Report Title:

Joint Tortfeasors

Description:

Clarifies that joint tortfeasors and co-obligors may be parties to tort suits. Clarifies that good faith petition hearing notices must be sent to joint tortfeasors or co-obligors known or that should have been know to the petitioning party. Allows service of the notice and petition as per the Hawaii Rules of Civil Procedure. Replaces comparative negligence claims with written indemnity agreements or statutorily created indemnification rights as claims not barred by good faith settlements. Clarifies the appeal process, extends the court allowed filing deadline to thirty days, and allows a court to shorten the filing deadline. Provides that settling entities may still be liable to non-settling parties.

THE SENATE

S.B. NO.

642

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to civil actions.

 

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

SECTION 1. Section 663-15.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§663-15.5[]] Release; joint tortfeasors; co-obligors; good faith settlement. (a) A release, dismissal with or without prejudice, or a covenant not to sue or not to enforce a judgment that is given in good faith under subsection (b) to one or more joint tortfeasors, or to one or more co-obligors who are mutually subject to contribution rights, shall:

(1) Not discharge any other [party] joint tortfeasor or co-obligor not released from liability unless its terms so provide;

(2) Reduce the claims against the [other party] joint tortfeasor or co-obligor not released in the amount stipulated by the release, dismissal, or covenant, or in the amount of the consideration paid for it, whichever is greater; and

(3) Discharge the party to whom it is given from all liability for any contribution to any other [party.] joint tortfeasor or co-obligor.

This subsection shall not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.

(b) For purposes of subsection (a), a party shall petition the court for a hearing on the issue of good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, serving notice to all other [known] joint tortfeasors or co-obligors[.] known or that should have been known to the petitioning party. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue before the commencement of the trial of the action, or before the verdict or judgment if settlement is made after the trial has commenced.

The petition shall indicate the settling parties and except for a settlement that includes a confidential agreement regarding the case or the terms of the settlement the basis, terms, and settlement amount.

[Except for a settlement that includes a confidentiality agreement regarding the case or the terms of the settlement, the] The notice, petition, and proposed order shall be served as provided by the Hawaii Rules of Civil Procedure or by certified mail, return receipt requested. Proof of service shall be filed with the court. Within twenty-five days of the mailing of the notice, petition, and proposed order, a nonsettling [party] alleged joint tortfeasor or co-obligor may file an objection to contest the good faith of the settlement. If none of the nonsettling [parties] alleged joint tortfeasors or co-obligors files an objection within the twenty-five days, the court may approve the settlement without a hearing. An objection by a nonsettling [party] alleged joint tortfeasor or co-obligor shall be served upon all [other] parties. The [party] alleged joint tortfeasor or co-obligor asserting a lack of good faith shall have the burden of proof on that issue.

Where a confidentiality agreement has been entered into regarding the claim or settlement terms, the court shall hear the matter in a manner consistent with preventing public disclosure of the agreement while providing other joint tortfeasors and co-obligors sufficient information to object to a proposed settlement.

(c) The court may determine the issue of good faith for purposes of subsection (a) on the basis of affidavits or declarations served with the petition under subsection (a), and any affidavits or declarations filed in response. In the alternative, the court, in its discretion, may receive other evidence at a hearing.

(d) A determination by the court that a settlement was made in good faith shall [bar]:

(1) Bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor [for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.] except those based on a written indemnity agreement or statutorily created indemnification right; and

(2) Result in a dismissal of all cross-claims filed against the settling joint tortfeasor or co-obligor.

(e) [A] An alleged joint tortfeasor or co-obligor or settling party aggrieved by a court determination on the issue of good faith may appeal the determination[.] by filing an application for a writ of mandamus pursuant to the Hawaii Rules of Appellate Procedure. The [appeal] writ of mandamus shall be filed within twenty days after service of written notice of the determination, or within any additional time not exceeding [twenty] thirty days as the court may allow. Upon a showing of good cause, the court may shorten the time for filing an appeal.

(f) The running of any statute of limitations or other time limitations shall be tolled during the period of consideration by the court on the issue of good faith.

(g) The procedures, rights, and obligations of this section shall apply to a release, dismissal, or covenant given before, as well as after, a lawsuit has been filed and does not require the existence of a lawsuit.

(h) Where a release has been given pursuant to the terms of this chapter, non-settling parties shall have the right to require that a court include the settling entity upon any verdict or judgment form, and a court or jury shall consider and make a finding as to any liability, responsibility, or apportionment of fault of the settling entity, and the non-settling parties shall be allowed to present evidence at trial as to the liability, responsibility, or apportionment of fault of the settling entity. Nothing in this subsection shall preclude a non-settling party from obtaining judgment pursuant to the Hawaii Rules of Civil Procedure as a matter of law prior to or during trial.

[(h)](i) This section shall not apply to a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment given to a co-obligor on an alleged contract debt where the contract was made prior to January 1, 2002."

SECTION 2. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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