Suits After November First
the triggers on the new tort law when the action arose rather than when
filed? So, if injured prior to Nov. 1, and filed thereafter, the new law
shouldn't apply substantively, although some procedural matters might?
Answer: That is, of course, the general rule that substantive amendments don’t apply to causes of action which have already arisen while procedural amendments do. However, there are a lot of problems with that general rule in this bill.
Some of the provisions (most of them, actually) don’t purport to say whether they apply to all cases, cases filed after or causes of action arising after the November 1, 2009 effective date. I think a safe rule of thumb will be that those that do not specify otherwise will apply the general rule so that substantive issues will not apply to causes of action accruing before. However, as to those where the statute purports to apply them retroactively, I think the court will likely give the statute that interpretation unless you can persuade the court doing so is unconstitutional.
As you probably know, the “biggy” capping non-economic damages does not by its terms purport to apply until some later date at which time the legislature funds an excess $20 million malpractice policy for all physicians in the state.
Posted on Sat, May 1, 2010
by Sharon Coleman filed under