Tort Liability

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.

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

                   A  BILL  FOR  AN  ACT



 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-

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 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

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 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.  This Act does not affect rights and duties that
19 matured, penalties that were incurred, and proceedings that were
20 begun, before its effective date.
21      SECTION 4.  Statutory material to be repealed is bracketed.
22 New statutory material is underscored.
23      SECTION 5.  This Act shall take effect upon its approval.