Rpld S4545 subs (a) & (b) & R4111 sub (e), amd SS4213 & 4545, R4111, CPLR; amd S5-101, add S5-335, Gen Ob L
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.
STATE OF NEW YORK
________________________________________________________________________
7504--B
Cal. No. 631
2009-2010 Regular Sessions
IN ASSEMBLY
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2 tice law and rules are REPEALED.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 § 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 § 3. Subdivision (d) of section 4545 of the civil practice law and
23 rules is relettered subdivision (b).
24 § 4. Subdivision (e) of rule 4111 of the civil practice law and rules
25 is REPEALED.
26 § 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 § 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 § 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 § 8. The general obligations law is amended by adding a new section
37 5-335 to read as follows:
38 § 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 fifty-
5 one of the insurance law. The term "additional first-party benefits", as
6 used in this subdivision, shall have the same meaning given it in
7 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 § 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.
