Bill Text: NY A07504 | 2009-2010 | General Assembly | Amended
Bill Title: Provides for the equal treatment of public and private defendants when considering the impact of collateral source payments in tort claims for personal injury, property damage or wrongful death; protects parties to the settlement of tort claims from certain unwarranted liens, reimbursements and subrogation claims.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-01-21 - enacting clause stricken [A07504 Detail]
Download: New_York-2009-A07504-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7504--B Cal. No. 631 2009-2010 Regular Sessions I N A S S E M B L Y April 13, 2009 ___________ Introduced by M. of A. WEINSTEIN, RAIA -- Multi-Sponsored by -- M. of A. GORDON -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported from committee, advanced to a third reading, amended and ordered reprinted, retaining its place on the order of third reading AN ACT to amend the civil practice law and rules, in relation to treat- ing public and private defendants equally when considering the impact of collateral source payments in tort claims for personal injury, property damage or wrongful death; to amend the general obligations law, in relation to protecting parties to the settlement of a tort claim from certain unwarranted lien, reimbursement and subrogation claims; and to repeal certain provisions of the civil practice law and rules relating to collateral source payments THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Subdivisions (a) and (b) of section 4545 of the civil prac- 2 tice law and rules are REPEALED. 3 S 2. Subdivision (c) of section 4545 of the civil practice law and 4 rules, as added by chapter 220 of the laws of 1986, is amended to read 5 as follows: 6 [(c)] (A) Actions for personal injury, injury to property or wrongful 7 death. In any action brought to recover damages for personal injury, 8 injury to property or wrongful death, where the plaintiff seeks to 9 recover for the cost of medical care, dental care, custodial care or 10 rehabilitation services, loss of earnings or other economic loss, 11 evidence shall be admissible for consideration by the court to establish 12 that any such past or future cost or expense was or will, with reason- 13 able certainty, be replaced or indemnified, in whole or in part, from 14 any collateral source [such as insurance (], except for life insur- 15 ance[), social security (except those benefits provided under title EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01597-10-9 A. 7504--B 2 1 XVIII of the social security act), workers' compensation or employee 2 benefit programs (except such collateral sources entitled by law to 3 liens against any recovery of the plaintiff)] AND THOSE PAYMENTS AS TO 4 WHICH THERE IS A STATUTORY RIGHT OF REIMBURSEMENT. If the court finds 5 that any such cost or expense was or will, with reasonable certainty, be 6 replaced or indemnified from any SUCH collateral source, it shall reduce 7 the amount of the award by such finding, minus an amount equal to the 8 premiums paid by the plaintiff for such benefits for the two-year period 9 immediately preceding the accrual of such action and minus an amount 10 equal to the projected future cost to the plaintiff of maintaining such 11 benefits. In order to find that any future cost or expense will, with 12 reasonable certainty, be replaced or indemnified by the collateral 13 source, the court must find that the plaintiff is legally entitled to 14 the continued receipt of such collateral source, pursuant to a contract 15 or otherwise enforceable agreement, subject only to the continued 16 payment of a premium and such other financial obligations as may be 17 required by such agreement. ANY COLLATERAL SOURCE DEDUCTION REQUIRED BY 18 THIS SUBDIVISION SHALL BE MADE BY THE TRIAL COURT AFTER THE RENDERING OF 19 THE JURY'S VERDICT. THE PLAINTIFF MAY PROVE HIS OR HER LOSSES AND 20 EXPENSES AT THE TRIAL IRRESPECTIVE OF WHETHER SUCH SUMS WILL LATER HAVE 21 TO BE DEDUCTED FROM THE PLAINTIFF'S RECOVERY. 22 S 3. Subdivision (d) of section 4545 of the civil practice law and 23 rules is relettered subdivision (b). 24 S 4. Subdivision (e) of rule 4111 of the civil practice law and rules 25 is REPEALED. 26 S 5. Subdivision (f) of rule 4111 of the civil practice law and rules, 27 as amended by chapter 100 of the laws of 1994, is relettered subdivision 28 (e) and amended to read as follows: 29 (e) Itemized verdict in certain actions. In an action brought to 30 recover damages for personal injury, injury to property or wrongful 31 death, which is not subject to [subdivisions] SUBDIVISION (d) [and (e)] 32 of this rule, the court shall instruct the jury that if the jury finds a 33 verdict awarding damages, it shall in its verdict specify the applicable 34 elements of special and general damages upon which the award is based 35 and the amount assigned to each element including, but not limited to, 36 medical expenses, dental expenses, loss of earnings, impairment of earn- 37 ing ability, and pain and suffering. Each element shall be further item- 38 ized into amounts intended to compensate for damages that have been 39 incurred prior to the verdict and amounts intended to compensate for 40 damages to be incurred in the future. In itemizing amounts intended to 41 compensate for future damages, the jury shall set forth the period of 42 years over which such amounts are intended to provide compensation. In 43 actions in which article fifty-A or fifty-B of this chapter applies, in 44 computing said damages, the jury shall be instructed to award the full 45 amount of future damages, as calculated, without reduction to present 46 value. 47 S 6. Subdivision (b) of section 4213 of the civil practice law and 48 rules, as separately amended by chapters 485 and 682 of the laws of 49 1986, is amended to read as follows: 50 (b) Form of decision. The decision of the court may be oral or in 51 writing and shall state the facts it deems essential. In [a medical, 52 dental or podiatric malpractice action or in an action against a public 53 employer or a public employee who is subject to indemnification by a 54 public employer with respect to such action or both, as such terms are 55 defined in subdivision (b) of section forty-five hundred forty-five, for 56 personal injury or wrongful death arising out of an injury sustained by A. 7504--B 3 1 a public employee while acting within the scope of his public employment 2 or duties, and in] any [other] action brought to recover damages for 3 personal injury, injury to property, or wrongful death, a decision 4 awarding damages shall specify the applicable elements of special and 5 general damages upon which the award is based and the amount assigned to 6 each element, including but not limited to medical expenses, dental 7 expenses, podiatric expenses, loss of earnings, impairment of earning 8 ability, and pain and suffering. In a medical, dental or podiatric malp- 9 ractice action, [and in any other action brought to recover damages for 10 personal injury, injury to property, or wrongful death, each element 11 shall be further itemized into amounts intended to compensate for 12 damages which have been incurred prior to the decision and amounts 13 intended to compensate for damages to be incurred in the future. In 14 itemizing amounts intended to compensate for future damages, the court 15 shall set forth the period of years over which such amounts are intended 16 to provide compensation. In computing said damages, the court shall 17 award the full amount of future damages, as calculated, without 18 reduction to present value] COMMENCED ON OR AFTER JULY TWENTY-SIXTH, TWO 19 THOUSAND THREE, THE COURT'S DECISION AS TO FUTURE DAMAGES SHALL BE ITEM- 20 IZED IN ACCORDANCE WITH SUBDIVISION (D) OF RULE FORTY-ONE HUNDRED ELEVEN 21 OF THIS CHAPTER. IN ANY ACTION BROUGHT TO RECOVER DAMAGES FOR PERSONAL 22 INJURY, INJURY TO PROPERTY OR WRONGFUL DEATH, OTHER THAN A MEDICAL, 23 DENTAL OR PODIATRIC MALPRACTICE ACTION COMMENCED ON OR AFTER JULY TWEN- 24 TY-SIXTH, TWO THOUSAND THREE, THE COURT'S DECISION AS TO FUTURE DAMAGES 25 SHALL BE ITEMIZED IN ACCORDANCE WITH SUBDIVISION (E) OF RULE FORTY-ONE 26 HUNDRED ELEVEN OF THIS CHAPTER. 27 S 7. Section 5-101 of the general obligations law is amended by adding 28 a new subdivision 4 to read as follows: 29 4. AS USED IN SECTION 5-335 OF THIS ARTICLE, THE TERM "BENEFIT PROVID- 30 ER" MEANS ANY INSURER, HEALTH MAINTENANCE ORGANIZATION, HEALTH BENEFIT 31 PLAN, PREFERRED PROVIDER ORGANIZATION, EMPLOYEE BENEFIT PLAN OR OTHER 32 ENTITY WHICH PROVIDES FOR PAYMENT OR REIMBURSEMENT OF HEALTH CARE 33 EXPENSES, HEALTH CARE SERVICES, DISABILITY PAYMENTS, LOST WAGE PAYMENTS 34 OR ANY OTHER BENEFITS UNDER A POLICY OF INSURANCE OR CONTRACT WITH AN 35 INDIVIDUAL OR GROUP. 36 S 8. The general obligations law is amended by adding a new section 37 5-335 to read as follows: 38 S 5-335. LIMITATION OF NON-STATUTORY REIMBURSEMENT AND SUBROGATION 39 CLAIMS IN PERSONAL INJURY AND WRONGFUL DEATH ACTIONS. (A) WHEN A PLAIN- 40 TIFF SETTLES WITH ONE OR MORE DEFENDANTS IN AN ACTION FOR PERSONAL INJU- 41 RIES, MEDICAL, DENTAL, OR PODIATRIC MALPRACTICE, OR WRONGFUL DEATH, IT 42 SHALL BE CONCLUSIVELY PRESUMED THAT THE SETTLEMENT DOES NOT INCLUDE ANY 43 COMPENSATION FOR THE COST OF HEALTH CARE SERVICES, LOSS OF EARNINGS OR 44 OTHER ECONOMIC LOSS TO THE EXTENT THOSE LOSSES OR EXPENSES HAVE BEEN OR 45 ARE OBLIGATED TO BE PAID OR REIMBURSED BY A BENEFIT PROVIDER, EXCEPT FOR 46 THOSE PAYMENTS AS TO WHICH THERE IS A STATUTORY RIGHT OF REIMBURSEMENT. 47 BY ENTERING INTO ANY SUCH SETTLEMENT, A PLAINTIFF SHALL NOT BE DEEMED TO 48 HAVE TAKEN AN ACTION IN DEROGATION OF ANY NONSTATUTORY RIGHT OF ANY 49 BENEFIT PROVIDER THAT PAID OR IS OBLIGATED TO PAY THOSE LOSSES OR 50 EXPENSES; NOR SHALL A PLAINTIFF'S ENTRY INTO SUCH SETTLEMENT CONSTITUTE 51 A VIOLATION OF ANY CONTRACT BETWEEN THE PLAINTIFF AND SUCH BENEFIT 52 PROVIDER. 53 EXCEPT WHERE THERE IS A STATUTORY RIGHT OF REIMBURSEMENT, NO PARTY 54 ENTERING INTO SUCH A SETTLEMENT SHALL BE SUBJECT TO A SUBROGATION CLAIM 55 OR CLAIM FOR REIMBURSEMENT BY A BENEFIT PROVIDER AND A BENEFIT PROVIDER 56 SHALL HAVE NO LIEN OR RIGHT OF SUBROGATION OR REIMBURSEMENT AGAINST ANY A. 7504--B 4 1 SUCH SETTLING PARTY, WITH RESPECT TO THOSE LOSSES OR EXPENSES THAT HAVE 2 BEEN OR ARE OBLIGATED TO BE PAID OR REIMBURSED BY SAID BENEFIT PROVIDER. 3 (B) THIS SECTION SHALL NOT APPLY TO A SUBROGATION CLAIM FOR RECOVERY 4 OF ADDITIONAL FIRST-PARTY BENEFITS PROVIDED PURSUANT TO ARTICLE 5 FIFTY-ONE OF THE INSURANCE LAW. THE TERM "ADDITIONAL FIRST-PARTY BENE- 6 FITS", AS USED IN THIS SUBDIVISION, SHALL HAVE THE SAME MEANING GIVEN IT 7 IN SECTION 65-1.3 OF TITLE 11 OF THE CODES, RULES AND REGULATIONS OF THE 8 STATE OF NEW YORK AS OF THE EFFECTIVE DATE OF THIS STATUTE. 9 S 9. This act shall take effect immediately and shall apply to all 10 actions and proceedings commenced on or after such date; provided, 11 however, that sections four through eight of this act shall also apply 12 to any action or proceeding which was commenced prior to such effective 13 date where, as of such date, either (a) a trial of the issues has not 14 yet commenced, or (b) the parties have not yet entered into a stipu- 15 lation of settlement.