21-3A-1      Definition of terms.
21-3A-1.1      Purposes of chapter.
21-3A-1.2      Applicability of chapter.
21-3A-2      Action for bodily injury--Effective election--Objection to election--Time requirements--Action not tried under chapter--Withdrawal of election.
21-3A-3      Calculation of damages by trier of fact.
21-3A-4      Evidence and calculation of future damages--Jury instructions concerning future damages.
21-3A-5      Judgment entered on verdict requiring special damages.
21-3A-6      Judgment for periodic installments--Adjustment--Index factor--Schedule of payments.
21-3A-7      Security authorized for payment of judgment for periodic installments.
21-3A-8      Posting of security by judgment debtor or insurer--Failure to comply--Right to lump-sum payment--Wrongful death action--Right of reimbursement.
21-3A-9      Discount factor.
21-3A-10      Survivorship of liability for installment payments--Wrongful death action--Qualifying survivor defined.
21-3A-11      Satisfaction of judgment and discharge of debtor.
21-3A-12      Rules established by director of Division of Insurance.
21-3A-13      Provisions of chapter severable.

21-3A-1. Definition of terms.

Terms used in this chapter, mean:

(1)    "Bodily injury," any bodily harm, sickness, disease, or death;

(2)    "Economic loss," any pecuniary harm for which damages are recoverable;

(3)    "Future damages," any damages arising from bodily injury which the trier of fact finds will accrue after the damages findings are made;

(4)    "Noneconomic loss," any nonpecuniary harm for which damages are recoverable, but the term does not include punitive or exemplary damages;

(5)    "Past damages," any damages that have accrued when the damages findings are made, including any punitive or exemplary damages allowed by law; and

(6)    "Qualified insurer," any insurer, self-insurer, plan, or arrangement approved pursuant to § 21-3A-12.

Source: SL 1986, ch 163, § 1.

21-3A-1.1. Purposes of chapter.

The purposes of this chapter are to fully and fairly compensate injured parties as well as to:

(1)    Alleviate some of the practical problems incident to unpredictability of large future losses;

(2)    Effectuate more precise awards of damages for actual losses;

(3)    Pay damages as the trier of fact finds the losses will accrue; and

(4)    Assure that payments of damages more nearly serve the purposes for which they are awarded.

Source: SL 1986, ch 163, § 15, as added by SL 1988, ch 181, § 1.

21-3A-1.2. Applicability of chapter.

The provisions of this chapter apply only to any action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake or failure to cure, whether based upon contract or tort, and to the professional corporation or corporations of any such practitioner of the healing arts.

Source: SL 1986, ch 163, § 16, as added by SL 1988, ch 181, § 6.

21-3A-2. Action for bodily injury--Effective election--Objection to election--Time requirements--Action not tried under chapter--Withdrawal of election.

In order to invoke this chapter, a party to an action for bodily injury shall make an effective election in accordance with this section within one hundred twenty days after service of the complaint.

The election shall be made in accordance with rules of court. Any objection to the election shall be made in accordance with rules of court within thirty days after the election has been made.

An election is effective if:

(1)    All parties have consented;

(2)    No timely objection is filed by any party; or

(3)    A timely objection is filed; but

(a)    The electing party is a claimant and shows there is a good faith claim that future damages will exceed two hundred thousand dollars; or

(b)    The electing party is a party responding to a claim for future damages in excess of two hundred thousand dollars and shows that security in the amount of the claim for past and future damages or five hundred thousand dollars, whichever is less, can be provided under this chapter.

If an objecting party shows that the purposes of this chapter would not be served by conducting the trial of the claim affecting him under this chapter, the court may determine not to try the claim under this chapter even though the conditions of subsection (a) or (b) of subdivision (3) of this section are satisfied. Such determination shall be made in accordance with rules of court.

If an effective election is on file at the commencement of trial, all actions, including third-party claims, counterclaims and actions consolidated for trial, shall be tried under this chapter unless the court finds that the purposes of this chapter would not be served by doing so or in the interest of justice a separate trial or proceeding should be held on some or all of the claims that are not the subject of the election.

An effective election can be withdrawn only by consent of all parties to the claim to which the election relates.

Source: SL 1986, ch 163, § 2; SL 1988, ch 181, § 2.

21-3A-3. Calculation of damages by trier of fact.

If liability is found in a trial under this chapter, the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:

(1)    Any past damages; and

(2)    Any future damages and the periods over which they will accrue, on an annual basis, for each of the following types:

(a)    Medical and other costs of health care;

(b)    Other economic loss; and

(c)    Noneconomic loss.

The calculation of future damages for types (a) and (c) described in subdivision (2) of this section shall be based on the costs and losses during the period of time the claimant will sustain those costs and losses and the calculation for type (b) shall be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based.

Source: SL 1986, ch 163, § 3.

21-3A-4. Evidence and calculation of future damages--Jury instructions concerning future damages.

In all trials under this chapter, evidence of future damages shall be expressed in current values and those damages shall be calculated by the trier of fact without regard to future changes in the earning power or purchasing power of the dollar.

In all jury trials in which special damages findings are required under this chapter, the jury shall be informed that with respect to future damages:

(1)    The law provides for adjustments to be made later to take account of future changes in the purchasing power of the dollar;

(2)    The law takes into account the fact that those payments may be made in the future rather than in one lump sum now; and

(3)    The jury will make their findings on the assumption that appropriate adjustments for future changes in the purchasing power of the dollar will be made later.

Source: SL 1986, ch 163, § 4.

21-3A-5. Judgment entered on verdict requiring special damages.

In order to determine what judgment is to be entered on a verdict requiring findings of special damages under this chapter, the court shall proceed as follows:

(1)    The court shall apply to the findings of past and future damages whether determined by the court or jury, any applicable rules of law, including setoffs, credits, comparative fault, additurs and remittiturs, in calculating the respective amounts of past and future damages each claimant is entitled to recover and each party is obligated to pay.

(2)    If the total amount of future damages recoverable by a claimant in an action for bodily injury or by all of the beneficiaries in an action for wrongful death is less than two hundred thousand dollars, the court, unless the claimant or beneficiaries elect to receive a judgment of periodic installments, shall reduce the amounts payable for future damages in accordance with § 21-3A-9, to determine the equivalent lump-sum value and enter judgment for that amount plus the amounts found for past damages.

(3)    If the total amount of future damages recoverable by a claimant in an action for bodily injury or by all of the beneficiaries in an action for wrongful death is two hundred thousand dollars, or more, or the claimant or beneficiaries so elect, the court shall enter judgment as follows:

(a)    If a judgment for periodic installments is entered, it shall specify payment of attorney's fees and litigation expenses in a manner separate from the periodic installments payable to the claimant, either in lump sum or by periodic installments, pursuant to any agreement entered into between the claimant or beneficiary and his attorney. If any portion of future damages is payable in advance of the period to which it applies in satisfaction of the agreement, the amount of the damages is subject to discount in accordance with § 21-3A-9.

(b)    Upon election of a subrogee, including an employer or insurer who provides workers' compensation, filed within the time permitted by rule of court, any part of future damages allocable to reimbursement of payments previously made by the subrogee is payable in lump sum to the subrogee and the appropriate reduction of future damages shall be calculated in accordance with § 21-3A-9.

(c)    The court shall enter judgment in lump sum for past damages and for any damages payable in lump sum or otherwise under subsections (3)(a) and (3)(b). Any lump-sum payments for future damages reduce proportionately all periodic installments for future damages.

(d)    After making any adjustments prescribed by the preceding subsections, the court shall reduce the remaining amounts for future damages to present value in accordance with § 21-3A-9 to determine the equivalent lump-sum value. If the equivalent lump-sum value is more than one hundred thousand dollars or the claimant or beneficiaries elect to receive a judgment for periodic installments, the court shall enter a judgment for the payment of the remaining amounts of future damages, without reduction in periodic installments in accordance with § 21-3A-1.2, otherwise, the court shall enter a judgment for the equivalent lump-sum value.

(e)    In an action for wrongful death, the calculation of the equivalent lump-sum value under subsection (3)(d) of the remaining amounts for future damages shall be based on the total recovery for all beneficiaries of the action. If the lump-sum equivalent of the total is more than fifty thousand dollars, each beneficiary shall be paid in periodic installments in accordance with § 21-3A-1.2.

(4)    Upon petition of a party before entry of judgment and a finding of incapacity to post the required security, the court, at the election of the claimant or beneficiaries in an action for wrongful death, shall:

(a)    Enter a judgment in accordance with subdivision (3); or

(b)    Reduce the amounts payable for future damages in accordance with § 21-3A-9, unless subdivision 21-3A-8(1) applies, to determine the equivalent lump-sum value and enter judgment for that amount plus the amounts found for past damages.

Source: SL 1986, ch 163, § 5; SL 1988, ch 181, § 3.

21-3A-6. Judgment for periodic installments--Adjustment--Index factor--Schedule of payments.

A judgment for periodic installments shall set out:

(1)    The findings of the future damages for each calendar year; and

(2)    A schedule of the base figure for each calendar year to be used in calculating future payments. The base figure is determined by discounting the findings for each calendar year in accordance with § 21-3A-9.

As of the first day of each calendar year after a judgment for periodic installments is entered, the schedule of all installments not previously due shall be adjusted by adding to the base figure for each installment, in the most recently modified schedule, a sum determined by multiplying the base figure by the index factor defined in this section.

If a judgment for periodic installments has been in effect for:

(1)    One year or more at the time of adjustment, the index factor is the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the Bureau of Labor Statistics of the United States Department of Labor for the year before the year immediately preceding the year of adjustment;

(2)    Less than one year but more than six months at the time of adjustment, the index factor is one-half of the index factor defined in this section; and

(3)    Less than six months but more than three months at the time of adjustment, the index factor is one-fourth of the index factor defined in this section.

In all other cases, no adjustment may be made.

Unless the court directs otherwise or the parties otherwise agree, payments shall be scheduled at one-month intervals. Payments for damages accruing during the scheduled intervals are due at the beginning of the intervals.

Source: SL 1986, ch 163, § 6; SL 1988, ch 181, § 4.

21-3A-7. Security authorized for payment of judgment for periodic installments.

Security authorized or required for payment of a judgment for periodic installments entered in accordance with this chapter shall be in one or more of the following forms and approved by the court:

(1)    Bond executed by a qualified insurer;

(2)    Annuity contract executed by a qualified insurer;

(3)    Evidence of applicable and collectible liability insurance with one or more qualified insurers;

(4)    An agreement by one or more qualified insurers to guarantee payment of the judgment; or

(5)    Any other satisfactory form of security.

Security complying with this section serves also as a required supersedeas bond.

Source: SL 1986, ch 163, § 7.

21-3A-8. Posting of security by judgment debtor or insurer--Failure to comply--Right to lump-sum payment--Wrongful death action--Right of reimbursement.

If the court enters a judgment for periodic installments, each party liable for all or a portion of the judgment, unless found to be incapable of doing so under subdivision 21-3A-5(4), shall separately or jointly with one or more others post security in an amount equal to the present lump-sum equivalent of the unpaid judgment, including past damages, in a form prescribed in § 21-3A-7, within thirty days after the date the judgment is subject to execution. A liability insurer having a contractual obligation and any other person adjudged to have an obligation to pay all or part of a judgment for periodic installments on behalf of a judgment debtor is obligated to post security to the extent of its contractual or adjudged obligation if the judgment debtor has not done so.

A judgment creditor or successor in interest and any party having rights under this section may move that the court find that security has not been posted and maintained with regard to a judgment obligation owing to the moving party. Upon so finding, the court shall calculate the lump-sum equivalent of the obligation under § 21-3A-9 and enter a judgment for that amount in favor of the moving party.

Upon motion by the claimant, or the beneficiaries in an action for wrongful death, the court, in the absence of a showing of good cause, shall enter a lump-sum judgment without applying the discount factor in § 21-3A-9 if:

(1)    A responding party elects to have this chapter apply and makes the required showing as to security under § 21-3A-2, but thereafter fails to post security; or

(2)    A party fails to maintain security.

If a judgment debtor who is the only person liable for a portion of a judgment for periodic installments fails to post and maintain security, the right to lump-sum payment described in this section applies only against that judgment debtor and the portion of the judgment so owed.

If more than one party is liable for all or a portion of a judgment requiring security under this chapter and the required security is posted by one or more but fewer than all of the parties liable, the security requirements are satisfied and those posting security may proceed under this section to enforce rights for security or lump-sum payment to satisfy or protect rights of reimbursement from a party not posting security.

Source: SL 1986, ch 163, § 8; SL 1988, ch 181, § 5.

21-3A-9. Discount factor.

If future damages are determined in accordance with § 21-3A-4 but are ordered to be paid in advance of the period to which they apply, or base figures are required under § 21-3A-6, the court shall apply a discount factor of three percent, compounded annually.

Source: SL 1986, ch 163, § 9.

21-3A-10. Survivorship of liability for installment payments--Wrongful death action--Qualifying survivor defined.

In all cases covered by this chapter in which future damages are payable in periodic installments, the liability for payment of any installments for medical or other costs of health care or noneconomic loss not yet due at the death of a person entitled to receive these benefits terminates upon the death of that person. The liability for payment of any other installments or portions thereof not yet due at the death of the person entitled to receive them likewise terminates except as provided herein.

If, in an action for wrongful death, a judgment for periodic installments provides payments to more than one person entitled to receive benefits for losses that do not terminate under this section and one or more but fewer than all of them die, the surviving beneficiaries succeed to the shares of the deceased beneficiaries. The surviving beneficiaries are entitled to shares proportionate to their shares in the periodic installments not yet paid, but they are not entitled to receive payments beyond the respective periods specified for them in the judgment.

If, in an action other than one for wrongful death, a judgment for periodic installments is entered and a person entitled to receive benefits for losses that do not terminate under this section under the judgment dies and is survived by one or more qualifying survivors, any periodic installments not yet due at the death shall be shared equitably by those survivors. Amounts due each survivor may not exceed the survivor's economic loss resulting from the death.

Qualifying survivor means a person who, had the death been caused under circumstances giving rise to a cause of action for wrongful death, would have qualified as a beneficiary at the time of the death according to the law that would be applied in an action for wrongful death by the jurisdiction under which the issue of liability was resolved in entering the judgment for periodic installments.

Source: SL 1986, ch 163, § 10.

21-3A-11. Satisfaction of judgment and discharge of debtor.

If security is posted in accordance with § 21-3A-8 and approved under a final judgment entered under this chapter, the judgment is satisfied and the judgment debtor on whose behalf the security is posted is discharged.

Source: SL 1986, ch 163, § 11.

21-3A-12. Rules established by director of Division of Insurance.

The director of the Division of Insurance shall establish rules:

(1)    For determining which insurers, self-insurers, plans, or arrangements are financially qualified to provide the security required under this Act and to be designated as qualified insurers;

(2)    To require insurers to post security under § 21-3A-8 if found by the court to be obligated and capable of posting security; and

(3)    For publishing prior to January first of each year the rate of discount per annum set out in § 21-3A-6.

Source: SL 1986, ch 163, § 12.

21-3A-13. Provisions of chapter severable.

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

Source: SL 1986, ch 163, § 13.