REPORT TITLE:
Tort Liability


DESCRIPTION:
Limits tort liability for breach of a contract; allows a pleader
to use fictitious names to name defendants whose responsibility
for alleged wrongful acts or whose identities are not known with
reasonable certainty, and brings these defendants within the
statute of limitation. (CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        186
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO TORT LIABILITY. 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 663, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "�663-   Tort liability for breach of contract; punitive
 
 5 damages.  No person may recover damages, including punitive
 
 6 damages, in tort for a breach of a contract in the absence of
 
 7 conduct that:
 
 8      (1)  Violated a duty that is independently recognized by
 
 9           principles of tort law; and
 
10      (2)  Transcended the breach of the contract."
 
11      SECTION 2.  Section 663-17, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "�663-17  Third-party practice; enforcement of right to
 
14 [contribution.] contribution; unnamed defendants and third party
 
15 defendants.  (a)  A pleader may, as provided by the rules of
 
16 court, bring in as a third-party defendant a person not a party
 
17 to the action who is or may be liable to the pleader or to the
 
18 person claiming against the pleader, for all or part of the claim
 
19 asserted against the pleader in the action, whether or not
 
20 liability for the claim is admitted by the pleader.  A third-
 

 
Page 2                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1 party defendant is bound by the adjudication of the third-party
 
 2 plaintiff's liability to the plaintiff as well as of the third-
 
 3 party defendant's own liability to the plaintiff or to the third-
 
 4 party plaintiff.
 
 5      (b)  A pleader may either (1) state as a cross-claim against
 
 6 a coparty any claim that the coparty is or may be liable to the
 
 7 cross-claimant for all or part of a claim asserted in the action
 
 8 against the cross-claimant; or (2) move for judgment for
 
 9 contribution against any other joint judgment debtor, where in a
 
10 single action a judgment has been entered against joint
 
11 tortfeasors one of whom has discharged the judgment by payment or
 
12 has paid more than the joint tortfeasor's pro rata share thereof.
 
13 If relief can be obtained as provided in this paragraph no
 
14 independent action shall be maintained to enforce the claim for
 
15 contribution.
 
16      (c)  As among joint tortfeasors who in a single action are
 
17 adjudged to be such, the last paragraph of section 663-12 applies
 
18 only if the issue of proportionate fault is litigated between
 
19 them by pleading in that action.
 
20      (d)  A pleader may name as parties to a lawsuit under
 
21 fictitious names defendants or third-party defendants whose names
 
22 or whose responsibility for the acts complained of the pleader
 
23 has been unable to ascertain with reasonable certainty.  The
 

 
Page 3                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1 pleading shall set forth a description of any unidentified
 
 2 defendant or third-party defendant and all actions already
 
 3 undertaken in a diligent and good faith effort to ascertain the
 
 4 true identity or responsibility of any unidentified defendant or
 
 5 third-party defendant.  The pleader may later make known to the
 
 6 court the identity of a defendant or third-party defendant named
 
 7 as a party to the lawsuit under a fictitious name.  For the
 
 8 purposes of statutes of limitation, later identified defendants
 
 9 or third-party defendants shall be considered to have been named
 
10 as parties to the lawsuit on the date the pleading was filed
 
11 first naming them under fictitious names.  Parties shall exercise
 
12 reasonable diligence in ascertaining the identity or
 
13 responsibility of unnamed defendants or third-party defendants.
 
14 The court may make any order that justice requires to protect any
 
15 party from undue burden and expense or substantial prejudice in
 
16 any further proceedings involving the later identified defendants
 
17 or third-party defendants."
 
18      SECTION 3.  Section 607-14.5, Hawaii Revised Statutes, is
 
19 amended to read as follows:
 
20      "�607-14.5  Attorneys' fees and costs in civil actions.(a)
 
21 In any civil action in this State where a party seeks money
 
22 damages or injunctive relief, or both, against another party, and
 
23 the case is subsequently decided, the court may, as it deems
 

 
Page 4                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1 just, assess against either party, whether or not the party was a
 
 2 prevailing party, and enter as part of its order, for which
 
 3 execution may issue, a reasonable sum for attorneys' fees[,] and
 
 4 costs, in an amount to be determined by the court upon a specific
 
 5 finding that all or a portion of the party's claim or defense was
 
 6 frivolous[.] as provided in subsection (b).
 
 7      (b)  In determining the award of attorneys' fees and costs
 
 8 and the amounts to be awarded, the court must find in writing
 
 9 that all or a portion of the claims or defenses made by the party
 
10 are frivolous and are not reasonably supported by the facts and
 
11 the law in the civil action.  In determining whether claims or
 
12 defenses are frivolous, the court may consider whether the party
 
13 alleging that the claims or defenses are frivolous had submitted
 
14 to the party asserting the claims or defenses a request for their
 
15 withdrawal as provided in subsection (c).  If the court
 
16 determines that only a portion of the claims or defenses made by
 
17 the party are frivolous, the court shall determine a reasonable
 
18 sum for attorneys' fees and costs in relation to the frivolous
 
19 claims or defenses.
 
20      (c)  A party alleging that claims or defenses are frivolous
 
21 may submit to the party asserting the claims or defenses a
 
22 request for withdrawal of the frivolous claims or defenses, in
 
23 writing, identifying those claims or defenses and the reasons
 

 
Page 5                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1 they are believed to be frivolous.  If the party withdraws the
 
 2 frivolous claims or defenses within a reasonable length of time,
 
 3 the court shall not award attorney's fees and costs based on
 
 4 those claims or defenses under this section."
 
 5      SECTION 4.  Section 663-10.9, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "[[]�663-10.9[]]  Abolition of joint and several liability;
 
 8 exceptions.  Joint and several liability for joint tortfeasors as
 
 9 defined in section 663-11 is abolished except in the following
 
10 circumstances:
 
11      (1)  For the recovery of economic damages against joint
 
12           tortfeasors in actions involving injury or death to
 
13           persons[.];
 
14      (2)  For the recovery of economic and noneconomic damages
 
15           against joint tortfeasors in actions involving:
 
16           (A)  Intentional torts;
 
17           (B)  Torts relating to environmental pollution;
 
18           (C)  Toxic and asbestos-related torts;
 
19           (D)  Torts relating to aircraft accidents;
 
20           (E)  Strict and products liability torts; or
 
21           (F)  Torts relating to motor vehicle accidents except
 
22                as provided in paragraph (4)[.];
 
23      (3)  For the recovery of noneconomic damages in actions,
 

 
Page 6                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1           other than those enumerated in paragraph (2), involving
 
 2           injury or death to persons against those tortfeasors
 
 3           whose individual degree of negligence is found to be
 
 4           twenty-five per cent or more under section 663-31.
 
 5           Where a tortfeasor's degree of negligence is less than
 
 6           twenty-five per cent, then the amount recoverable
 
 7           against that tortfeasor for noneconomic damages shall
 
 8           be in direct proportion to the degree of negligence
 
 9           assigned[.]; and
 
10      (4)  For recovery of noneconomic damages in motor vehicle
 
11           accidents involving tort actions relating to the
 
12           maintenance and design of highways including actions
 
13           involving guardrails, utility poles, street and
 
14           directional signs, and any other highway-related device
 
15           upon a showing that the affected joint tortfeasor was
 
16           given reasonable prior notice of a prior occurrence
 
17           under similar circumstances to the occurrence upon
 
18           which the tort claim is based.  In actions in which the
 
19           affected joint tortfeasor has not been shown to have
 
20           had such reasonable prior notice, the recovery of
 
21           noneconomic damages shall be as provided in paragraph
 
22           (3).
 
23      (5)  Provided, however, that joint and several liability for
 

 
Page 7                                                     186
                                     S.B. NO.           S.D. 1
                                                        H.D. 1
                                                        C.D. 1

 
 1           economic and noneconomic damages for claims against
 
 2           design professionals, as defined in chapter 672, and
 
 3           certified public accountants, as defined in chapter
 
 4           466, is abolished in actions not involving physical
 
 5           injury or death to persons."
 
 6      SECTION 5.  This Act does not affect rights and duties that
 
 7 matured, penalties that were incurred, and proceedings that were
 
 8 begun, before its effective date.
 
 9      SECTION 6.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 7.  This Act shall take effect upon its approval.