest due pursuant to section 30 21 85.30 for which the rate shall betenfive percent per year. 30 22 DIVISION IV 30 23 OCCUPATIONAL SAFETY 30 24 Sec. 59. Section 88.16, subsections 1 and 3, Code 2003, 30 25 are amended to read as follows: 30 26 1. The commissioner shall conduct directly or by contract, 30 27 educational programs to provide an adequate supply of 30 28 qualified personnel to administer this chapter and 30 29 informational programs on the importance of and proper use of 30 30 adequate safety and health equipment. In making inspections 30 31 and investigations under this chapter, the commissioner's 30 32 representative shall inspect and investigate only those 30 33 businesses for which the representative received industry- 30 34 specific training. 30 35 3. The commissioner shall provide for the establishment 31 1 and supervision of programs for the education and training of 31 2 employers and employees in the recognition, avoidance, and 31 3 prevention of unsafe or unhealthful working conditions in 31 4 employments covered by this chapter, and consult with and 31 5 advise employers, employees, and organizations representing 31 6 employers and employees, as to effective means of preventing 31 7 occupational injuries and illnesses. The commissioner shall 31 8 increase training and consultation services prior to 31 9 implementation of new standards. 31 10 Sec. 60. NEW SECTION. 88.0A TITLE. 31 11 This chapter shall be known and may be cited as the 31 12 "Occupational Safety and Health Inspections and Audit Act". 31 13 SUBCHAPTER II 31 14 SAFETY AUDIT PRIVILEGE AND IMMUNITY 31 15 Sec. 61. NEW SECTION. 88.31 DEFINITIONS. 31 16 As used in this subchapter, unless the context otherwise 31 17 requires: 31 18 1. "Commissioner" means the labor commissioner appointed 31 19 pursuant to section 91.2 or the commissioner's designee. 31 20 2. "Inquiring party" means any party appearing before a 31 21 court or a presiding officer in an administrative proceeding 31 22 seeking to review or obtain an in camera review of a safety 31 23 audit report. 31 24 3. "Privilege" means the protections provided in regard to 31 25 a safety audit report as provided in this subchapter. 31 26 4. "Safety audit" means a voluntary evaluation of any 31 27 factory, plant, establishment, construction site, or other 31 28 area, workplace, or environment where work is performed by an 31 29 employee of an employer, of an activity or operation at the 31 30 business when the activity or operation is regulated under 31 31 state or federal occupational safety and health laws, rules, 31 32 or variance conditions, conducted by an employer, an employee 31 33 of the employer, or an independent contractor retained by the 31 34 employer, that is designed to identify historical or current 31 35 noncompliance with state and federal occupational safety and 32 1 health standards, laws, rules, or variance conditions, 32 2 discover hazards, and remedy noncompliance or improve 32 3 compliance with occupational safety and health laws. Once 32 4 notification is given to the commissioner, a safety audit 32 5 shall be completed within a reasonable time not to exceed six 32 6 months unless an extension is approved by the commissioner 32 7 based on reasonable grounds. 32 8 5. "Safety audit report" means a document or set of 32 9 documents generated and developed for the primary purpose and 32 10 in the course of or as a result of conducting a safety audit. 32 11 A "safety audit report" includes supporting information that 32 12 may include, but is not limited to, the report document 32 13 itself, observations, samples, analytical results, exhibits, 32 14 findings, opinions, suggestions, recommendations, conclusions, 32 15 drafts, memoranda, drawings, photographs, computer-generated 32 16 or electronically recorded information, maps, charts, graphs, 32 17 surveys, implementation plans, interviews, discussions, 32 18 correspondence, and communications related to the safety 32 19 audit. A "safety audit report" may include any of the 32 20 following components: 32 21 a. An executive summary prepared by the person conducting 32 22 the safety audit, which may include the scope of the safety 32 23 audit, the information gained in the safety audit, 32 24 conclusions, recommendations, exhibits, and appendices. 32 25 b. Memoranda and documents analyzing portions or all of 32 26 the report and discussing implementation issues. 32 27 c. An implementation plan which addresses correcting past 32 28 noncompliance, improving current compliance, or preventing 32 29 future noncompliance. 32 30 d. Periodic updates documenting progress in completing the 32 31 implementation plan. 32 32 Sec. 62. NEW SECTION. 88.32 PRIVILEGE. 32 33 1. Material included in a safety audit report generated 32 34 during a safety audit conducted after July 1, 2003, is 32 35 privileged and confidential and is not discoverable or 33 1 admissible as evidence in any civil or administrative 33 2 proceeding, except as otherwise provided in this chapter. The 33 3 safety audit report shall be labeled "SAFETY AUDIT REPORT: 33 4 PRIVILEGED DOCUMENT". Failure to label each document within 33 5 the report does not constitute a waiver of the safety audit 33 6 privilege or create a presumption that the privilege does or 33 7 does not apply. 33 8 2. A person shall not be compelled to testify in regard to 33 9 or produce a document included in a safety audit report in any 33 10 of the following circumstances: 33 11 a. If the testimony or document discloses any component 33 12 listed in section 88.31, subsection 5, that was made as part 33 13 of the preparation of a safety audit report and that is 33 14 addressed in a privileged part of a safety audit report. 33 15 b. If the person is any of the following: 33 16 (1) A person who conducted any portion of the safety audit 33 17 but did not personally observe the physical events of a safety 33 18 violation. 33 19 (2) A person to whom the results of the safety audit 33 20 report are disclosed under section 88.33, subsection 2. 33 21 (3) A custodian of the safety audit report. 33 22 3. A person who conducts or participates in the 33 23 preparation of a safety audit report and who has observed 33 24 physical events of a safety violation may testify about those 33 25 events but shall not be compelled to testify about or produce 33 26 documents related to the preparation of or any privileged part 33 27 of a safety audit or any component listed in section 88.31, 33 28 subsection 5. 33 29 4. An employee of a state agency or other governmental 33 30 employee shall not request, review, or otherwise use a safety 33 31 audit report during an agency inspection of a regulated 33 32 facility or operation, or an activity of a regulated facility 33 33 or operation. 33 34 5. A party asserting the privilege under this section has 33 35 the burden of establishing the applicability of the privilege. 34 1 6. The privilege provided in this section is in addition 34 2 to the confidentiality requirements applicable to educational 34 3 and informational programs under section 88.16. 34 4 Sec. 63. NEW SECTION. 88.33 WAIVER OF PRIVILEGE – 34 5 DISCLOSURE. 34 6 1. The privilege described in section 88.32 shall not 34 7 apply to the extent that the privilege is expressly waived in 34 8 writing by the employer who prepared the safety audit report 34 9 or caused the report to be prepared. 34 10 2. Disclosure of a safety audit report or any other 34 11 information generated by a safety audit does not waive the 34 12 privilege established in section 88.32 if the disclosure meets 34 13 any of the following criteria: 34 14 a. The disclosure is made to address or correct a matter 34 15 raised by the safety audit and the disclosure is made to any 34 16 of the following: 34 17 (1) A person employed by the employer, including temporary 34 18 and contract employees. 34 19 (2) A legal representative of the employer. 34 20 (3) An officer or director of the regulated business or a 34 21 partner of the employer. 34 22 (4) An independent contractor retained by the employer. 34 23 b. The disclosure is made under the terms of a 34 24 confidentiality agreement between any person and the employer 34 25 of the audited business. 34 26 3. A party to a confidentiality agreement described in 34 27 subsection 2, paragraph "b", who violates that agreement is 34 28 liable for damages caused by the disclosure and for any other 34 29 penalties stipulated in the confidentiality agreement. 34 30 4. Information that is disclosed under subsection 2, 34 31 paragraph "b", is confidential and is not subject to 34 32 disclosure under chapter 22. A governmental entity, 34 33 governmental employee, or governmental official who discloses 34 34 information in violation of this subsection is subject to the 34 35 penalty provided in section 22.6. 35 1 5. The protections provided by federal or state law shall 35 2 be afforded to individuals who disclose information to law 35 3 enforcement authorities. 35 4 6. The provisions of this chapter shall not abrogate the 35 5 protections provided by federal and state law regarding 35 6 confidentiality and trade secrets. 35 7 Sec. 64. NEW SECTION. 88.34 REQUIRED DISCLOSURE. 35 8 1. A court or a presiding officer in an administrative 35 9 hearing may require disclosure of a portion of a safety audit 35 10 report in a civil or administrative proceeding if the court or 35 11 presiding officer affirmatively determines, after an in camera 35 12 review, that any of the following exists: 35 13 a. The privilege is asserted for a fraudulent purpose. 35 14 b. The portion of the safety audit report is not subject 35 15 to the privilege under section 88.35. 35 16 c. The portion of the safety audit report shows evidence 35 17 of noncompliance with a state or federal occupational safety 35 18 and health standard or other law, rule, or variance condition 35 19 and appropriate efforts to achieve compliance with the 35 20 standard or other law, rule, or variance condition were not 35 21 promptly initiated and pursued with reasonable diligence after 35 22 discovery of noncompliance. 35 23 d. The portion of the safety audit report shows clear and 35 24 convincing evidence of substantial actual personal injury, 35 25 which information is not otherwise available. 35 26 e. The portion of the safety audit report shows a clear 35 27 and present danger to the public health or safety. 35 28 2. A party seeking disclosure under this section has the 35 29 burden of proving that subsection 1 applies. 35 30 3. A decision of a presiding officer in an administrative 35 31 hearing under subsection 1 may be directly appealed to the 35 32 district court without disclosure of the safety audit report 35 33 to any person unless so ordered by the court. 35 34 4. A determination of a court under this section is 35 35 subject to interlocutory appeal to an appropriate appellate 36 1 court. 36 2 5. If a court finds that a person claiming privilege under 36 3 this subchapter intentionally claimed the privilege for 36 4 material not privileged as provided in section 88.35, the 36 5 person is subject to a fine not to exceed one thousand 36 6 dollars. 36 7 6. Privilege provided in this subchapter does not apply if 36 8 the employer has been found in a civil or administrative 36 9 proceeding to have committed serious violations in this state 36 10 that constitute a pattern of continuous or repeated violations 36 11 of state or federal occupational safety and health laws, 36 12 administrative rules, or variance conditions, that were due to 36 13 separate and distinct events giving rise to the violations 36 14 within the three-year period prior to the date of disclosure. 36 15 Sec. 65. NEW SECTION. 88.35 MATERIALS NOT PRIVILEGED. 36 16 1. The privilege described in this subchapter does not 36 17 apply to any of the following: 36 18 a. A document, communication, datum, report, or other 36 19 information the commissioner is required to collect, develop, 36 20 retain, or report under a state or federal occupational safety 36 21 and health law, rule, or variance condition. 36 22 b. Information obtained by observation, sampling, or 36 23 monitoring by the commissioner or the commissioner's 36 24 authorized designee. 36 25 c. Information obtained from a source not involved in the 36 26 preparation of the safety audit report. 36 27 2. This section does not limit the right of a person to 36 28 agree to conduct a safety audit and disclose a safety audit 36 29 report. 36 30 Sec. 66. NEW SECTION. 88.36 REVIEW OF PRIVILEGED 36 31 DOCUMENTS. 36 32 1. The privileges created in this subchapter shall not 36 33 apply to criminal investigations or proceedings. A safety 36 34 audit report, supporting documents, and testimony relating 36 35 thereto may be obtained by a prosecutor's subpoena pursuant to 37 1 the rules of criminal procedure. If a safety audit report is 37 2 obtained, reviewed, or used in a criminal investigation or 37 3 proceeding, the administrative and civil evidentiary privilege 37 4 established in this subchapter is not waived or made 37 5 inapplicable for any purpose other than for the criminal 37 6 investigation or proceeding. 37 7 2. Notwithstanding the privilege established in this 37 8 subchapter, the commissioner may review information in a 37 9 safety audit report, but such review does not waive or make 37 10 the administrative and civil evidentiary privilege 37 11 inapplicable to the report. The commissioner shall not adopt 37 12 a rule or impose a condition that circumvents the purpose of 37 13 this subchapter. 37 14 3. If information is required to be made available to the 37 15 public by operation of a specific state or federal law, rule, 37 16 or variance condition, the commissioner shall notify the 37 17 person claiming the privilege of the potential for public 37 18 disclosure prior to obtaining such information under 37 19 subsection 1 or 2. 37 20 4. If privileged information is disclosed under subsection 37 21 2 or 3, on the motion of a party, a court or the presiding 37 22 officer in an administrative hearing shall suppress evidence 37 23 offered in any civil or administrative proceeding that arises 37 24 or is derived from review, disclosure, or use of information 37 25 obtained under this section if the review, disclosure, or use 37 26 is not authorized under section 88.35. A party having 37 27 received information under subsection 2 or 3 has the burden of 37 28 proving that the evidence offered did not arise and was not 37 29 derived from the review of privileged information. 37 30 Sec. 67. NEW SECTION. 88.37 VOLUNTARY DISCLOSURE OF 37 31 SAFETY VIOLATION – IMMUNITY. 37 32 1. An employer is eligible for immunity under this section 37 33 from the time the commissioner receives official notification 37 34 from the employer of a scheduled safety audit. An employer is 37 35 immune from any administrative or civil penalty associated 38 1 with the information disclosed if the employer makes a prompt 38 2 voluntary disclosure to the commissioner regarding an 38 3 occupational safety and health violation that is discovered 38 4 through the safety audit. The employer creates a rebuttable 38 5 presumption that the disclosure is voluntary by meeting the 38 6 criteria provided in subsection 2 at the time of disclosure. 38 7 To rebut the presumption that a disclosure is voluntary, the 38 8 commissioner or other party has the burden of proving that the 38 9 disclosure was not voluntary. Immunity is not provided if the 38 10 violations of state or federal occupational safety and health 38 11 law, rule, or variance condition are intentional or if the 38 12 violations of state or federal law, rule, or variance 38 13 condition resulted in substantial actual injury or imminent 38 14 and substantial risk of injury to an employee. 38 15 2. The disclosure of information is voluntary if all of 38 16 the following circumstances exist: 38 17 a. The disclosure arises out of a safety audit and relates 38 18 to privileged information as provided in section 88.32. 38 19 b. The person making the disclosure uses reasonable 38 20 efforts to pursue compliance and to correct the noncompliance 38 21 within a reasonable period of time after completion of the 38 22 safety audit in accordance with a remediation schedule 38 23 submitted to and approved by the commissioner. If evidence 38 24 shows that the noncompliance is due to the failure to obtain a 38 25 variance, reasonable effort may be demonstrated by the 38 26 submittal of a complete variance application within a 38 27 reasonable time. Disclosure of information required to be 38 28 reported by state or federal law, rule, or variance condition 38 29 is not considered to be voluntary disclosure and the immunity 38 30 provisions in this section are not applicable. 38 31 c. Occupational safety and health violations are 38 32 identified in a safety audit report and disclosed to the 38 33 commissioner before there is notice of a citizen suit or a 38 34 legal complaint by a third party. 38 35 d. Occupational safety and health violations are 39 1 identified in a safety audit report and disclosed to the 39 2 commissioner before the violations are reported by any person 39 3 not involved in conducting the safety audit or to whom the 39 4 audit report was disclosed. 39 5 3. If an employer has not provided the commissioner with 39 6 notification of a scheduled safety audit prior to performing 39 7 the audit, a disclosure of information is voluntary if the 39 8 occupational safety and health violations are identified in a 39 9 safety audit report and disclosed by certified mail to the 39 10 commissioner prior to the commissioner's commencement of an 39 11 investigation. 39 12 4. If a person is required to make a disclosure relating 39 13 to a specific issue under a specific variance condition or 39 14 under an order issued by the commissioner, the disclosure is 39 15 not voluntary with respect to that issue. 39 16 5. Except as provided in this section, this section does 39 17 not impair the authority of the commissioner to require a 39 18 technical or remedial action or to order injunctive relief. 39 19 6. Upon application to the commissioner, the time period 39 20 within which the disclosed violation is corrected under 39 21 subsection 2 may be extended if it is not practical to correct 39 22 the noncompliance within the reasonable period of time 39 23 initially approved by the commissioner. The commissioner 39 24 shall not unreasonably withhold the grant of an extension. If 39 25 the commissioner denies an extension, the commissioner shall 39 26 provide the requesting party with a written explanation of the 39 27 reasons for the denial. A request for de novo review of the 39 28 commissioner's decision may be made to the appropriate court. 39 29 7. Immunity provided under this section from 39 30 administrative or civil penalties does not apply under any of 39 31 the following circumstances: 39 32 a. If an employer has been found in a civil or 39 33 administrative proceeding to have committed serious violations 39 34 in this state that constitute a pattern of continuous or 39 35 repeated violations of occupational safety and health laws, 40 1 administrative rules, and variance conditions and that were 40 2 due to separate and distinct events giving rise to the 40 3 violations within the three-year period prior to the date of 40 4 disclosure. 40 5 b. If a violation of an occupational safety and health 40 6 law, administrative rule, variance condition, settlement 40 7 agreement, or order on consent, final order, or judicial order 40 8 results in a substantial economic benefit which gives the 40 9 violator a clear advantage over its business competitors. 40 10 8. In cases where the conditions of a voluntary disclosure 40 11 are not met but a good faith effort was made to voluntarily 40 12 disclose and resolve a violation detected in a safety audit, 40 13 the state regulatory authorities shall consider the nature and 40 14 extent of any good faith effort in deciding the appropriate 40 15 enforcement response and shall consider reducing any 40 16 administrative or civil penalties based on mitigating factors 40 17 showing that one or more of the conditions for voluntary 40 18 disclosure have been met. 40 19 9. The immunity provided by this section does not abrogate 40 20 the responsibility of a person as provided by applicable law 40 21 to report a violation, correct the violation, conduct 40 22 necessary remediation, or respond to third-party actions. 40 23 This chapter shall not be construed to confer immunity from 40 24 liability in any private civil action. 40 25 10. Information required by rule to be submitted to the 40 26 commissioner as part of a disclosure made pursuant to this 40 27 section is not privileged information. 40 28 Sec. 68. NEW SECTION. 88.38 OTHER PRIVILEGES NOT 40 29 AFFECTED. 40 30 This subchapter shall not limit, waive, or abrogate the 40 31 scope or nature of any statutory or common-law privilege, 40 32 including the work product doctrine and the attorney-client 40 33 privilege. 40 34 Sec. 69. NEW SECTION. 88.39 SAFETY AUDITOR TRAINING 40 35 PROGRAM. 41 1 A training program for, and standards for certification of, 41 2 safety auditors shall be developed and administered by the 41 3 commissioner. The program shall provide training on the 41 4 proper conduct of a safety audit; local, state, and federal 41 5 environmental ordinances, rules, and laws that apply to 41 6 businesses in this state; and the safety audit laws in this 41 7 state. The program shall be made available to small and large 41 8 business owners and operators, consulting engineers, 41 9 regulatory personnel, and citizens through the community 41 10 college system. A fee may be assessed for participation in 41 11 the program. Upon completion of the training program, program 41 12 participants may elect to be tested by the commissioner for 41 13 certification as a safety auditor for the purposes of this 41 14 subchapter. 41 15 Sec. 70. NEW SECTION. 88.40 SUMMARY. 41 16 On or before December 1 of each year, the commissioner 41 17 shall make available a summary of the number of safety audit 41 18 notices received, the violations, and the remediation status 41 19 of the violations reported pursuant to this subchapter during 41 20 the preceding fiscal year. 41 21 Sec. 71. NEW SECTION. 88.41 RULEMAKING. 41 22 The commissioner shall adopt rules pursuant to chapter 17A 41 23 necessary to administer this subchapter. 41 24 Sec. 72. NEW SECTION. 88.42 COSTS. 41 25 The necessary costs incurred by the commissioner under this 41 26 subchapter shall be funded from appropriations made to the 41 27 commissioner from the general fund of the state. 41 28 Sec. 73. CODIFICATION. The Code editor shall codify the 41 29 provisions of chapter 88, Code 2003, as amended in this Act, 41 30 as subchapter I of chapter 88 in the Code Supplement 2003. 41 31 DIVISION V 41 32 FINANCIAL SERVICES 41 33 Sec. 74. Section 535.8, subsection 2, paragraph b, 41 34 unnumbered paragraph 2, Code 2003, is amended to read as 41 35 follows: 42 1 The lender shall not charge the borrower for the cost of 42 2 revenue stamps or real estate commissions which are paid by 42 3 the seller. Collection of anycostcosts other than as 42 4 expressly permitted by this lettered paragraph isprohibited42 5 allowed, unless expressly prohibited by other state or federal 42 6 law. 42 7 Sec. 75. Section 537.2502, subsections 3 and 6, Code 2003, 42 8 are amended to read as follows: 42 9 3. A delinquency charge shall not be collected under 42 10 subsection 1, paragraph "a", on an installmentwhichthat is 42 11 paid in full within ten days after its scheduled or deferred 42 12 installment due date even though an earlier maturing 42 13 installment or a delinquency or deferral charge on an earlier 42 14 installment may not have been paid in full. For purposes of 42 15 this subsection, payments associated with a precomputed 42 16 transaction are applied first to current installments and then 42 17 to delinquent installments. 42 18 6. A delinquency charge shall not be collected under 42 19 subsection 4 on a paymentwhichassociated with a precomputed 42 20 transaction that is paid in full on or before its scheduled or 42 21 deferred due date even though an earlier maturing payment or a 42 22 delinquency or deferred charge on an earlier payment has not 42 23 been paid in full. For purposes of this subsection, payments 42 24 are applied first to amounts due for the current billing cycle 42 25 and then to delinquent payments. 42 26 Sec. 76. Section 537.2601, subsection 1, Code 2003, is 42 27 amended to read as follows: 42 28 1.Except as provided in subsection 2, withWith respect 42 29 to a credit transaction other than a consumer credit 42 30 transaction, the parties may contract for the payment by the 42 31 debtor of any finance or other charge as permitted by law. 42 32Except with respect to debt obligations issued by a42 33government, governmental agency or instrumentality, in42 34calculating any finance charge contracted for, any month may42 35be counted as one-twelfth of a year, but a day is to be43 1counted as one three-hundred sixty-fifth of a year.43 2 Sec. 77. Section 557.7, Code 2003, is amended to read as 43 3 follows: 43 4 557.7 CONTINGENT REMAINDERS. 43 5AExcept as provided in section 558.68A, a contingent 43 6 remainder shall take effect, notwithstanding any determination 43 7 of the particular estate, in the same manner in which it would 43 8 have taken effect if it had been an executory devise or a 43 9 springing or shifting use, and shall, as well as such 43 10 limitations, be subject to the rule respecting remoteness 43 11 known as the rule against perpetuities, exclusive of any other43 12supposed rule respecting limitations to successive generations43 13or double possibilities. 43 14 Sec. 78. NEW SECTION. 558.68A EXCEPTION TO RULE AGAINST 43 15 PERPETUITIES. 43 16 1. Notwithstanding section 558.68, a rule of law against 43 17 perpetuities, a suspension of the power of alienation of the 43 18 title to property, or a law restricting or limiting the 43 19 duration of trusts shall not apply with respect to any 43 20 interest in real or personal property held in trust if the 43 21 instrument creating the trust specifically states that such 43 22 rule or the provisions of section 558.68 shall not apply to 43 23 the trust and if either the trustee of the trust has unlimited 43 24 power to sell all trust assets, or one or more persons, one of 43 25 whom may be the trustee, has unlimited power to terminate the 43 26 entire trust. 43 27 2. A trust of real or personal property created by an 43 28 employer as part of a stock bonus plan, pension plan, 43 29 disability or death benefit plan, or profit-sharing plan, for 43 30 the benefit of some or all the employer's employees, to which 43 31 contributions are made by the employer or employees, or both, 43 32 for the purposes of distributing to the employees or their 43 33 beneficiaries the earnings or the principal, or both, such 43 34 trust is not invalid as violating the rule against 43 35 perpetuities or any other law restricting or limiting the 44 1 duration of trusts; but the trust may continue for the time 44 2 that is necessary to accomplish the purposes for which it was 44 3 created. 44 4 3. Subsection 1 shall be effective for interests in real 44 5 or personal property in trust created by an inter vivos or 44 6 testamentary trust or will executed on or after July 1, 2003, 44 7 or pursuant to the exercise of a general power of appointment 44 8 on or after July 1, 2003. For the purposes of this 44 9 subsection, "general power of appointment" means a power that 44 10 is exercisable in favor of the individual possessing the 44 11 power, the person's estate, the person's creditors, or the 44 12 creditors of the person's estate. 44 13 DIVISION VI 44 14 ENVIRONMENTAL PROVISIONS 44 15 Sec. 79. NEW SECTION. 455A.14 FEES – USE. 44 16 Any fee collected by the department pursuant to a provision 44 17 of the Code of Iowa or the Iowa administrative code shall be 44 18 used for the purpose for which the fee is collected. 44 19 Sec. 80. Section 455B.131, Code 2003, is amended by adding 44 20 the following new subsection: 44 21 NEW SUBSECTION. 6A. "Indoor source" means any emission 44 22 unit or air contaminant source which is not directly vented or 44 23 directly exhausted to the outside atmosphere. "Indoor source" 44 24 includes, without limitation, any air exchange through general 44 25 ventilation, windows, doors, and cracks. 44 26 Sec. 81. Section 455B.133, subsection 6, Code 2003, is 44 27 amended to read as follows: 44 28 6. a. Require, by rules, notice of the construction of 44 29 any air contaminant source, other than an indoor source, which 44 30 may cause or contribute to air pollution, and the submission 44 31 of plans and specifications to the department, or other 44 32 information deemed necessary, for the installation of air 44 33 contaminant sources and related control equipment. The rules 44 34 shall allow the owner or operator of a major stationary source 44 35 to elect to obtain a conditional permit in lieu of a 45 1 construction permit. The rules relating to a conditional 45 2 permit for an electric power generating facility subject to 45 3 chapter 476A and other major stationary sources shall allow 45 4 the submission of engineering descriptions, flow diagrams and 45 5 schematics that quantitatively and qualitatively identify 45 6 emission streams and alternative control equipment that will 45 7 provide compliance with emission standards. Such rules shall 45 8 not specify any particular method to be used to reduce 45 9 undesirable levels of emissions, nor type, design, or method 45 10 of installation of any equipment to be used to reduce such 45 11 levels of emissions, nor the type, design, or method of 45 12 installation or type of construction of any manufacturing 45 13 processes or kinds of equipment, nor specify the kind or 45 14 composition of fuels permitted to be sold, stored, or used 45 15 unless authorized by subsection 4 of this section. 45 16 b. The commission may give technical advice pertaining to 45 17 the construction or installation of the equipment or any other 45 18 recommendation. 45 19 c. A notice or construction permit shall not be required 45 20 pursuant to this section for any indoor source. 45 21 d. A notice or construction permit shall not be required 45 22 to be issued pursuant to this section for any emission unit 45 23 placed into service before the effective date of this Act 45 24 which would have been an indoor source if placed into service 45 25 on or after that date. 45 26 Sec. 82. Section 455B.134, subsection 3, paragraph a, Code 45 27 2003, is amended to read as follows: 45 28 a.NoAn air contaminant source, other than an indoor 45 29 source, shall not be installed, altered so that it 45 30 significantly affects emissions, or placed in use unless a 45 31 construction or conditional permit has been issued for the 45 32 source. A permit shall not be required to be issued pursuant 45 33 to this section for any emission unit placed in service before 45 34 the effective date of this Act which would have been an indoor 45 35 source if placed into service on or after that date. 46 1 Sec. 83. Section 455B.134, subsection 3, Code 2003, is 46 2 amended by adding the following new paragraph: 46 3 NEW PARAGRAPH. g. The department shall not establish any 46 4 permit, registration, licensing, preconstruction notification, 46 5 or recordkeeping requirements for indoor sources. However, 46 6 this paragraph shall not limit the authority of the department 46 7 to implement any of the following: 46 8 (1) The emission limitations adopted by the administrator 46 9 of the United States environmental protection agency under 46 10 section 111 or 112 of the federal Clean Air Act. 46 11 (2) The maximum achievable control technologies required 46 12 pursuant to Title V of the federal Clean Air Act Amendments of 46 13 1990. 46 14 (3) The prevention of significant deterioration 46 15 regulations adopted by the administrator of the United States 46 16 environmental protection agency under the federal Clean Air 46 17 Act, 42 U.S.C. } 74-79. 46 18 Sec. 84. Section 455B.135, Code 2003, is amended to read 46 19 as follows: 46 20 455B.135 LIMIT ON AUTHORITY. 46 21Nothing contained in thisThis division II or chapter 459, 46 22 subchapter II, shall not be deemed to grant to the department 46 23 or the director any authority or jurisdiction with respect to 46 24 air pollution existing solely within residences; or solely 46 25 within commercial and industrial plants, works, or shops under 46 26 the jurisdiction of chapters 88 and 91; or indoor sources; or 46 27 to affect the relations between employers and employees with 46 28 respect to, or arising out of, any condition of air pollution. 46 29 Sec. 85. Section 481B.3, Code 2003, is amended to read as 46 30 follows: 46 31 481B.3 INVESTIGATIONS – STATE LIST. 46 32 1. The director shall conduct investigations on fish, 46 33 plants, and wildlife in order to develop information relating 46 34 to population, distribution, habitat needs, limiting factors, 46 35 and other biological and ecological data to determine 47 1 management measures necessary for their continued ability to 47 2 sustain themselves successfully.On the basis of these47 3determinations and other available scientific and commercial47 4data, which may include consultation with scientists and47 5others who may have specialized knowledge, learning, or47 6experience, the47 7 2. The commission shall pursuant to chapter 17Apromulgate47 8a ruleadopt rules listing those species of fish, plants, and 47 9 wildlife which are determined to be endangered or threatened 47 10 within the state. The state list shall only include fish, 47 11 plants, and wildlife which are included on the lists provided 47 12 in section 481B.5, subsections 2 through 4. 47 13 3. The commission shall review the state list of 47 14 endangered and threatened species at least every two years and 47 15 may amend the list. 47 16 Sec. 86. Section 481B.5, subsection 1, Code 2003, is 47 17 amended by striking the subsection. 47 18 DIVISION VII 47 19 PUBLIC WORKS CONTRACTS 47 20 Sec. 87. NEW SECTION. 72.6 PUBLIC WORKS PROJECTS – 47 21 CONTRACTOR QUALIFICATIONS. 47 22 1. DEFINITIONS. As used in this section, unless the 47 23 context otherwise provides: 47 24 a. "Public owner" means a public body including the state 47 25 and a political subdivision of the state, an officer, 47 26 official, agency, authority, board, or commission of the state 47 27 or of a political subdivision of the state, or an institution 47 28 supported in whole or in part by public funds. 47 29 b. "Public works" means a building or other construction 47 30 work which is constructed under the control of a public owner 47 31 and is paid for in whole or in part with funds of a public 47 32 owner. "Public works" does not include any work done by or on 47 33 behalf of a drainage or levee district or any work funded by 47 34 federal funds where federal procurement policy applicable to 47 35 the use of the federal funds is inconsistent with the 48 1 requirements of this section. 48 2 c. "Public works project" or "project" means the 48 3 construction, maintenance, or repair of public works. 48 4 2. QUALIFICATIONS OF BIDDERS. Prior to awarding a 48 5 contract to perform a public works project pursuant to a 48 6 competitive bidding procedure, which contract authorizes the 48 7 expenditure of twenty-five thousand dollars or more in public 48 8 funds, a public owner shall tabulate all bids received and 48 9 shall determine who is the lowest responsible bidder by 48 10 considering, in addition to the amount of the bid, all of and 48 11 only the following: 48 12 a. The past experience of the bidder in the performance of 48 13 similar projects. 48 14 b. The qualifications of the bidder to perform the type of 48 15 work required by the contract. 48 16 c. The bidder's record of reliability and timely 48 17 completion of past projects. 48 18 d. Proof of the financial responsibility of the bidder. 48 19 3. PROHIBITED CRITERIA. In determining who is the lowest 48 20 responsible bidder for purposes of awarding a contract to 48 21 perform a public works project, a public owner shall not do 48 22 any of the following: 48 23 a. Select a bidder based in whole or in part on a 48 24 consideration of whether the bidder's employees belong to or 48 25 are represented by a labor union or a labor organization. 48 26 b. Require that the bidder selected enter into an 48 27 agreement that directly or indirectly limits or requires the 48 28 bidder to recruit, train, or hire employees from a particular 48 29 source to perform work on the public works project. 48 30 c. Require that the bidder selected enter into an 48 31 agreement that directly or indirectly requires the bidder to 48 32 offer particular types or amounts of health insurance, life 48 33 insurance, or disability insurance coverage or retirement 48 34 benefits to employees hired by the bidder to perform work on 48 35 the public works project. 49 1 4. BIDDING DOCUMENTS. The criteria described in this 49 2 section that are required to be considered by the public owner 49 3 in determining who is the lowest responsible bidder shall be 49 4 included in any document requesting or inviting bids on public 49 5 works projects subject to this section. 49 6 EXPLANATION 49 7 This bill makes several changes in Iowa law relating to 49 8 various statutory and regulatory requirements that impact 49 9 business, employers and employees, property rights, and the 49 10 environment. 49 11 DIVISION I – LIABILITY REFORM. 49 12 CIVIL RIGHTS ACT. This division defines a person under the 49 13 Iowa civil rights Act to include individuals who supervise 49 14 employees and individuals who are coemployees. 49 15 SUPERSEDEAS BONDS. The division permits the state or any 49 16 of its political subdivisions to request the district court 49 17 upon a showing of good cause to stay all proceedings under the 49 18 order or judgment being appealed and waive the requirement 49 19 that the state or any of its political subdivisions file a 49 20 supersedeas bond upon appeal to the Iowa supreme court. 49 21 The division further provides that if the judgment or order 49 22 appealed from is for money, an appeal bond shall not exceed 49 23 any of the following amounts, excluding costs: 49 24 1. One hundred percent of the amount of the money judgment 49 25 up to and including $1 million. 49 26 2. One million dollars, if the amount of the money 49 27 judgment is in excess of $1 million, up to and including $100 49 28 million. 49 29 3. Twenty-five million dollars, if the amount of the money 49 30 judgment is in excess of $100 million. 49 31 PUNITIVE DAMAGES STANDARD ACT. The division establishes 49 32 the punitive damages standard Act and provides a standard of 49 33 actual malice for liability for punitive damages, provides for 49 34 a clear and convincing evidence standard, allows a bifurcated 49 35 trial on the question of whether the defendant is liable for 50 1 punitive damages, and generally limits the amount of a 50 2 punitive damages award to twice the amount of compensatory 50 3 damages. 50 4 NONECONOMIC DAMAGE AWARDS ACT. The division establishes 50 5 the noneconomic damage awards Act and provides that an award 50 6 for noneconomic damages in a personal injury action shall not 50 7 exceed $250,000 or the amount awarded in economic damages, 50 8 whichever amount is greater. Special findings are required by 50 9 the trier of fact where liability is assessed in a personal 50 10 injury or wrongful death action. 50 11 JOINT AND SEVERAL LIABILITY ACT. The division establishes 50 12 the joint and several liability Act and requires that in any 50 13 action brought pursuant to this division, each defendant shall 50 14 be held liable only for the amount of damages allocated to 50 15 that defendant in direct proportion to that defendant's 50 16 percentage of fault. A separate judgment would be issued 50 17 against each defendant for the actual amount of damages 50 18 assessed against each defendant. In order to determine the 50 19 amount of damages to be entered against each defendant, the 50 20 court shall, with regard to each defendant, multiply the total 50 21 amount of damages recoverable by the plaintiff by the 50 22 percentage of each defendant's fault, and that amount shall be 50 23 the maximum amount of damages recoverable against each 50 24 defendant. The division further allows the trier of fact to 50 25 assess damages against any person who contributed to the 50 26 alleged injury, death, or damage to property, regardless of 50 27 whether the person was, or could have been, named as a party 50 28 to the action. 50 29 PRODUCT LIABILITY ACT. The division establishes the 50 30 product liability Act and adopts defenses to absolute 50 31 liability, including but not limited to defenses based upon 50 32 misuse or alteration, state-of-the-art at time of manufacture, 50 33 compliance with government standards, inherent characteristics 50 34 known to the ordinary person, unavoidably unsafe products, and 50 35 warnings to an appropriate third party. The division further 51 1 limits the liability of nonmanufacturing sellers and prohibits 51 2 enterprise liability by requiring the plaintiff to prove that 51 3 the particular product that caused the plaintiff's harm was 51 4 produced by the defendant manufacturer. The division contains 51 5 provisions for admission of expert testimony and evidence of 51 6 subsequent remedial measures. 51 7 PREJUDGMENT INTEREST. The division limits recovery of 51 8 prejudgment interest in any pending or proposed action where 51 9 an offer to confess judgment is made, but is not accepted, and 51 10 a subsequent trial results in a judgment that is less than the 51 11 amount in the offer to confess judgment. In such a case, no 51 12 prejudgment interest is to be calculated or is recoverable 51 13 after the date of the offer to confess judgment. 51 14 DIVISION II – UNEMPLOYMENT COMPENSATION. This division 51 15 provides for the amount of an eligible individual's maximum 51 16 weekly benefit to be equal to a specific dollar amount 51 17 calculated by varying fractions of the statewide average 51 18 weekly wage reported in calendar year 2001, depending on the 51 19 number of the individual's dependents. A conforming amendment 51 20 is made to Code section 85.60. 51 21 The division eliminates the provision for additional wage 51 22 credits in cases of plant closings. 51 23 The division provides for additional requirements for an 51 24 individual to be considered able and available to work to 51 25 preclude individuals from being eligible for benefits who are 51 26 not able or available to work full-time, who change the 51 27 individual's residence to a locality where opportunities to 51 28 work are less favorable, and to encourage individuals to seek 51 29 work by requiring individuals to keep a record of the 51 30 individual's work search and to seek work during periods of 51 31 the individual's customary nonseasonal work periods. The 51 32 division provides that an individual's weekly benefit amount 51 33 shall be reduced by one-sixth for each day an individual is 51 34 unavailable for work and that if the individual is unavailable 51 35 for more than four days in one week, the individual shall be 52 1 considered unavailable for the entire week. 52 2 The division requires an individual to qualify for benefits 52 3 to have been paid wages for insured work during the 52 4 individual's base period for at least 20 weeks in addition to 52 5 existing requirements and if the individual draws benefits in 52 6 any benefit year, the individual must be paid wages at least 52 7 10 times the individual's weekly benefit amount in that year 52 8 or in a subsequent year to be eligible for benefits in the 52 9 subsequent benefit year. 52 10 The division requires an individual to wait one week after 52 11 applying for benefits before the individual will be eligible 52 12 for benefits. 52 13 An individual is disqualified for any week of unemployment 52 14 due to a strike or lockout at the individual's last place of 52 15 employment. 52 16 The division provides that taxable wages may equal a 52 17 specific amount of $19,200 (unless the federal taxable wage 52 18 base is higher), rather than an amount varying by year 52 19 calculated by multiplying the statewide average weekly wage by 52 20 66.66 percent, multiplied by 52. The amount of $19,200 52 21 represents 66.66 percent of the statewide average weekly wage 52 22 for 2001 ($551.29), multiplied by 52 and rounded to the next 52 23 highest multiple of $100. 52 24 DIVISION III – WORKERS' COMPENSATION. This division makes 52 25 several changes to workers' compensation law. 52 26 Code section 85.3, subsection 1, is amended to provide that 52 27 for the purposes of Code chapters 85, 85A, and 85B, a personal 52 28 injury sustained by an employee shall be characterized as 52 29 either a traumatic injury or a cumulative injury. A traumatic 52 30 injury is defined to mean an injury to the body, the 52 31 impairment of health, or a disease not excluded from coverage 52 32 that comes about not through the natural building up and 52 33 tearing down of the human body, but because of a traumatic or 52 34 other hurt or damage to the health or body of an employee. A 52 35 cumulative injury is defined to mean an injury to the body 53 1 that is gradual and progressive in nature and does not 53 2 necessarily result from a sudden and unexpected traumatic 53 3 event. 53 4 The bill provides that a traumatic injury does not arise 53 5 out of and in the course of employment for workers' 53 6 compensation purposes unless the traumatic injury is a natural 53 7 incident of an employment activity of the employee or a 53 8 reasonable consequence of a hazard associated with an 53 9 employment activity of the employee, and is a traumatic injury 53 10 that would be considered to be more than slight by an average 53 11 person in the normal nonemployment life of the average person. 53 12 The bill provides that a cumulative injury does not arise 53 13 out of and in the course of employment for workers' 53 14 compensation purposes unless the cumulative injury is caused 53 15 by, or is a significant aggravation of a preexisting condition 53 16 caused by, an employment activity that is the single most 53 17 substantial factor contributing to the cumulative injury; the 53 18 cumulative injury, at the time of its occurrence, would not be 53 19 expected to occur as the result of the normal aging process of 53 20 the employee, absent an employment activity of the employee; 53 21 and the employment activity that is alleged to be the single 53 22 most substantial factor contributing to the cumulative injury 53 23 is not an activity commonly engaged in by the employee or by 53 24 an average person in the normal nonemployment life of the 53 25 employee or average person. 53 26 Subsections 2, 3, and 4, relating to nonresident employers, 53 27 are stricken from Code section 85.3 and moved without change 53 28 to a new Code section 85.3A. 53 29 Code section 85.27, subsection 4, is amended to provide 53 30 that a hearing on an application for alternate medical care 53 31 made under this subsection cannot be held any sooner than 30 53 32 days from the date the application is filed. 53 33 Code section 85.34, subsection 2, is amended to provide 53 34 that an employer's liability to pay workers' compensation 53 35 benefits for permanent partial disability is reduced to the 54 1 extent that a portion of the resulting disability is not 54 2 related to the work-related injury received for which benefits 54 3 are presently claimed. 54 4 Code section 85.34 is amended by adding a new subsection 54 5 providing that when an employee suffers successive work- 54 6 related injuries or illnesses, an employer is not liable to 54 7 pay workers' compensation benefits for that portion of an 54 8 employee's disability that is caused by any preexisting injury 54 9 or illness that is separate and discrete from the injury or 54 10 illness for which workers' compensation is claimed. The new 54 11 subsection also provides that evidence that an employee has 54 12 received a prior award for payment of benefits or entered into 54 13 a prior settlement of any claim arising under the workers' 54 14 compensation laws of this state creates a presumption that the 54 15 employee has suffered a preexisting work-related injury or 54 16 illness that is separate and discrete from the injury or 54 17 illness for which workers' compensation is claimed and that 54 18 the extent of the employee's disability caused by that 54 19 preexisting injury or illness has been determined. 54 20 Code section 535.3, subsection 1, is amended to provide 54 21 that interest on weekly workers' compensation payments is paid 54 22 at the rate of 5 percent instead of 10 percent per year. 54 23 DIVISION IV – OCCUPATIONAL SAFETY. This division relates 54 24 to the occupational safety and health provisions of the Code 54 25 by requiring that the labor commissioner's representatives 54 26 have industry-specific training for the businesses they 54 27 inspect, that the commissioner increase training and 54 28 consultation services prior to the implementation of new 54 29 standards, and establishing provisions granting privilege and 54 30 immunity protections to an employer that conducts a safety 54 31 audit that meets certain criteria. 54 32 The division provides that a safety audit is a voluntary 54 33 evaluation of a business or of an activity or operation at the 54 34 business when the activity or operation is regulated under 54 35 state or federal occupational safety and health laws, rules, 55 1 or variance conditions. The audit is conducted by an 55 2 employer, an employee, or an independent contractor, and is 55 3 designed to identify historical or current noncompliance with 55 4 occupational safety and health laws, rules, ordinances, or 55 5 variance conditions; discover hazards; and remedy 55 6 noncompliance or improve compliance with occupational safety 55 7 and health laws. Once notification is given to the 55 8 commissioner, the audit must be completed within a reasonable 55 9 time not to exceed six months. 55 10 Material included in a safety audit report and generated 55 11 during the audit is privileged and confidential and is not 55 12 discoverable or admissible as evidence in any civil or 55 13 administrative proceeding. The bill provides circumstances 55 14 under which certain persons shall not be compelled to testify 55 15 about or produce a document related to a safety audit. The 55 16 privilege may be waived and circumstances are provided under 55 17 which information is not privileged. 55 18 Disclosure of a portion of an audit may be required by a 55 19 court or presiding officer in a civil or administrative 55 20 proceeding. The division provides an appeal process. If a 55 21 court finds that a person claiming privilege intentionally 55 22 claimed the privilege for material that is not entitled to be 55 23 privileged, the person is subject to a fine not to exceed 55 24 $1,000. Privilege does not apply if an employer has been 55 25 found in a civil or administrative proceeding to have 55 26 committed serious violations in this state that constitute a 55 27 pattern of continuous or repeated violations. 55 28 Privilege for safety audits does not apply to criminal 55 29 proceedings; however, if an audit report is obtained, 55 30 reviewed, or used in a criminal investigation or proceeding, 55 31 or reviewed by the commissioner, the administrative and civil 55 32 evidentiary privilege is not waived or made inapplicable. 55 33 The division provides that an employer is eligible for 55 34 immunity from the time the commissioner receives official 55 35 notification from the employer of a scheduled safety audit. 56 1 An employer is immune from any administrative or civil penalty 56 2 associated with the information disclosed if the employer 56 3 makes a prompt voluntary disclosure to the commissioner 56 4 regarding the violation discovered. The division provides for 56 5 the circumstances under which disclosure is considered 56 6 voluntary, and provides that immunity does not apply if the 56 7 violations are intentional or if the violations resulted in 56 8 substantial actual injury or imminent and substantial risk of 56 9 injury to an employee. Immunity also does not apply if an 56 10 employer is found to have committed serious violations that 56 11 constitute a pattern of continuous or repeated violations or 56 12 if a violation results in a substantial economic benefit which 56 13 gives the violator a clear advantage over its business 56 14 competitors. 56 15 The division requires the commissioner to develop and 56 16 administer a training program and standards for certification 56 17 of safety auditors, and to annually make available a summary 56 18 of the number of safety audit notices received, the 56 19 violations, and the remediation status of the violations 56 20 reported during the preceding fiscal year. 56 21 DIVISION V – FINANCIAL SERVICES. Division V modifies 56 22 several Code provisions related to financial transactions. 56 23 The amendment to Code section 535.8 provides that a lender 56 24 may collect other costs in connection with a loan unless 56 25 expressly prohibited by other state or federal law. Charges 56 26 expressly permitted by the paragraph include such items as 56 27 credit reports, appraisal fees, attorney's opinions, 56 28 abstracting fees, recorder's fees, inspection fees, mortgage 56 29 guarantee insurance charges, surveying charges, termite 56 30 inspection fees, and the cost of a title guaranty issued by 56 31 the Iowa finance authority. Charges which are expressly not 56 32 permitted include the cost of revenue stamps or real estate 56 33 commissions which are paid by the seller. 56 34 The amendment to Code section 537.2502 addresses late fee 56 35 calculations on consumer credit accounts. The amendment to 57 1 Code section 537.2502 provides that, with respect to a 57 2 consumer credit transaction that is not pursuant to an open- 57 3 end credit arrangement and other than a consumer lease or 57 4 consumer rental agreement, a delinquency charge on a current 57 5 paid-in-full installment associated with a precomputed 57 6 transaction shall not be collected, even if a delinquency on 57 7 an earlier installment exists. By limiting the provision's 57 8 applicability to precomputed transactions, the bill allows a 57 9 delinquency charge to be collected on an installment not part 57 10 of a precomputed transaction, where the current installment 57 11 due is paid in full within 10 days after its scheduled or 57 12 deferred installment due date but an earlier maturing 57 13 installment or a delinquency or deferral charge on an earlier 57 14 installment has not been paid in full. The bill, with respect 57 15 to such transactions, eliminates the requirement that payments 57 16 be applied first to a current installment and then to 57 17 delinquent amounts. 57 18 The amendment likewise provides that with respect to 57 19 delinquency charges related to an open-end credit transaction, 57 20 a delinquency charge could be collected on a payment 57 21 associated with a transaction other than a precomputed 57 22 transaction where the current payment due is paid in full on 57 23 or before its scheduled or deferred due date but where an 57 24 earlier maturing payment or a delinquency or deferred charge 57 25 on an earlier payment has not been paid in full. The bill, 57 26 with respect to such transactions, eliminates the requirement 57 27 that payments be applied first to a current payment and then 57 28 to delinquent amounts. 57 29 The amendment to Code section 537.2601 provides that for 57 30 transactions other than consumer credit transactions, the 57 31 parties may contract for any charge permitted by law. 57 32 Division V also creates an exception to the statutory rule 57 33 against perpetuities codified in Code section 558.68, which is 57 34 a legal rule related to invalidating interests in property 57 35 that are intended to belong to a person at some point in the 58 1 future, but for which the actual determination of ownership 58 2 cannot or will not be accomplished within a specified period 58 3 of time. The purpose of the rule is to keep property from 58 4 being frozen in trust beyond a certain period of years. 58 5 Division V allows a creator of a trust to suspend, 58 6 explicitly in the trust document, the rule from applying to a 58 7 particular trust, but only if the trustee has the power to 58 8 sell all trust assets or if one or more people, including the 58 9 trustee, has the power to terminate the trust. 58 10 Division V further allows suspension of the rule in 58 11 situations where an employer creates a stock bonus plan, 58 12 pension plan, disability or death benefit plan, or profit- 58 13 sharing plan, in trust, for the benefit of the employer's 58 14 employees, for the purpose of distributing to the employees or 58 15 their beneficiaries earnings or principal or both. 58 16 This exception applies to all interests in real or personal 58 17 property by testamentary or inter vivos trust or will, or to 58 18 the exercise of a general power of appointment, executed on or 58 19 created after July 1, 2003. 58 20 DIVISION VI – ENVIRONMENTAL PROVISIONS. This division of 58 21 the bill relates to environmental matters by providing for the 58 22 use of fees collected by the department of natural resources, 58 23 applying certain air quality requirements to indoor emission 58 24 units or air contaminant sources, and relating to endangered 58 25 species lists of the state. 58 26 The division provides that any fee collected by the 58 27 department pursuant to a provision of the Code of Iowa or the 58 28 Iowa administrative code shall be used for the purpose for 58 29 which the fee is collected. 58 30 The division defines "indoor source" as any emission unit 58 31 or air contaminant source which is not directly vented or 58 32 directly exhausted to the outside atmosphere which includes, 58 33 without limitation, any air exchange through general 58 34 ventilation, windows, doors, and cracks. 58 35 The division provides that indoor sources and indoor 59 1 sources that would have qualified as an indoor source and were 59 2 placed into service prior to the effective date of the bill 59 3 are not subject to certain notices of construction and other 59 4 related requirements which are required for other air 59 5 contaminant sources. 59 6 The division provides that the department of natural 59 7 resources shall not establish any permit, registration, 59 8 licensing, preconstruction notification, or recordkeeping 59 9 requirements for indoor sources. The division provides that 59 10 the prohibition shall not limit the department's authority to 59 11 implement the emission limitations adopted by the United 59 12 States environmental protection agency under the federal Clean 59 13 Air Act, the maximum achievable control technologies required 59 14 pursuant to the federal Clean Air Act Amendments of 1990, and 59 15 the prevention of significant deterioration regulations 59 16 adopted by the United States environmental protection agency 59 17 under the federal Clean Air Act. 59 18 The division also amends Code section 481B.3 relating to 59 19 the endangered and threatened fish, plants, and wildlife lists 59 20 of the state. The division provides that the state lists of 59 21 endangered and threatened fish, plants, and wildlife shall 59 22 only include fish, plants, and wildlife listed on the federal 59 23 lists of endangered and threatened fish, plants, and wildlife. 59 24 DIVISION VII – PUBLIC WORKS CONTRACTS. This division of 59 25 the bill relates to establishing contractor qualifications on 59 26 public works projects. The division applies to the award of a 59 27 contract by a public owner to perform a public works project 59 28 pursuant to a competitive bidding procedure, when the contract 59 29 authorizes the expenditure of $25,000 or more in public funds. 59 30 The division provides that a public owner shall tabulate 59 31 all bids received and determine who is the lowest responsible 59 32 bidder by only considering, in addition to the amount of the 59 33 bid, the past experience of the bidder in performing similar 59 34 projects; the qualifications of the bidder to perform the type 59 35 of work required by the contract; the bidder's record of 60 1 reliability and timely completion of past projects; and proof 60 2 of the financial responsibility of the bidder. 60 3 The division also provides that a public owner, in making a 60 4 determination of who is the lowest responsible bidder for 60 5 purposes of awarding a contract to perform a public works 60 6 project, is prohibited from considering whether a bidder's 60 7 employees belong to a labor union or organization; requiring 60 8 that the bidder selected must enter into an agreement that 60 9 directly or indirectly requires the bidder to recruit, train, 60 10 or hire employees from a particular source to perform work on 60 11 the public works project; or requiring that the bidder 60 12 selected must enter into an agreement that directly or 60 13 indirectly requires the bidder to offer particular types or 60 14 amounts of health insurance, life insurance, or disability 60 15 insurance coverage or retirement benefits to employees hired 60 16 by the bidder to perform work on the public works project. 60 17 In addition, the division requires that all bidding 60 18 documents requesting or inviting bids on a public works 60 19 project indicate what criteria shall be considered in awarding 60 20 a contract to the lowest responsible bidder. 60 21 The division defines "public owner" as a public body 60 22 including the state, a political subdivision of the state, an 60 23 officer, agency, authority, board, or commission of the state 60 24 or of a political subdivision, or an institution supported in 60 25 whole or in part by public funds. 60 26 The division defines "public works" as a building or other 60 27 construction work which is constructed under the control of a 60 28 public owner and is paid for in whole or in part with funds of 60 29 a public owner. The division provides that "public works" 60 30 does not include any work done by or on behalf of a drainage 60 31 or levee district or any work funded by federal funds where 60 32 federal procurement policy applicable to the use of the 60 33 federal funds is inconsistent with the requirements of this 60 34 division. 60 35 The division defines "public works project" or "project" as 61 1 the construction, maintenance, or repair of public works. 61 2 LSB 2957XC 80 61 3 ec/cf/24
Text: SSB01154 Text: SSB01156 Text: SSB01100 - SSB01199 Text: SSB Index Bills and Amendments: General Index Bill History: General Index
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