ENTITLED, An Act to provide certain provisions regarding asbestos bankruptcy trust claims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That the code be amended by adding a NEW SECTION to read:
Terms used in this Act mean:
(1) "Asbestos," chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, or any of these minerals that have been chemically treated or altered, including any mineral defined as asbestos in 29 C.F.R. § 1910 at the time an asbestos action is filed;
(2) "Asbestos action," a claim for damages or other civil or equitable relief presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium, wrongful death, mental or emotional injury, risk or fear of disease or other injury, costs of medical monitoring or surveillance, and any other derivative claim made by or on behalf of a person exposed to asbestos or a representative, spouse, parent, child, or other relative of that person. The term does not include a claim for workers' compensation or veterans' benefits;
(3) "Asbestos trust," a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. § 524(g) or 11 U.S.C. § 1121(a) or any other law, that is intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos;
(4) "Plaintiff," any person who brings an asbestos action, including a personal representative for any asbestos action that is brought by an estate, or a conservator or next friend for any asbestos action that is brought on behalf of a minor or a legally incapacitated person;
(5) "Trust claims material," any final executed proof of claim, any other document or information submitted to an asbestos trust, including a claim form or supplementary material, affidavit, deposition or trial testimony, work history, medical or health record, document reflecting the status of a claim against an asbestos trust, or if the trust claim has settled, any document submitted to or received from an asbestos trust relating to the settlement of the trust claim; and
(6) "Trust governance document," any document that relates to eligibility or payment levels, including a claims payment matrix, trust distribution procedure, or plan for reorganization, for an asbestos trust.
Section 2. That the code be amended by adding a NEW SECTION to read:
Not more than one hundred twenty days prior to the date set for trial for each asbestos action filed in this state, the plaintiff shall provide each party with a sworn statement identifying any asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf, including a claim regarding asbestos-related conditions other than those that are the basis for the asbestos action or that potentially could be filed by the plaintiff against an asbestos trust.
Section 3. That the code be amended by adding a NEW SECTION to read:
For each asbestos trust claim or potential asbestos trust claim identified in the sworn statement under section 2 of this Act, the statement shall include:
(1) The name, address and contact information for the asbestos trust, the amount claimed or to be claimed by the plaintiff, the date the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim; and
(2) An attestation from the plaintiff, under penalty of perjury, that the sworn statement is complete and based on a good faith investigation of any potential claim against an asbestos trust.
Section 4. That the code be amended by adding a NEW SECTION to read:
The plaintiff shall make available to each party any trust claims material for each asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf against an asbestos trust, including any asbestos-related disease. The plaintiff shall supplement the information and material provided pursuant to this section within ninety days after the plaintiff files an additional asbestos trust claim, supplements an existing asbestos trust claim, or receives additional information or material related to any claim or potential claim against an asbestos trust. Failure by the plaintiff to make available to all parties any trust claims material required under this section constitutes grounds for the court to extend the trial date in an asbestos action.
Section 5. That the code be amended by adding a NEW SECTION to read:
Every trust claims material or trust governance document is presumed to be relevant and authentic and is admissible in evidence. Claims of privilege do not apply to any trust claims material or trust governance document. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent or other expression of permission that may be required by the asbestos trust to release information or material sought by a defendant.
Section 6. That the code be amended by adding a NEW SECTION to read:
A court shall stay an asbestos action if the court finds that the plaintiff has failed to make any disclosure required under this Act within one hundred twenty days before the trial date. If, in any disclosure required under this Act, a plaintiff identifies a potential asbestos trust claim, the judge may stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with any trust claims material for the claim. The plaintiff shall also state whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.
Section 7. That the code be amended by adding a NEW SECTION to read:
If, not less than ninety days before trial, a defendant identifies an asbestos trust claim not previously identified by the plaintiff that the defendant reasonably believes the plaintiff may file, the defendant shall confer with the plaintiff regarding any additional asbestos trust claim that may be filed by the plaintiff. The defendant may move the court for an order to require the plaintiff to file any additional asbestos trust claim following the meeting under this section. The defendant shall produce or describe any documentation the defendant possesses or of which the defendant is aware in support of the motion.
Section 8. That the code be amended by adding a NEW SECTION to read:
Within ten days following receipt of the defendant's motion under section 7 of this Act, the plaintiff shall for each asbestos trust claim identified by the defendant:
(1) File the asbestos trust claim;
(2) File a written response with the court setting forth any reason why there is insufficient evidence for the plaintiff to file the asbestos trust claim; or
(3) File a written response with the court requesting a determination that the plaintiff's expenses, or attorney's fees and expenses, to prepare and file the asbestos trust claim identified in the defendant's motion exceed the plaintiff's reasonably anticipated recovery from the trust.
Section 9. That the code be amended by adding a NEW SECTION to read:
If the court determines that there is sufficient basis for the plaintiff to file an additional asbestos trust claim identified by the defendant pursuant to section 7 of this Act, the court shall order the plaintiff to file the asbestos trust claim and shall stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with any trust claims material within thirty days before the trial date. If the court determines that the plaintiff's expenses, or attorney's fees and expenses, to prepare and file the asbestos trust claim identified in the defendant's motion under section 7 of this
Act exceed the plaintiff's reasonably anticipated recovery from the asbestos trust, the court shall stay the asbestos action until the plaintiff files with the court and provides each party with a verified statement of the plaintiff's history of exposure, usage, or any other connection to asbestos covered by the asbestos trust.
Section 10. That the code be amended by adding a NEW SECTION to read:
If a plaintiff proceeds to trial in an asbestos action before an asbestos trust claim is resolved, the filing of the asbestos trust claim may be considered relevant and admissible evidence.
Section 11. That the code be amended by adding a NEW SECTION to read:
A plaintiff who fails to provide any information required under this Act is subject to a sanction as provided in the South Dakota Rules of Civil Procedure and any other relief for a defendant that the court considers just and proper.
Section 12. That the code be amended by adding a NEW SECTION to read:
This Act applies to any asbestos action filed on or after July 1, 2017.
An Act to provide certain provisions regarding asbestos bankruptcy trust claims.
I certify that the attached Act originated in the
SENATE as Bill No. 138
Secretary of the Senate
President of the Senate
Secretary of the Senate
Speaker of the House
Senate Bill No. 138
File No. ____
Chapter No. ______
Received at this Executive Office this _____ day of _____________ ,
20____ at ____________ M.
for the Governor
The attached Act is hereby approved this ________ day of ______________ , A.D., 20___
STATE OF SOUTH DAKOTA,
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
Secretary of State
Asst. Secretary of State