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On Thursday, June 1st
the South Carolina General Assembly adjourned sine die wrapping
up the 2 year legislative session.
The first year of the
session, 2005, was one of the most successful for the South
Carolina business community in recent memory, in part, because
of the enactment of meaningful tort reform last March
Unfortunately, the
2006 session did not result in any major civil justice reform
victories but progress was made on workers compensation reform
and we stopped the most dangerous litigation friendly
legislation introduced in years - the False Claims Act (which
should be known as the "Trial Lawyers Full Employment Act").
 Overall,
to use football terminology, I would say we had a good year on
defense but we need to work hard to improve our offense during
the "off-season".
1) H. 4427 - Workers
Compensation Reform legislation introduced by House Labor,
Commerce and Industry Committee Chairman Harry Cato passed the
House of Representatives. The positive aspects of the
legislation was the major scaling back of the Second Injury
Fund, repeal of Brown v. BiLo case (communication between
employers and employees doctors) and stronger workers
compensation fraud provisions. The House, in effect, reversed
the House LCI Committee's decision to repeal the Tiller case
(qualifications for medical expert witnesses) and repetitive
trauma (compensation of injuries not caused by a single event or
accident). In addition, an amendment sponsored by Rep. Tracy
Edge to rein in the Workers Compensation Commission's awards
requiring the use of AMA Guidelines was defeated.
The goal of the South
Carolina Civil Justice Coalition was comprehensive workers
compensation reform and the coalition voted to oppose H. 4427 as
passed by the House because the legislation would not produce
significant cost reductions.
The foundation of any
workers compensation reform legislation must address the Second
Injury Fund, repeal the Supreme Court cases that have
significantly increased costs and deal with the subjectivity of
the Workers Compensation Commission's awards. H. 4427 as passed
by the House did not adequately address all these issues.
It should be noted
that H. 4427 was the first workers compensation reform bill
reported out of sub committee or House LCI Committee in years.
We made progress but we still have a lot of work to do.
2) S. 1176 False
Claims Act died on the Senate contested calendar. The False
Claims Act would have allowed for private attorneys to act as
"mini attorneys general" and sue any contractor or sub
contractor doing business with the State. Fortunately, Senators
Scott Richardson, Greg Ryberg, Jim Ritchie and Kevin Bryant
fought this bill and kept it from passing the Senate.
Senator Gerald Malloy
sponsored this legislation and attempted on several occasions to
attach the False Claims Act as an amendment to other bills.
Senators Richardson, Martin and others blocked these amendments.
3) S. 1113 Senate
Resolution calling for oversight hearings of the Department of
Insurance died on the Senate calendar. Senator Kevin Bryant
objected to this resolution and kept it from passing. The
resolution was introduced by Senator Malloy, president of the
South Carolina Trial Lawyers Association, who wanted to focus
these hearings on workers compensation. These hearings would
only delay reform.
4) Budget Proviso -
Workers Compensation Study Committee - defeated twice. Senator
Luke Rankin and others introduced a proviso to establish a
workers compensation study committee to meet and provide
recommendations to the General Assembly. Only one true business
organization was represented on the committee, the rest of the
participates were trial attorneys or consumer advocates.
Senators Richardson, Leatherman, Peeler, Ryberg, Fair and others
defeated this proviso in committee and again on the Senate
floor.
5) S. 807 -
Commercial Right to Cure (McConnell). This provision was
originally part of our tort reform legislation in 2003 and
because of the hard work of Leslie Hope and Sammy Hendrix of AGC
it passed this session. The bill provides for procedures to cure
non-residential construction defects before a civil action can
be filed.
6) S. 1174
(McConnell) technical changes to the title and function of the
executive director of the Workers Compensation Commission was
enacted into law without amendment. An amendment to this bill
allowing for the General Assembly to elect the Workers
Compensation Commission members was defeated in the House.
7) H. 3700 (Clemmons)
relating to venue in landlord tenant matters provides that
actions must be filed where the property is located. Senator
Malloy unsuccessfully tried to attach the False Claims Act
amendment to this bill several times on the Senate floor.
Senator Hutto did amend this bill with a provision allowing for
non-binding arbitration or other forms of alternative dispute
resolution in med mal actions.
8) H. 4363 - Appeal
Bond Reform (Cato) received a hearing in House Constitutional
Laws Sub Committee. While the bill did not pass, we educated the
sub committee on the issue and started to build support for this
legislation in 2007.
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