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Third Substitute S.B. 35
Representative John E. Swallow proposes to substitute the following bill:
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GOVERNMENT TORT LIABILITY AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Howard A. Stephenson
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Lyle W. Hillyard
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Terry R. Spencer
John L. Valentine
Ed P. Mayne
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AN ACT RELATING TO STATE AFFAIRS IN GENERAL; MODIFYING PROVISIONS TO
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THE GOVERNMENT'S WAIVERS OF IMMUNITY; CHANGING THE TIME PERIOD FOR
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FILING CLAIMS; MODIFYING THE DAMAGE CAPS; ALLOWING A GOVERNMENT
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ENTITY TO SEEK APPOINTMENT OF A GUARDIAN AD LITEM FOR MINOR
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CLAIMANTS; MODIFYING THE TIME FOR CLAIMS; INCREASING THE AMOUNT
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REQUIRED FOR UNDERTAKINGS; MODIFYING A STATUTE OF LIMITATIONS
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REQUIREMENT; MAKING TECHNICAL CORRECTIONS; PROVIDING A TRANSITIONAL
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CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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63-30-11, as last amended by Chapter 164, Laws of Utah 1998
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63-30-19, as enacted by Chapter 139, Laws of Utah 1965
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63-30-34, as last amended by Chapter 76, Laws of Utah 1991
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78-12-28, as last amended by Chapter 153, Laws of Utah 1997
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
63-30-11
is amended to read:
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63-30-11. Claim for injury -- Notice -- Contents -- Service -- Legal disability.
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(1) A claim arises when the statute of limitations that would apply if the claim were
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against a private person begins to run.
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(2) Any person having a claim for injury against a governmental entity, or against its
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employee for an act or omission occurring during the performance of the employee's duties, within
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the scope of employment, or under color of authority shall file a written notice of claim with the
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entity before maintaining an action, regardless of whether or not the function giving rise to the
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claim is characterized as governmental.
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(3) (a) The notice of claim shall set forth:
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(i) a brief statement of the facts;
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(ii) the nature of the claim asserted; and
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(iii) the damages incurred by the claimant so far as they are known.
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(b) The notice of claim shall be:
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(i) signed by the person making the claim or that person's agent, attorney, parent, or legal
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guardian; and
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(ii) directed and delivered to:
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(A) the city or town recorder, when the claim is against an incorporated city or town;
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(B) the county clerk, when the claim is against a county;
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(C) the superintendent or business administrator of the board, when the claim is against
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a school district or board of education;
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(D) the president or secretary of the board, when the claim is against a special district;
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(E) the attorney general, when the claim is against the State of Utah; or
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(F) a member of the governing board, the executive director, or executive secretary, when
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the claim is against any other public board, commission, or body.
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(4) (a) If the claimant is under the age of majority, or mentally incompetent and without
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a legal guardian at the time the claim arises, the claimant may apply to the court to extend the time
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for service of notice of claim.
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(b) (i) After hearing and notice to the governmental entity, the court may extend the time
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for service of notice of claim.
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(ii) The court may not grant an extension that exceeds the applicable statute of limitations.
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(c) In determining whether or not to grant an extension, the court shall consider whether
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the delay in serving the notice of claim will substantially prejudice the governmental entity in
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maintaining its defense on the merits.
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(d) (i) If an injury that may reasonably be expected to result in a claim against a
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governmental entity is sustained by a potential claimant described in Subsection (4)(a), that
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government entity may file a request with the court for the appointment of a guardian ad litem for
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the potential claimant.
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(ii) If a guardian ad litem is appointed under this Subsection (4)(d), the time for filing a
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claim under Sections
63-30-12
and
63-30-13
begins when the order appointing the guardian is
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issued.
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Section 2.
Section
63-30-19
is amended to read:
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63-30-19. Undertaking required of plaintiff in action.
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At the time of filing the action the plaintiff shall file an undertaking in a sum fixed by the
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court, but in no case less than the sum of [$300] $600, conditioned upon payment by the plaintiff
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of taxable costs incurred by the governmental entity in the action if the plaintiff fails to prosecute
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the action or fails to recover judgment.
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Section 3.
Section
63-30-34
is amended to read:
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63-30-34. Limitation of judgments against governmental entity or employee --
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Insurance coverage exception.
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(1) (a) Except as provided in [Subsection] Subsections (2) and (3), if a judgment for
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damages for personal injury against a governmental entity, or an employee whom a governmental
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entity has a duty to indemnify, exceeds [$250,000] $500,000 for one person in any one occurrence,
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or [$500,000] $1,000,000 for two or more persons in any one occurrence, the court shall reduce
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the judgment to that amount.
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(b) A court may not award judgment of more than [$250,000] $500,000 for injury or death
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to one person regardless of whether or not the function giving rise to the injury is characterized as
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governmental.
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(c) Except as provided in Subsection (2), if a judgment for property damage against a
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governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds
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[$100,000] $200,000 in any one occurrence, the court shall reduce the judgment to that amount,
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regardless of whether or not the function giving rise to the damage is characterized as
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governmental.
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(2) The damage limits established in this section do not apply to damages awarded as
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compensation when a governmental entity has taken or damaged private property for public use
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without just compensation.
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(3) The limitations of judgments established in Subsection (1) shall be adjusted according
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to the methodology set forth in Subsection (4).
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(4) (a) Each year, the Risk Manager shall:
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(i) calculate the consumer price index as provided in Sections 1(f)(4) and 1(f)(5), Internal
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Revenue Code;
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(ii) calculate the increase or decrease in the limitation of judgment amounts established
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in this section as a percentage equal to the percentage difference between the consumer price index
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for the preceding calendar year and the consumer price index for calendar year 1999; and
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(iii) after making an increase or decrease under Subsection (3)(a)(ii), round up the
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limitation of judgment amounts established in Subsection (1) to the nearest $100.
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(b) Each even numbered year, the Risk Manager shall make rules, which become effective
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no later than July 1, that establish the new limitation of judgment amounts.
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(c) Adjustments made by the risk manager to the limitation of judgment amounts
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established by this section have prospective effect only from the date the rules establishing the new
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limitation of judgment take effect and those adjusted limitations of judgment apply only to claims
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for injuries or losses that occur after the effective date of the rules that establish those new
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limitations of judgement.
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Section 4.
Section
78-12-28
is amended to read:
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78-12-28. Within two years.
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An action may be brought within two years:
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(1) against a marshal, sheriff, constable, or other officer for liability incurred by the doing
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of an act in his official capacity, and by virtue of his office, or by the omission of an official duty,
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including the nonpayment of money collected upon an execution;
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(2) for recovery of damages for a death caused by the wrongful act or neglect of another;
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[or]
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(3) in causes of action against the state and its employees, for injury to the personal rights
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of another if not otherwise provided by state or federal law[.]; or
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(4) in causes of action against a political subdivision of the state and its employees, for
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injury to the personal rights of another arising after May 1, 2000, if not otherwise provided by state
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or federal law.
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Section 5. Transitional clause.
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This act has prospective effect only and any changes to the law caused by the amendments
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to Section
78-12-28
do not apply to any claims based upon injuries or losses that occurred before
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May 1, 2000, and any changes to the law caused by other sections amended by this act do not apply
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to any claims based upon injuries or losses that occurred before July 1, 2001.
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Section 6. Effective date.
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This act takes effect on July 1, 2001, except that Section
78-12-28 takes effect May 1,
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2000
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