§663-10.9 - Abolition of joint and several liability; exceptions.

§663-10.9 Abolition of joint and several
liability; exceptions. [Repeal of section on October 1, 1995, by L
1993, c 238, §1 deleted by L 1995, c 130, §1.] Joint and several liability
for joint tortfeasors as defined in section 663-11 is abolished except in the
following circumstances:

(1) For the recovery of economic damages against
joint tortfeasors in actions involving injury or death to persons;

(2) For the recovery of economic and noneconomic
damages against joint tortfeasors in actions involving:

(A) Intentional torts;

(B) Torts relating to environmental pollution;

(D) Torts relating to aircraft accidents;

(E) Strict and products liability torts; or

(F) Torts relating to motor vehicle accidents
except as provided in paragraph (4);

(3) For the recovery of noneconomic damages in
actions, other than those enumerated in paragraph (2), involving injury or
death to persons against those tortfeasors whose individual degree of
negligence is found to be twenty-five per cent or more under section 663-31.
Where a tortfeasor's degree of negligence is less than twenty-five per cent,
then the amount recoverable against that tortfeasor for noneconomic damages
shall be in direct proportion to the degree of negligence assigned; and

(4) For recovery of noneconomic damages in motor
vehicle accidents involving tort actions relating to the maintenance and design
of highways including actions involving guardrails, utility poles, street and
directional signs, and any other highway-related device upon a showing that the
affected joint tortfeasor was given reasonable prior notice of a prior
occurrence under similar circumstances to the occurrence upon which the tort
claim is based. In actions in which the affected joint tortfeasor has not been
shown to have had such reasonable prior notice, the recovery of noneconomic
damages shall be as provided in paragraph (3).

(5) Provided, however, that joint and several
liability for economic and noneconomic damages for claims against design
professionals, as defined in chapter 672, and certified public accountants, as
defined in chapter 466, is abolished in actions not involving physical injury
or death to persons. [L Sp 1986, c 2, §17; am L 1989, c 300, §2; am L 1991, c
62, §1; am L 1993, c 238, §1; am L 1999, c 237, §4]

Note

Chapter 672 referred to in text is repealed.

Cross References

Contractor repair act, see chapter 672E.

Law Journals and Reviews

Ozaki and Comparative Negligence: Imposing Joint Liability
Where a Duty to Protect or Prevent Harm from Third Party Intentional
Tortfeasors Exits Is Fairer to Plaintiffs and Defendants. 26 UH L. Rev. 575.

Case Notes

State properly held jointly and severally liable under
paragraph (4) as a "prior occurrence" need not be identical or
exactly similar to put State on "reasonable prior notice"; it was
enough that the State knew of the particular defective guardrail, had an
opportunity to correct it, and failed to do so. 91 H. 60, 979 P.2d 1086.

Section 663-10.5, which abolishes joint and several liability
for government entities, did not supersede or impliedly repeal (1) paragraph
(4), which expressly allows for recovery of non-economic damages in motor
vehicle accidents involving the maintenance and design of highways, or (2)
paragraph (1), that provides for the recovery of economic damages against joint
tortfeasors in actions involving injury or death to persons. 110 H. 97, 129
P.3d 1125.

Plaintiffs' negligence claim included the right to recover
under an unmodified doctrine of joint and several liability, as at the time
their claim accrued, §663-10.5 (2005) imposed joint and several liability for
economic and noneconomic damages upon any jointly liable person; thus, because
the legislature did not intend for Act 112, L 2006 to apply retroactively to
divest the plaintiffs’ accrued or substantive rights, the trial court correctly
concluded that Act 112 did not apply to the case. 117 H. 262, 178 P.3d 538.

Section does not abolish joint and several liability for
actions involving intentional torts; condominium association and murderer were
thus jointly and severally liable to plaintiffs for noneconomic as well as
economic damages, subject to reduction proportional to victim's assigned
negligence. 87 H. 273 (App.), 954 P.2d 652.

Construing the language of §§431:10C-301 and 431:10C-103
governing uninsured motorist (UM) and underinsured motorist (UIM) insurance
according to their plain and commonly understood meaning and in pari materia
with §663-11 and this section, UM and UIM policies must provide coverage for
all damages which an insured is legally entitled to recover from the owner or
operator of an uninsured or underinsured motor vehicle, which necessarily
encompasses damages for which the owner or operator of an uninsured or
underinsured motor vehicle is jointly and severally liable pursuant to §§663-11
and this section. 120 H. 329 (App.), 205 P.3d 594.

Prior law.

Joint and several liability imposed on asbestos manufacturers
in products liability action. 960 F.2d 806.