March 4, 2015

Comparative Negligence – Squeaks Out of Committee

Heading to the full Senate looking for grease

Friday’s issue of Capitol-ism focused on HB 1103 Stevens R-Yankton – A bill that would change how comparative negligence is determined in South Dakota law.  Currently, the law in this state says a person cannot sue other people if a plaintiff is “more than slightly” negligent or responsible for the damage or harm to his/her own self.

HB 1103 is being pushed by the trial lawyers.  Their major complaint is that the law lacks a clear definition for the word “slight”.  The Chamber’s problem with their solution is that trying to define “more than 49%” in the end, on any given case, isn’t any clearer. 

The Chamber and other business groups believe HB 1103 will cause increased insurance policy payouts and will be an incentive for more lawsuits. 

The vote in the committee was close 4 to 3.  Here is the committee vote:

HB 1103, Senate Commerce and Energy, Do Pass Amended

ACT NOW – HB 1103 will be on the floor of the Senate on Thursday.  Now is the time to send an email to your Senator asking him/her to leave in place the negligence standard that has worked for 70 years.

What can you do when your work comp insurance company is treating subcontractors as employees . . . and charging you for them?

HB 1105 – Hawley D-Brookings - Workers’ Compensation and Subcontractors

Working to keep insurance companies from morphing subcontractors into employees.

It seems straight forward – you would never in an entire lifetime have enough work to keep a full time sheetrock installer busy so you hire subcontractors whenever there is a need to hang sheetrock.

Your business doesn’t want the subcontractor to be an employee, which matches well with the fact that the subcontractor would most likely break out in hives at the thought of being an employee.  The mutually agreeable situation has worked smoothly until the past several years when some work comp insurance carriers decided that those subcontractors were really employees and charged premiums for them.

Suddenly, you have a big bill and a bigger argument which some businesses have been losing.  The answer – HB 1105 which creates a new affidavit that the subcontractor can submit to the general contractor to affirm he/she works alone and has no need for work comp coverage.  Then, if an insurance company thinks it sees an employee where a subcontractor is standing you can use the affidavit to make things clear . . . hopefully.

The affidavit is known as a “rebuttable presumption” which means the business holding the statement isn’t bulletproof – but has a place to hide if there is lead in the air.

Capitol-ism thanks Rep. Hawley for this piece of legislation.

 
Thank you for supporting the South Dakota Chamber of Commerce and Industry!