S T A T E   O F   N E W   Y O R K
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                                  2875

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2009
                               ___________

Introduced  by  M.  of A. WEINSTEIN, LANCMAN, DelMONTE, BOYLAND, WEISEN-
  BERG, TITONE, BRADLEY, FIELDS, COLTON -- read once and referred to the
  Committee on Judiciary

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  impact  of  collateral  source  payments upon tort claims for personal
  injury, property damage or wrongful death, and upon  related  subroga-
  tion claims; and in relation to equalizing the treatment of collateral
  sources in tort actions; and repealing certain provisions of the civil
  practice law and rules relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions (a) and (b) of section 4545 of the civil prac-
tice law and rules are REPEALED.
  S 2. Subdivision (c) of section 4545 of the  civil  practice  law  and
rules,  as  added by chapter 220 of the laws of 1986, is amended to read
as follows:
  [(c)] (A) Actions for personal injury, injury to property or  wrongful
death.    In  any action brought to recover damages for personal injury,
injury to property or wrongful  death,  where  the  plaintiff  seeks  to
recover  for  the  cost  of medical care, dental care, custodial care or
rehabilitation services,  loss  of  earnings  or  other  economic  loss,
evidence shall be admissible for consideration by the court to establish
that  any  such past or future cost or expense was or will, with reason-
able certainty, be replaced or indemnified, in whole or  in  part,  from
any  collateral source [such as insurance] (except for life insurance)[,
social security (except those benefits provided under title XVIII of the
social security act), workers' compensation or employee benefit programs
(except such collateral sources entitled by law  to  liens  against  any
recovery  of  the plaintiff)], AND EXCEPT FOR THOSE PAYMENTS AS TO WHICH
THERE IS A STATUTORY RIGHT OF REIMBURSEMENT.   If the court  finds  that
any  such  cost  or  expense  was or will, with reasonable certainty, be

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01597-01-9
              

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replaced or indemnified from any SUCH collateral source, it shall reduce
the amount of the award by such finding, minus an amount  equal  to  the
premiums paid by the plaintiff for such benefits for the two-year period
immediately  preceding  the  accrual  of such action and minus an amount
equal to the projected future cost to the plaintiff of maintaining  such
benefits.  In  order  to find that any future cost or expense will, with
reasonable certainty, be  replaced  or  indemnified  by  the  collateral
source,  the  court  must find that the plaintiff is legally entitled to
the continued receipt of such collateral source, pursuant to a  contract
or  otherwise  enforceable  agreement,  subject  only  to  the continued
payment of a premium and such other  financial  obligations  as  may  be
required by such agreement.  ANY COLLATERAL SOURCE DEDUCTION REQUIRED BY
THIS SUBDIVISION SHALL BE MADE BY THE TRIAL COURT AFTER THE RENDERING OF
THE  JURY'S  VERDICT.    THE  PLAINTIFF  MAY PROVE HIS OR HER LOSSES AND
EXPENSES AT THE TRIAL IRRESPECTIVE OF WHETHER SUCH SUMS WILL LATER  HAVE
TO BE DEDUCTED FROM THE PLAINTIFF'S RECOVERY.
  S  3.  Subdivision  (d)  of section 4545 of the civil practice law and
rules is relettered subdivision (b) and a new subdivision (c)  is  added
to read as follows:
  (C)  NO RIGHT OF REIMBURSEMENT FOR CERTAIN COLLATERAL SOURCE PAYMENTS.
A COLLATERAL SOURCE PAYOR WHICH HAS MADE PAYMENT TO A PERSON WHO  HAD  A
CLAIM  FOUNDED  ON PERSONAL INJURY OR WRONGFUL DEATH SHALL HAVE NO RIGHT
TO SEEK REIMBURSEMENT FROM EITHER THE PLAINTIFF OR THE TORTFEASOR UNLESS
THE RIGHT TO SEEK SAID REIMBURSEMENT IS SET FORTH BY STATUTE.   WHEN  AN
ACTION WITHIN THE SCOPE OF THIS SECTION SETTLES, IT SHALL BE CONCLUSIVE-
LY  PRESUMED  THAT  THE SETTLEMENT DOES NOT INCLUDE ANY COMPENSATION FOR
THOSE LOSSES OR EXPENSES THAT WOULD HAVE BEEN DEDUCTED, PURSUANT TO THIS
SECTION, FROM ANY VERDICT THAT THE PLAINTIFF MIGHT HAVE  OBTAINED.    BY
ENTERING INTO A SETTLEMENT AGREEMENT, A PLAINTIFF SHALL NOT BE DEEMED TO
HAVE  TAKEN  AN  ACTION  IN DEROGATION OF THE NON-STATUTORY RIGHT OF ANY
PERSON  WHO  SUPPLIED  THE  COLLATERAL  SOURCE  PAYMENTS;  NOR  SHALL  A
PLAINTIFF'S  ENTRY  INTO  SUCH  AGREEMENT  CONSTITUTE A VIOLATION OF ANY
CONTRACT BETWEEN THE PLAINTIFF AND THE PERSON WHO SUPPLIED  THE  COLLAT-
ERAL  PAYMENTS.    EXCEPT  WHERE  THERE IS A STATUTORY LIEN OR STATUTORY
SUBROGATION RIGHT, NO DEFENDANT ENTERING INTO SUCH SETTLEMENT  SHALL  BE
SUBJECT  TO  A  CLAIM  FOR  REIMBURSEMENT BY ANY PERSON WHO SUPPLIED THE
COLLATERAL SOURCE PAYMENTS.
  S 4. Subdivision (e) of rule 4111 of the civil practice law and  rules
is REPEALED.
  S 5. Subdivision (f) of rule 4111 of the civil practice law and rules,
as amended by chapter 100 of the laws of 1994, is relettered subdivision
(e) and amended to read as follows:
  (e)  Itemized  verdict  in  certain  actions.  In an action brought to
recover damages for personal injury,  injury  to  property  or  wrongful
death,  which is not subject to [subdivisions] SUBDIVISION (d) [and (e)]
of this rule, the court shall instruct the jury that if the jury finds a
verdict awarding damages, it shall in its verdict specify the applicable
elements of special and general damages upon which the  award  is  based
and  the  amount assigned to each element including, but not limited to,
medical expenses, dental expenses, loss of earnings, impairment of earn-
ing ability, and pain and suffering. Each element shall be further item-
ized into amounts intended to compensate  for  damages  that  have  been
incurred  prior  to  the  verdict and amounts intended to compensate for
damages to be incurred in the future. In itemizing amounts  intended  to
compensate  for  future  damages, the jury shall set forth the period of
years over which such amounts are intended to provide compensation.   In

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actions  in which article fifty-A or fifty-B of this chapter applies, in
computing said damages, the jury shall be instructed to award  the  full
amount  of  future  damages, as calculated, without reduction to present
value.
  S  6.  Subdivision  (b)  of section 4213 of the civil practice law and
rules, as separately amended by chapters 485 and  682  of  the  laws  of
1986, is amended to read as follows:
  (b)  Form  of  decision.  The  decision of the court may be oral or in
writing and shall state the facts it deems  essential.  In  [a  medical,
dental  or podiatric malpractice action or in an action against a public
employer or a public employee who is subject  to  indemnification  by  a
public  employer  with respect to such action or both, as such terms are
defined in subdivision (b) of section forty-five hundred forty-five, for
personal injury or wrongful death arising out of an injury sustained  by
a public employee while acting within the scope of his public employment
or  duties,  and  in]  any [other] action brought to recover damages for
personal injury, injury to  property,  or  wrongful  death,  a  decision
awarding  damages  shall  specify the applicable elements of special and
general damages upon which the award is based and the amount assigned to
each element, including but not  limited  to  medical  expenses,  dental
expenses,  podiatric  expenses,  loss of earnings, impairment of earning
ability, and pain and suffering.  In  a  medical,  dental  or  podiatric
[malpractice]  action,  [and  in  any  other  action  brought to recover
damages for personal injury, injury to property, or wrongful death, each
element shall be further itemized into amounts  intended  to  compensate
for  damages  which have been incurred prior to the decision and amounts
intended to compensate for damages to be  incurred  in  the  future.  In
itemizing  amounts  intended to compensate for future damages, the court
shall set forth the period of years over which such amounts are intended
to provide compensation. In computing  said  damages,  the  court  shall
award  the  full  amount  of  future  damages,  as  calculated,  without
reduction to present value] THE COURT'S DECISION AS  TO  FUTURE  DAMAGES
SHALL  BE  ITEMIZED IN ACCORDANCE WITH SUBDIVISION (D) OF RULE FORTY-ONE
HUNDRED ELEVEN OF THIS CHAPTER.
  S 7. This act shall take effect immediately and  shall  apply  to  all
actions and proceedings commenced on or after such date.