Arizona Limits on Lawsuits, Proposition 301 (1994)

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Arizona Limits on Lawsuits, also known as Proposition 301 was on the November 8, 1994 ballot in Arizona as a veto referendum. It was defeated.

Proposition 301 would have imposed a time limit for filing certain lawsuits, changed the collateral source rule, created insurer rights of recovery, created governmental and other exemptions, permitted certain defenses that bar recovery and provided payment of damages for future losses.[1]

Election results

Arizona Proposition 301 (1994)
ResultVotesPercentage
Defeatedd No656,40761.89%
Yes 404,231 38.11%

Official results via: Arizona Secretary of State

Text of measure

OFFICIAL TITLE

Ordering the submission to the people of an act amending Sections 9-500.02 and 12-550, Arizona revised statutes; amending Title 12, Chapter 6, Arizona revised statutes , by adding Article 12; transferring and renumbering Section 12-565, Arizona revised statutes, for placement in Title 12, Chapter 6, Article 12, Arizona revised , as Section 12-713; amending Section 12-713, Arizona revised statutes as transferred and renumbered; amending Title 12, Chapter 6, Article 12, Arizona revised statures, as added by Section 3 of this act, by adding Sections 12-714 and 12-715; amending Section 12-820.02, Arizona revised statutes; repealing Sections 12-820.03 and 12-821, Arizona revised statutes; amending Title 12, Chapter 7, Article 2, Arizona revised statutes, by adding a new Section 12-821; amending Section 12-822, Arizona revised statutes; amending Title 12, Chapter 7, Arizona revised statutes, by adding Article 11; amending Sections 12-2505 and 12-2506, Arizona revised statutes; amending Title 12, Arizona revised statutes, by adding Chapter 17; transferring and renumbering Title 12, Chapter 5.1, Article 2, Arizona revised statutes, as Title 12, Chapter 17, Article 1, Arizona revised statutes; transferring and renumbering existing Sections 12-581 through 12-594, respectively, as Sections 12-2601 through 12-2614; repealing the article heading of former Title 12, Chapter 5.1, Article 2, Arizona revised statutes; amending Sections 12-2602, 12-2605, 12-2606, 12-2607, 12-2609, 12-2610, 12-2612 and 12-2613, Arizona revised statutes as transferred and renumbered; amending Section 33-1551, Arizona revised statutes; changing the designation of Title 33, Chapter 12, Arizona revised statutes, to "Liabilities and duties on property used for education and recreation;" amending Section 48-818, Arizona revised statutes, relating to tort reform.

DESCRIPTIVE TITLE

An act imposing a time limit for filing certain lawsuits; changing the collateral source rule; creating insurer rights of recovery; creating governmental and other immunities; permitting certain defenses that bar recovery; providing periodic payment of damages for future losses.[1][2]

Constitutional changes

Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 9-500.02, Arizona Revised Statutes, is amended to read:
9-500.02. Emergency medical aid or assistance to other public bodies; limitation on liability
A. A city or town or its officers and employees, or a private fire or ambulance company whose services are procured by a city or town or its officers and employees OR A PROPERTY OWNER, ITS OFFICERS OR EMPLOYEES OR A TENANT OR A LICENSED HEALTH CARE PROVIDER AS DEFINED IN SECTION 12-561 WHO PERFORMS EMERGENCY MEDICAL AID, when rendering emergency medical aid provided by an emergency medical technician, an intermediate emergency medical technician or a paramedic who is certified by the director of the department of health serviced pursuant to section 36-2205 , is not liable for civil or other damages to the recipient of the emergency medical aid as the result of any act or omission in rendering such aid or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the sick or injured person. This subsection does not apply if the person providing emergency medical aid is guilty of gross negligence or intentional misconduct. The immunity provided for in this subsection does not extend to an emergency medical technician, an intermediate emergency medical technician or a paramedic while operating a motor vehicle.
B. A city or town, or an employee of a city or town , OR A LICENSED HEALTH CARE PROVIDER if requested by a public body to assist at a traffic accident on a public right-of-way or to render emergency aid at an emergency occurrence outside of the corporate limits of such city or town is not liable for any civil or other damages as the result of any act or omission by the city or town or an employee of the city or town at the traffic accident, rendering emergency care or as the result of any act or failure to act to provide or arrange for further medical treatment or care for an injured person. This subsection does not apply if the city or town, or an employee of the city or town OR A LICENSED HEALTH CARE PROVIDER, while providing assistance at such a traffic accident, rendering such emergency care or acting or failing to act to provide such further medical treatment or care, is guilty of gross negligence.
C. The provisions of this section shall not abrogate the right of an employee who is injured while performing services as provided in subsection A OF THIS SECTION to recover benefits for which he may be eligible under title 23, chapter 6 from the city or town.
D. Nothing in this section limits a plaintiff's right to recover civil damages from any applicable uninsured motorist coverage or underinsured motorist coverage.
E. THE PROVISIONS OF THIS SECTION DO NOT APPLY TO SERVICES PROVIDED IN AN EMERGENCY ROOM.
Sec. 2. Section 12-550, Arizona Revised Statutes, is amended to read:
12-550. General limitation
A. Actions other than for recovery of real property for which no limitation is otherwise prescribed shall be brought within four years after the cause of action accrues, and not afterward.
B. WHERE NO OTHER STATUTE OF LIMITATION APPLIES OR THE STATUTE IS TOLLED, AN ACTION MAY NOT BE COMMENCED MORE THAN TWELVE YEARS AFTER THE CAUSE OF ACTION ACCRUES EXCEPT IN CASES OF FRAUD BY A DEFENDANT THAT PREVENTED THE DISCOVERY OF A CAUSE OF ACTION WITHIN THE APPLICABLE LIMITATION PERIOD.
C. FOR PURPOSES OF THIS SECTION, A CAUSE OF ACTION ACCRUES WHEN THE INJURED PARTY REALIZES HE OR SHE HAS BEEN INJURED AND KNOWS OR REASONABLY SHOULD KNOW THE CAUSE, SOURCE, ACT, EVENT, INSTRUMENTALITY OR CONDITION WHICH CAUSED OR CONTRIBUTED TO THE INJURY. IN THE CASE OF AN INCAPACITATED PERSON OR A MINOR, THE CAUSE OF ACTION ACCRUES WHEN AN ADULT PERSON WHO HAS LEGAL CUSTODY OF THE INCAPACITATED PERSON OR THE MINOR, OR THE ESTATE OF THE INCAPACITATED PERSON OR THE MINOR, KNOWS THAT THE INCAPACITATED PERSON OR THE MINOR HAS BEEN INJURED AND KNOWS OR REASONABLY SHOULD HAVE KNOWN THE CAUSE, SOURCE, ACT, EVENT, INSTRUMENTALITY OR CONDITION WHICH CAUSED OR CONTRIBUTED TO THE INJURY.
Sec. 3. Title 12, chapter 6, Arizona Revised Statutes, is amended by adding article 12, to read:
ARTICLE 12. MISCELLANEOUS
12-711. Affirmative defense
IN ANY CIVIL ACTION, THE FINDER OF FACT MAY FIND THE DEFENDANT NOT LIABLE IF THE DEFENDANT PROVES THAT THE CLAIMANT WAS UNDER THE INFLUENCE OF AN INTOXICATING LIQUOR OR A DRUG AND AS A RESULT OF THAT INFLUENCE THE CLAIMANT WAS AT LEAST FIFTY PER CENT RESPONSIBLE FOR THE ACCIDENT OR EVENT THAT CAUSED THE CLAIMANT'S HARM.
12-712. Liability for damages that result during a criminal act IN ANY CIVIL ACTION, A DEFENDANT IS NOT LIABLE FOR DAMAGES THAT THE PLAINTIFF INCURS IF THE PLAINTIFF IS HARMED AS A RESULT OF THE NEGLIGENCE OR GROSS NEGLIGENCE OF ANY DEFENDANT WHILE THE PLAINTIFF IS ATTEMPTING TO COMMIT, COMMITTING OR FLEEING FROM A FELONY CRIMINAL ACT.
Sec. 4. Section 12-565, Arizona Revised Statutes, is transferred and renumbered for placement in title 12, chapter 6, article 12, Arizona Revised Statutes, as section 12-713 and, as so renumbered, is amended to read:
12-713. Personal injury actions; collateral source evidence
A. In any medical malpractice PERSONAL INJURY action against a licensed health care provider, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States social security act, any state or federal workers' compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of income-disability or medical, hospital, dental or other health care services to establish that any cost, expense, or loss claimed by the plaintiff as a result of the injury or death is subject to reimbursement or indemnification from such collateral sources. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of ANY OF THE FOLLOWING:
1. Any amount which the plaintiff has paid or contributed to secure his right to any such benefits. or
2. That recovery from the defendant is subject to a lien. or
3. That a provider of such collateral benefits has a statutory right of recovery against the plaintiff as reimbursement for such benefits. or
4. That the provider of such benefits has a right of subrogation to the rights of the plaintiff in the medical malpractice PERSONAL INJURY action.
B. Evidence introduced pursuant to this section shall be admissible for the purpose of considering the damages claimed by the plaintiff and shall be accorded such weight as the trier of the facts chooses to give it.
C. Unless otherwise expressly permitted to do so by statute, no provider of collateral benefits, as described in subsection A, shall recover any amount against the plaintiff as reimbursement for such benefits nor shall such provider be subrogated to the rights of the plaintiff.
Sec. 5. Title 12, chapter 6, article 12, Arizona Revised Statutes, as added by section 3 of this act, is amended by adding sections 12-714 and 12-715, to read:
12-714. Subrogation
A. AN INSURANCE POLICY, SUBSCRIPTION CONTRACT OR EVIDENCE OF COVERAGE THAT PROVIDES MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE BENEFITS MAY CONTAIN A PROVISION GIVING THE INSURER, HOSPITAL OR MEDICAL SERVICE CORPORATION OR HEALTH CARE SERVICES ORGANIZATION A LIEN AGAINST ANY PROCEEDS THAT ARE COLLECTED IN A CLAIM FOR INJURIES AGAINST A THIRD PARTY BY THE INSURED PERSON FROM THE PERSON, FIRM OR CORPORATION AGAINST WHICH CLAIM IS MADE TO THE EXTENT OF THE ACTUAL LOSS INCURRED OR ACTUAL COSTS OF SERVICES PROVIDED OR TO BE PROVIDED, UNDER THE POLICY, SUBSCRIPTION CONTRACT OR EVIDENCE OF COVERAGE.
B. ANY INSURER WHICH PROVIDES IN THE POLICY ANY LIEN OR SUBROGATION RIGHTS UNDER THIS SECTION SHALL ADVISE THE NAMED INSURED IN WRITING OF THE LIEN OR SUBROGATION RIGHTS IN THE POLICY IN A MANNER PRESCRIBED BY THE DEPARTMENT OF INSURANCE. THIS SUBSECTION SHALL APPLY TO ALL NEW POLICIES ISSUED IN THIS STATE OR RENEWALS OF POLICIES IN THIS STATE WHICH OCCUR ON OR AFTER DECEMBER 31,1993.
C. THE LIEN SHALL BE PERFECTED BY MAILING TO THE INSURED AT HIS LAST KNOWN ADDRESS WITHIN SIXTY DAYS AFTER THE FIRST BENEFITS OR SERVICES ARE PROVIDED A NOTICE OF LIEN SETTING FORTH THE AMOUNT PAID OR PROVIDED TO THAT DATE. WHEN TIMELY PERFECTED, THE LIEN APPLIES TO ALL BENEFITS THAT ARE PAID OR SERVICES THAT ARE PROVIDED BEFORE SETTLEMENT OR JUDGEMENT BECAUSE OF THE CONDITION THAT IS THE SUBJECT OF THE CLAIM.
D. AN ATTORNEY WHO REPRESENTS A PERSON MAKING A CLAIM FOR PERSONAL INJURIES AT THE TIME OF JUDGEMENT OR SETTLEMENT, WHO HAS NOTICE OF THE LIEN AND WHO DOES NOT HONOR THE LIEN IS LIABLE FOR THE LIEN. IN NO EVENT SHALL THE ATTORNEY BE LIABLE FOR THE EXCESS IF THE JUDGEMENT OR SETTLEMENT RECOVERED BY THE INSURED IS LESS THAN THE LIEN AMOUNT. THE LIEN SHALL NOT ATTACH TO THE ATTORNEY'S FEES AND COSTS PORTION OF THE JUDGEMENT OR SETTLEMENT.
E. EXCEPT AS PROVIDED IN SECTION 36-2903, AN INSURANCE POLICY, SUBSCRIPTION CONTRACT OR EVIDENCE OF COVERAGE THAT PROVIDES MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE BENEFITS MAY CONTAIN A PROVISION MAKING THE BENEFITS EXCESS OVER OTHER VALID AND COLLECTIBLE INSURANCE OR SIMILAR PROGRAMS THAT MAY PROVIDE PAYMENT OF COVERED MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE EXPENSES. THE DIRECTOR SHALL BY RULE DESIGNATE WHICH POLICIES ARE PRIMARY OVER OTHER POLICIES AND DESCRIBE THE MANNER IN WHICH BENEFITS UNDER ALL POLICIES COORDINATE. FOR PURPOSES OF THIS SUBSECTION "POLICY" SHALL INCLUDE INSURANCE POLICIES, SUBSCRIPTION CONTRACTS AND EVIDENCES OF COVERAGE THAT PROVIDE MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE BENEFITS AND SHALL ALSO INCLUDE SIMILAR PROGRAMS THAT MAY PROVIDE PAYMENT OF COVERED MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE EXPENSES.
F. THE INSURANCE POLICY OR OTHER HEALTH CARE PLAN WHICH PROVIDES MEDICAL, SURGICAL, HOSPITAL OR OTHER HEALTH CARE BENEFITS MAY PROVIDE AN OFFSET AGAINST ANY OTHER FIRST-PARTY COVERAGE PROVIDED BY THE SAME POLICY SUCH AS UNINSURED MOTORIST OR UNDERINSURED MOTORIST COVERAGE. THE PROVIDER MAY, BUT NEED NOT, ASSERT AN INDEPENDENT ACTION TO ENFORCE THE LIEN.
G. AS AN ALTERNATIVE TO THE LIEN PROVIDED IN SUBSECTION A, A PROVIDER OF BENEFITS MAY BE SUBROGATED TO THE RIGHTS OF THOSE RECEIVING THE BENEFITS IN THE AMOUNT AND EXTENT OF THE BENEFITS PROVIDED. THE PROVIDER MAY, BUT NEED NOT, ASSERT AN INDEPENDENT ACTION TO ENFORCE THE LIEN OR SUBROGATION RIGHTS. ANY ACTION BROUGHT MUST BE COMMENCED WITHIN THE PERIOD ALLOWED BY THE APPLICABLE STATUTE OF LIMITATIONS.
Sec. 6. Section 12-820.02, Arizona Revised Statutes, is amended to read:
12-820.02. Qualified immunity
A. Unless a public employee acting within the scope of his employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for:
1. The failure to make an arrest or the failure to retain an arrested person in custody.
2. An injury caused by an escaping or escaped prisoner or a youth committed to the department of youth treatment and rehabilitation.
3. An injury resulting from the probation, parole, furlough, conditional liberty, release from confinement or discharge of a prisoner or a youth committed to the department of youth treatment and rehabilitation or from the terms and conditions of their THE PRISONER'S OR YOUTH'S probation, parole, furlough, conditional liberty or release from confinement or from the revocation of their THE PRISONER'S OR YOUTH'S probation, parole, furlough, conditional liberty or release from confinement.
4. An injury caused by a prisoner to any other prisoner or an injury caused by a youth committed to the department of youth treatment and rehabilitation to any other committed youth.
5. The issuance of or failure to revoke or suspend any permit, license, certificate, approval, order or similar authorizations for which absolute immunity is not provided pursuant to section 12-820.01.
6. The failure to discover violations of any provision of law requiring inspections of property other than property owned by the public entity in question.
7. AN INJURY TO THE DRIVER OF A MOTOR VEHICLE THAT IS ATTRIBUTABLE TO THE VIOLATION BY THE DRIVER OF SECTION 28-692 OR 28-693.
B. WHEN THE ACTS OR OMISSIONS THAT ARE ALLEGED TO CREATE LIABILITY FOR INJURY OR DAMAGE OCCUR AFTER A HIGHWAY, ROAD, STREET, RIGHT-OF-WAY OR BRIDGE HAS BEEN ACCEPTED AS COMPLETE BY A GOVERNMENTAL ENTITY AND ACTS OR OMISSIONS THAT ARE ALLEGED TO CREATE LIABILITY FOR INJURY OR DAMAGE ARISE OUT OF THE MAINTENANCE OR OPERATION OF THE HIGHWAY, ROAD, STREET, RIGHT-OF-WAY OR BRIDGE, THE GOVERNMENTAL ENTITY OR PUBLIC EMPLOYEE ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT MAY NOT BE HELD LIABLE FOR SUCH DAMAGE OR INJURY UNLESS THE DAMAGE OR INJURY WAS INTENDED OR CAUSED BY GROSS NEGLIGENCE. WHEN DAMAGE OR INJURY ARISES OUT OF THE OPERATION OR USE OF A MOTOR VEHICLE OR OTHER MOTORIZED DEVICE BY THE EMPLOYEE OF A GOVERNMENTAL ENTITY PERFORMING MAINTENANCE ON THE HIGHWAY, ROAD, STREET, RIGHT-OF-WAY OR BRIDGE EITHER BEFORE OR AFTER IT IS ACCEPTED AS COMPLETE BY THE GOVERNMENTAL ENTITY, LIABILITY MAY BE DEMONSTRATED BY PROVING ORDINARY NEGLIGENCE.
Sec. 7. Repeal
Sections 12-820.03 and 12-821, Arizona Revised Statutes, are repealed.
Sec. 8. Title 12, chapter 7, article 2, Arizona Revised Statutes, is amended by adding a new section 12-821, to read:
12-821. General limitation
ALL PERSONAL INJURY ACTIONS AGAINST ANY PUBLIC ENTITY OR PUBLIC EMPLOYEE INVOLVING ACTS THAT ARE ALLEGED TO HAVE OCCURRED WITHIN THE SCOPE OF THE PUBLIC EMPLOYEE'S EMPLOYMENT SHALL BE BROUGHT WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES AND NOT AFTERWARD.
Sec. 9. Section 12-822, Arizona Revised Statutes, is amended to read:
12-822. Change of venue
A. Service of summons in an action authorized in section 12-821 AGAINST ANY PUBLIC ENTITY OR PUBLIC EMPLOYEE INVOLVING ACTS THAT ARE ALLEGED TO HAVE OCCURRED WITHIN THE SCOPE OF THE PUBLIC EMPLOYEE'S EMPLOYMENT shall be made pursuant to Arizona rules of civil procedure, rule 4(d).
B. In an action against this state upon written demand of the attorney general, made at or before the time of answering, served upon the opposing party and filed with the court where the action is pending, the place of trial of any such action shall be changed to Maricopa county.
Sec. 10. Title 12, chapter 7, Arizona Revised Statutes, is amended by adding article 11, to read:
ARTICLE 11. ACTIONS AGAINST VOLUNTEERS
12-981. Definitions
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "GOVERNMENTAL ENTITY" MEANS A COUNTY, MUNICIPALITY, SCHOOL DISTRICT, CHARTERED UNIT OR SUBDIVISION, A GOVERNMENTAL UNIT OR OTHER SPECIAL DISTRICT OR SIMILAR ENTITY OR ANY ASSOCIATION, AUTHORITY, BOARD, COMMISSION, DIVISION, OFFICE, OFFICER, TASK FORCE OR OTHER AGENCY OF THIS STATE.
2. "HOSPITAL" MEANS A HEALTH CARE FACILITY, WHETHER ORGANIZED FOR PROFIT OR NOT, WHICH PROVIDES MEDICAL SERVICES, NURSING SERVICES, HEALTH SCREENING SERVICES, OTHER HEALTH-RELATED SERVICES OR SUPERVISORY CARE SERVICES.
3. "NONPROFIT CORPORATION" MEANS A CORPORATION THAT IS EXEMPT FROM TAXATION PURSUANT TO SECTION 501(a) OF THE INTERNAL REVENUE CODE.
4. "NONPROFIT ORGANIZATION" MEANS AN ORGANIZATION THAT IS EXEMPT FROM TAXATION PURSUANT TO SECTION 501(c) OF THE INTERNAL REVENUE CODE.
5. "VOLUNTEER" MEANS A PERSON WHO PERFORMS SERVICES FOR A NONPROFIT CORPORATION OR NONPROFIT ORGANIZATION, HOSPITAL OR GOVERNMENTAL ENTITY WITHOUT COMPENSATION OTHER THAN REIMBURSEMENT OF ACTUAL EXPENSES INCURRED. THE TERM INCLUDES A VOLUNTEER WHO SERVES AS A DIRECTOR, OFFICER, TRUSTEE OR DIRECT SERVICE VOLUNTEER.
12-982. Qualified immunity; insurance coverage
A. A VOLUNTEER IS IMMUNE FROM CIVIL LIABILITY IN ANY ACTION BASED ON AN ACT OR OMISSION OF A VOLUNTEER RESULTING IN DAMAGE OR INJURY IF:
1. THE VOLUNTEER ACTED IN GOOD FAITH AND WITHIN THE SCOPE OF THE VOLUNTEER'S OFFICIAL FUNCTIONS AND DUTIES FOR A NONPROFIT CORPORATION OR NONPROFIT ORGANIZATION, HOSPITAL OR GOVERNMENTAL ENTITY.
2. THE DAMAGE OR INJURY WAS NOT CAUSED BY WILFULL, WANTON OR GROSSLY NEGLIGENT MISCONDUCT BY THE VOLUNTEER.
B. NOTWITHSTANDING SUBSECTION A, IN ANY SUIT AGAINST A NONPROFIT CORPORATION OR NONPROFIT ORGANIZATION, HOSPITAL OR GOVERNMENTAL ENTITY FOR CIVIL DAMAGES BASED ON THE NEGLIGENT ACT OR OMISSION OF A VOLUNTEER, PROOF THAT THE ACT OR OMISSION WAS WITHIN THE SCOPE OF THE VOLUNTEER'S OFFICIAL FUNCTIONS AND DUTIES IS SUFFICIENT TO ESTABLISH THE VICARIOUS LIABILITY, IF ANY, OF THE ORGANIZATION.
C. A MOTOR VEHICLE INSURANCE POLICY, AS DEFINED IN SECTION 28-1170, WHICH PROVIDES COVERAGE TO THE OPERATOR OF A MOTOR VEHICLE IS SUBJECT TO THE FOLLOWING PROVISIONS WHICH NEED NOT BE CONTAINED IN THE POLICY. THE LIABILITY OF THE INSURANCE CARRIER WITH RESPECT TO THE INSURED AND ANY OTHER PERSON USING THE VEHICLE WITH THE EXPRESS OR IMPLIED PERMISSION OF THE INSURED SHALL EXTEND TO PROVIDE EXCESS COVERAGE FOR A NONPROFIT CORPORATION OR NONPROFIT ORGANIZATION FOR THE ACTS OF THE OPERATOR IN OPERATING A MOTOR VEHICLE AT ALL TIMES WHEN THE OPERATOR IS ACTING AS A VOLUNTEER FOR THAT NONPROFIT CORPORATION OR NONPROFIT ORGANIZATION.
Sec. 11. Section 12-2505, Arizona Revised Statutes, is amended to read:
12-2505. Comparative negligence; definition
A. The defense of contributory negligence or of assumption of risk is in all cases a question of fact and shall at all times be left to the jury. If the jury applies either defense, the claimant's action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant's fault which is a proximate cause of the injury or death, if any. IN AN ACTION FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, THE LIABILITY OF THE PERSON WHO CAUSED THE INJURY SHALL BE ALLOCATED TO EACH PERSON IN DIRECT PROPORTION TO THAT PERSON'S PERCENTAGE OF FAULT. IF THE PERCENTAGE OF FAULT THAT IS CHARGEABLE TO THE CLAIMANT IS EQUAL TO OR EXCEEDS THE AGGREGATE FAULT OF ALL OF THE DEFENDANTS AND NONPARTIES, THE CLAIMANT MAY BE BARRED BY THE FINDER OF FACT FROM RECOVERING ANY DAMAGES. IF THE PERCENTAGE OF FAULT THAT IS CHARGEABLE TO THE CLAIMANT IS LESS THAN THE AGGREGATE FAULT OF ALL OF THE DEFENDANTS AND NONPARTIES, THE CLAIMANT MAY RECOVER DAMAGES, EXCEPT THAT THE CLAIMANT'S RECOVERY OF DAMAGES WILL BE REDUCED IN PROPORTION TO THE PERCENTAGE OF FAULT THAT WAS CHARGED TO THE CLAIMANT. There is no right to comparative negligence in favor of any claimant who has intentionally, wilfully or wantonly caused or contributed to the injury or wrongful death.
B. IN ANY ACTION FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, THE PLAINTIFF MAY BE BARRED BY THE FINDER OF FACT FROM RECOVERING DAMAGES IF THE PERSON SUFFERING PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH WAS AWARE OR MUST HAVE BEEN AWARE THAT THERE WAS A RISK OF DEATH OR INJURY TO A PERSON OR HARM TO PROPERTY AND PROCEEDED VOLUNTARILY TO EXPOSE HIMSELF OR HERSELF TO SUCH RISK.
B. C. In this section, "claimant's fault" includes the fault imputed or attributed to a claimant by operation of law, if any. Sec. 12. Section 12-2506, Arizona Revised Statutes, is amended to read:
12-2506. Joint and several liability abolished; exceptions; apportionment of degrees of fault; definitions
A. In an action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section. IN AN ACTION FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, THE LIABILITY OF THE PERSON WHO CAUSED THE INJURY SHALL BE ALLOCATED TO EACH PERSON IN DIRECT PROPORTION TO THAT PERSON'S PERCENTAGE OF FAULT. IF THE PERCENTAGE OF FAULT THAT IS CHARGEABLE TO THE CLAIMANT IS EQUAL TO OR EXCEEDS THE AGGREGATE FAULT OF ALL OF THE DEFENDANTS AND NONPARTIES, THE CLAIMANT MAY BE BARRED BY THE FINDER OF FACT FROM RECOVERING ANY DAMAGES. IF THE PERCENTAGE OF FAULT THAT IS CHARGEABLE TO THE CLAIMANT IS LESS THAN THE AGGREGATE FAULT OF ALL OF THE DEFENDANTS AND NONPARTIES, THE CLAIMANT MAY RECOVER DAMAGES, EXCEPT THAT THE CLAIMANT'S RECOVERY OF DAMAGES WILL BE REDUCED IN PROPORTION TO THE PERCENTAGE OF FAULT THAT WAS CHARGED TO THE CLAIMANT. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgement shall be entered against the defendant for that amount. To determine the amount of judgement to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and that amount is the maximum recoverable against the defendant.
B. In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action.
C. The relative degree of fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall be determined and apportioned as a whole at one time by the trier of fact. If two or more claimants have independent claims, a separate determination and apportionment of the relative degrees of fault of the respective parties, and any nonparties at fault, shall be made with respect to each of the independent claims.
D. The liability of each defendant is several only and is not joint, except that:
1. A party is responsible for the fault of another person, or for payment of the proportionate share of another party, if both parties were acting in concert or if a person was acting as an agent or servant of the party.
2. Nothing in this section prohibits the imposition of joint and several liability in a cause of action relating to hazardous wastes or substances or solid waste disposal sites.
E. If a defendant is found jointly and severally liable pursuant to subsection D, the defendant has the right to contribution pursuant to this chapter.
F. As used in this section:
1. "Acting in concert" means pursuing a common plan or design to commit a tortious act and actively taking part in it.
2. "Fault" means an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express of implied warranty of a product, products liability and misuse, modification or abuse of a product.
Sec. 13. Title 12, Arizona Revised Statutes, is amended by adding chapter 17, to read:
CHAPTER 17
PERIODIC PAYMENTS
ARTICLE 1. GENERAL PROVISIONS
Sec. 14. Transfer and renumber
Title 12, chapter 5.1, article 2, Arizona Revised Statutes, is transferred for placement in title 12, Arizona Revised Statutes, as chapter 17. The transferred article is renumbered, with title 12, chapter 5.1, article 2, Arizona Revised Statutes, becoming title 12, chapter 17, article 1. The transferred sections, previously included in title 12, chapter 5.1, article 2, are renumbered for placement in title 12, chapter 17, article 1 the first number being replaced by the second number as follows: 12-581 as 12-2601, 12-582 as 12-2602, 12-583 as 12-2603, 12-584 as 12-2604, 12-585 as 12-2605, 12-586 as 12-2606, 12-587 as 12-2607, 12-588 as 12-2608, 12-589 as 12-2609, 12-590 as 12-2610, 12-591 as 12-2611, 12-592 as 12-2612, 12-593 as 12-2613 and 12-594 as 12-2614.
Sec. 15. Heading repeal
The article heading of former title 12, chapter 5.1, article 2, Arizona Revised Statutes, is repealed.
Sec. 16. Section 12-2602, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read: 12-2602. Election of periodic payments
A. This article applies to any trial involving a claim for future damages. arising out of a medical malpractice action. Any party may elect to receive or pay future damages for economic losses in periodic installments in accordance with this article.
B. The election shall be made pursuant to court rule. Any objection to the election shall be made pursuant to court rule.
C. An election filed by a party claiming or responding to a claim for future damages is effective unless an objecting party shows good cause pursuant to section 12-583 12-2603 why the trial or arbitration of a claim affecting the party should not be conducted under this article.
D. If an effective election is on file at the commencement of trial, all claims, including third party claims, counterclaims and claims consolidated for trial shall be tried under this article unless the court finds that a separate trial or other proceeding should be held on some or all of the claims that are not the subject of the election.
E. An effective election may be withdrawn only by consent of all parties to the claim to which the election relates. Sec. 17. Section 12-2605, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read: 12-2605. Evidence of future damages
A. The calculation for all future economic damages shall reflect future changes in earning power or the purchasing power of the dollar. Future damages shall not be discounted to present value, except pursuant to section 12-589 12-2609.
B. Unless the court otherwise directs or the parties otherwise agree, the annual amounts for future damages shall be prorated and paid at one month intervals during the year due. Each payment is payable on the first day of the month following its accrual.
Sec. 18. Section 12-2606, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2606. Entering a judgement for future damages
A. If special findings for future damages are made, the court shall enter judgement pursuant to the following procedures:
1. The court shall apply to the findings of past and future damages any applicable rules of law in calculating the respective amounts of past and future damages each claimant is entitled to recover and each party is obligated to pay.
2. The court shall specify payment of attorney fees and litigation expenses separately from the periodic installments payable to the claimant pursuant to any agreement entered into between the claimant and his attorney. Under a percentage attorney fee contract, unless the contract specifies otherwise, the portion of the fee applicable to the recovery of the periodic installments of future damages is computed by multiplying the fee percentage times the cost of an annuity which would satisfy the funding requirements under sections 12-587 12-2607 and 12-588 12-2608.
B. A reduction in installments of future damages made pursuant to this section for payment of attorney's fees shall reduce proportionally all periodic installments for future damages.
C. The court shall enter judgment in lump sum for past damages and for any future damages payable in lump sum or otherwise under this section. The court shall also enter judgment for the payment in periodic installments of the remaining amounts of future damages, without reduction to present value. The periodic installments shall be set forth in the judgment in a schedule that shows the annual amount due in each year the trier of fact has found that losses will accrue. If a finding has been made that costs of health care will continue for the duration of the claimant's life, the judgment shall set forth the finding and the amount of those annual losses.
Sec. 19. Section 12-2607, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2607. Funding judgments for periodic installments
A. Each party liable for all or a portion of a judgment containing periodic installments shall provide funding, separately or jointly, for the unpaid installments in a form prescribed in section 12-588 12-2608. The funding shall be provided not later than the date the judgment is subject to execution or not later than thirty days after the judgment is entered, whichever is later, unless it is superseded or the power to execute on the judgment is otherwise suspended.
B. A liability insurer having a contractual obligation or a person adjudged to have an obligation to pay all or part of a judgment entered for periodic installments is obligated to provide funding to the extent of the contractual or adjudged obligation. In determining if a judgment containing periodic installments for future damages exceeds limits under a liability insurance policy, the installments for future damages in the judgment shall be discounted to present value under section 12-589 12-2609 to compute the lump sum value. The lump sum value or the cost of an annuity which would satisfy the funding requirement for installments of future damages, whichever is less, must be added to the total of any lump sum damages contained in the judgment for each claimant. The amount so computed shall be compared to applicable limits under the policy.
C. A judgment creditor or successor in interest and any party having rights under subsection E of this section may at any time subsequent to the judgment request the court to find that funding was not provided or maintained with regard to a judgment obligation owing to the requesting party. If the court finds that such funding as required by the judgment was not provided, the court shall order that funding be provided within the time ordered by the court. If such funding as required by the judgment is not provided within the time specified by the court, the court shall compute the lump sum equivalent of the obligation under section 12-589 12-2609 and enter a judgment for that amount in favor of the requesting party.
D. If a person who is the only person liable for a portion of a judgment for periodic installments fails to provide or maintain funding, the right to a lump sum judgment under subsection C of this section applies only against that person and the portion of the judgment owed.
E. If more than one person is liable for all or a portion of periodic installments ordered by the judgment, and the required funding is provided by one or more but fewer than all of the persons liable, those providing funding may bring an action to satisfy or protect rights of reimbursement from a person not providing funding. If a person who has provided funding seeks to enforce rights for funding against a nonfunding person, the court may order the nonfunding person to indemnify those providing funding for a proportionate share of the cost of the funding provided or of the cost of an annuity as provided in section 12-588 12-2608 which would satisfy the funding requirement.
F. If funding approved by the court has been provided, the judgment debtor on whose behalf the funding is provided is discharged and any lien against the judgment debtor is released. A liability insurer providing funding that meets the requirements of section 12-588 12-2608 on behalf of a judgment debtor, to the extent it is obligated to do so under any applicable liability insurance contract, is deemed to have satisfied its duty to pay damages.
G. The court in which a trial is conducted under this article shall retain jurisdiction to enforce the provisions of this section if a judgment for periodic installments is entered.
Sec. 20. Section 12-2609, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2609. Discounting future damages to present value
A. If future damages are ordered to be paid in advance of the period to which they apply, the court shall compute the present value of the future payments by discounting each remaining annual payment by a rate of interest equal to the interest rate of the most recent issue of fifty-two week United States treasury bills sold before the date damages are discounted.
B. To compute the present value of a lifetime award of future damages pursuant to section 12-584 12-2604, subsection C, the duration of the term of payments shall be the life expectancy of the claimant at the time the computation is made prescribed by the race neutral life expectancy table for the appropriate sex in the current population survey collected by the bureau of the census for the bureau of labor statistics of the United States department of labor.
Sec. 21. Section 12-2610, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2610. Effect of death on periodic installments
A. The liability for payment of periodic installments for costs of health care not yet due at the death of the person entitled to receive the benefits terminates on the death of the person . Liability for payment of any other installments or portions of installments not yet due at the death of the person entitled to receive them terminates , except as provided in subsections B and C.
B. If, in an action for wrongful death, a judgment for periodic installments provides payments to more than one person and one or more but fewer than all of them die, the surviving beneficiaries are entitled to shares proportionate to their shares in the periodic installments not yet paid to the deceased beneficiary or beneficiaries. The surviving beneficiaries are not entitled to receive payments beyond the periods specified for such beneficiaries in the judgment.
C. If, in an action other than for wrongful death, a judgment for periodic installments is entered and a person entitled to receive benefits for economic losses other than for costs of health care under the judgement dies, any periodic installments not yet due at the person's death shall be paid to a beneficiary designated in writing by the deceased or, in the absence of such a designation, to the estate of the deceased.
Sec. 22. Section 12-2612, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2612. Exemption of benefits
Periodic installments for future damages for loss of earnings or loss of support for beneficiaries of a judgment entered in a wrongful death action are exempt from garnishment, attachment, execution and any other process or claim to the extent wages or earnings are exempt under any applicable law. Periodic installments for all other future damages are exempt under garnishment, attachment, execution and any other process or claim except to the extent they may be assigned pursuant to section 12-591 12-2611.
Sec. 23. Section 12-2613, Arizona Revised Statutes, as transferred and renumbered by this act, is amended to read:
12-2613. Duties of the director of the department of insurance and insurance companies
A. The director of the department of insurance shall adopt rules:
1. For determining which insurers and assignees are financially qualified to provide and maintain the funding required under this article and to be designated as qualified insurers.
2. To require insurers to provide and maintain funding under section 12-587 12-2607 if required by court order.
3. For publishing and revising a list of persons who have been designated by the director as qualified insurers.
B. The director shall annually review and evaluate the effectiveness of the system of periodic payments. If, pursuant to such review and evaluation, the director determines that the system of periodic payments is effectively reducing the cost of medical malpractice tort claims for bodily injury, the director shall order appropriate actuarially justified rate adjustments based on such findings.
C. In order to qualify under this section, an insurance company shall:
1. Have at least an "A+" (superior) rating and a financial size category of VIII in the current edition of best insurance reports as published by A.M. Best company.
2. Have no more than one ratio falling outside the usual range according to the current ratio published by the national association of insurance commissioners insurance regulatory information system.
3. Be licensed to do business in a state that has an applicable insurance guaranty fund of at least one hundred thousand dollars.
4. Meet any other standards that the director deems necessary to assure that funding will be provided and maintained. A qualified insurer may be a subsidiary of a parent insurance company if the parent insurance company qualifies as a qualified insurer and guarantees the obligation of the subsidiary.
Sec. 24. Heading change
The chapter heading of title 33, chapter 12, Arizona Revised Statutes, is changed from "LIABILITIES AND DUTIES ON PROPERTY USED FOR RECREATION" to "LIABILITIES AND DUTIES ON PROPERTY USED FOR EDUCATION AND RECREATION."
Sec. 25. Section 33-1551, Arizona Revised Statutes, is amended to read:
33-1551. Duty of owner, lessee or occupant of premises to recreational users; liability; definitions
A. An A PUBLIC OR PRIVATE owner, EASEMENT HOLDER, lessee or occupant of A premises does IS not :
1. Owe any duty to a recreational user to keep the premises safe for such use.
2. Extend any assurance to a recreational user through the act of giving permission to enter the premises that the premises are safe for such entry or use.
3. Incur liability for any injury to persons or property caused by any act of a recreational user. LIABLE TO A RECREATIONAL OR EDUCATIONAL USER EXCEPT UPON A SHOWING THAT THE OWNER, EASEMENT HOLDER, LESSEE OR OCCUPANT WAS GUILTY OF WILLFUL, MALICIOUS OR GROSSLY NEGLIGENT CONDUCT WHICH WAS A DIRECT CAUSE OF THE INJURY TO THE RECREATIONAL OR EDUCATIONAL USER.
B. As used in this section:
1. "EDUCATIONAL USER" MEANS A PERSON TO WHOM PERMISSION HAS BEEN GRANTED OR IMPLIED WITHOUT THE PAYMENT OF AN ADMISSION FEE OR OTHER CONSIDERATION TO ENTER UPON PREMISES TO PARTICIPATE IN AN EDUCATIONAL PROGRAM, INCLUDING BUT NOT LIMITED TO, THE VIEWING OF HISTORICAL, NATURAL, ARCHAEOLOGICAL OR SCIENTIFIC SIGHTS.
1. 2. "Premises" means agricultural, range, OPEN SPACE, PARK, FLOOD CONTROL, mining, or forest OR RAILROAD lands, and any other similar lands, WHEREVER LOCATED, which by agreement are made available to a recreational OR EDUCATIONAL user, INCLUDING, BUT NOT LIMITED TO, PAVED OR UNPAVED MULTI-USE TRAILS AND SPECIAL PURPOSE ROADS OR TRAILS NOT OPEN TO AUTOMOTIVE USE BY THE PUBLIC and any building IMPROVEMENT, FIXTURE, WATER CONVEYANCE SYSTEM, BODY OF WATER, CHANNEL, CANAL OR LATERAL, ROAD, TRAIL or structure on such lands.
2. 3."Recreational user" means a person to whom permission has been granted or implied without the payment of an admission fee or other consideration to TRAVEL ACROSS OR TO enter upon premises to hunt, fish, trap, camp, hike, ride, EXERCISE, swim or engage in similar recreational pursuits. The purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or other consideration as provided in this section.
C. This section does not limit the liability which otherwise exists for maintaining an attractive nuisance, EXCEPT WITH RESPECT TO DAMS, CHANNELS, CANALS AND LATERAL DITCHES USED FOR FLOOD CONTROL, AGRICULTURAL, INDUSTRIAL, METALLURGICAL OR MUNICIPAL PURPOSES. or for wilful or malicious failure to guard or warn against a dangerous condition, use or activity.
Sec. 26. Section 48-818, Arizona Revised Statutes, is amended to read:
48-818. Emergency medical aid or assistance to other public bodies; limitation on liability
A. A district, or an employee of a district, organized pursuant to this chapter, or a private fire or ambulance company whose services are procured by a fire district or its officers and employees OR A PROPERTY OWNER, ITS OFFICERS OR EMPLOYEES OR A TENANT, when rendering emergency medical aid provided by an emergency medical technician, an intermediate emergency medical technician or a paramedic who is certified by the director of the department of health services pursuant to section 36-2205, is not liable for civil or other damages to the recipient of the emergency medical aid as the result of any act or omission in rendering such aid or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the sick or injured person. This subsection does not apply if the person providing emergency medical aid is guilty of gross negligence or intentional misconduct. The immunity provided for in this subsection does not extend to an emergency medical technician, an intermediate emergency medical technician or a paramedic while operating a motor vehicle.
B. A district, or an employee of a district, organized pursuant to this chapter, if requested by a public body to assist at a traffic accident on a public right-of-way or to render emergency aid at an emergency occurrence outside the boundaries of such district is not liable for any civil or other damages as a result of any act or omission by the district or an employee of the district at the traffic accident, while rendering emergency care or as the result of any act or a failure to act to provide or arrange for further medical treatment or care for an injured person. This subsection does not apply if the district or an employee of the district, while providing assistance or rendering such emergency care or acting or failing to act to provide such further medical treatment or care, is guilty of gross negligence.
C. The provisions of this section shall not abrogate the right of an employee who is injured while performing services as provided in subsection A OF THIS SECTION to recover benefits to which he may be eligible under title 23, chapter 6 from the district.
D. Nothing in this section limits a plaintiff's right to recover civil damages from any applicable uninsured motorist coverage or underinsured motorist coverage.
Sec. 27. Insurer rate savings; filing
A. Each insurer authorized to transact insurance business in this state shall file with the department of insurance in a form prescribed by the director of the department the following information:
1. On or before March 31, 1994, each rate filing in effect during the three calendar years immediately preceding the effective date of the section the amount, stated both as a per cent of premiums and as a total dollar amount, of litigation and litigation related expenses and the amount of ultimate loss payments that are forecast in the rate filing for the period for which rates were calculated.
2. On or before March 31, 1994, 1995 and 1996, the amount, stated both as per cent of premiums and as a total dollar amount, of litigation and litigation related expenses and the amount of ultimate loss payments that are forecast in each rate filing in effect during the three calendar years immediately following the effective date of this section, beginning with calendar year 1993.
3. On or before March 31, 1994, 1995 and 1996, the amount of savings, stated both as a per cent of premiums and as a dollar amount, that is attributable to the provisions of this act and that the insurer has incorporated into each rate in effect after the effective date of this section during the period for which the rates were calculated.
B. On or before December 31, 1996, the department of insurance shall submit a summary analysis of the data received by the department pursuant to this section to the governor, the president of the senate and the speaker of the house of representatives.
Sec. 28. Applicability
A. The provisions of sections 1, 3, 6, 10, 25 and 26 of this act apply to all actions filed on or after the effective date of this act.
B. Subject to section 12-505, Arizona Revised Statutes, sections 2 and 8 of this act apply to all causes of action which were preexisting on the effective date of this act and to all causes of action which accrue after the effective date of this act.
C. The legislature intends that sections 4, 5, 9, 11, 12, 16, 17, 18, 19, 20, 21, 22 and 23 of this act to be procedural and these sections shall apply retroactively to all actions pending on the effective date of this act. To the extent a court may determine that any provision in these sections affects a substantive right of one of the parties, that section shall apply retroactively to an action existing on the effective date of this act only to the extent that the provisions are determined by the court to be procedural.
Sec. 29. Severability
If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. [1]

Note: Deleted language is crossed out, added language is capitalized.

Support

Supporters included:[1]

  • Arizona Chamber of Commerce

Arguments in favor of the amendment included:[1]

  • Proposition 301 would cut down on lawsuits, allowing legitimate claims to be handled in a timely manner.
  • The proposition would provide immunity to community volunteers from lawsuits.

Opposition

Those in opposition included:[1]

  • Women Empowered, Inc.

Arguments in opposition of the amendment included:[1]

  • The proposition would create obstacles for those seeking to file lawsuits by blocking access to the court system.

See also

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Suggest a link

External links

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 1.6 State of Arizona 1994 ballot propositions guide
  2. Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.