HF 2553

5th Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to transportation; providing an alternative compensation and settlement
process for survivors of the I-35W catastrophe; appropriating money; amending
Minnesota Statutes 2006, section 3.736, subdivision 4; proposing coding for new
law in Minnesota Statutes, chapter 3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 3.736, subdivision 4, is amended to read:

Subd. 4.

Limits.

The total liability of the state and its employees acting within the
scope of their employment on any tort claim shall not exceed:

(a) $300,000 when the claim is one for death by wrongful act or omission and
$300,000 to any claimant in any other case, for claims arising before deleted text begin January deleted text end new text begin August new text end
1, deleted text begin 2008 deleted text end new text begin 2007 new text end ;

(b) $400,000 when the claim is one for death by wrongful act or omission and
$400,000 to any claimant in any other case, for claims arising on or after deleted text begin January deleted text end new text begin August new text end
1, deleted text begin 2008 deleted text end new text begin 2007 new text end , and before July 1, 2009;

(c) $500,000 when the claim is one for death by wrongful act or omission and
$500,000 to any claimant in any other case, for claims arising on or after July 1, 2009;

(d) $750,000 for any number of claims arising out of a single occurrence, for claims
arising on or after January 1, 1998, and before January 1, 2000;

(e) $1,000,000 for any number of claims arising out of a single occurrence, for
claims arising on or after January 1, 2000, and before January 1, 2008;

(f) $1,200,000 for any number of claims arising out of a single occurrence, for
claims arising on or after January 1, 2008, and before July 1, 2009; or

(g) $1,500,000 for any number of claims arising out of a single occurrence, for
claims arising on or after July 1, 2009.

If the amount awarded to or settled upon multiple claimants exceeds the applicable
limit under clause (d), (e), (f), or (g), any party may apply to the district court to apportion
to each claimant a proper share of the amount available under the applicable limit under
clause (d), (e), (f), or (g). The share apportioned to each claimant shall be in the proportion
that the ratio of the award or settlement bears to the aggregate awards and settlements for
all claims arising out of the occurrence.

The limitation imposed by this subdivision on individual claimants includes damages
claimed for loss of services or loss of support arising out of the same tort.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective retroactively from August 1, 2007.
new text end

Sec. 2.

new text begin [3.7391] PURPOSE.
new text end

new text begin Subdivision 1. new text end

new text begin Findings; I-35W bridge. new text end

new text begin The legislature finds that the collapse of
the Interstate Highway 35W bridge over the Mississippi River in Minneapolis on August
1, 2007, was a catastrophe of historic proportions. The bridge was the third-busiest in the
state, carrying over 140,000 cars per day. Its collapse killed 13 people and injured more
than 100. No other structure owned by this state has ever fallen with such devastating
physical and psychological impact on so many.
new text end

new text begin Subd. 2. new text end

new text begin Compensation process. new text end

new text begin The establishment of a compensation process
under sections 3.7391 to 3.7394 for survivors of the catastrophe furthers the public
interest by providing a remedy for survivors while avoiding the uncertainty and expense
of potentially complex and protracted litigation to resolve the issue of the liability of the
state, a municipality, or their employees for damages incurred by survivors.
new text end

new text begin Subd. 3. new text end

new text begin Not an admission of liability. new text end

new text begin These findings are not an admission
of liability of the state, a municipality, or their employees for damages caused by the
catastrophe.
new text end

Sec. 3.

new text begin [3.7392] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin The definitions in this section apply to sections 3.7391
to 3.7394.
new text end

new text begin Subd. 2. new text end

new text begin Catastrophe. new text end

new text begin "Catastrophe" means the collapse of the I-35W bridge over
the Mississippi River in Minneapolis on August 1, 2007.
new text end

new text begin Subd. 3. new text end

new text begin Damages. new text end

new text begin "Damages" means damages that are compensable under state
tort law and damages for wrongful death that are compensable under section 573.02.
Damages do not include punitive damages or attorney fees or other fees incurred by a
survivor in making a claim under this section or other law.
new text end

new text begin Subd. 4. new text end

new text begin Emergency relief fund. new text end

new text begin "Emergency relief fund" means the I-35W bridge
emergency relief fund created by the state on November 30, 2007.
new text end

new text begin Subd. 5. new text end

new text begin Municipality. new text end

new text begin "Municipality" has the meaning given in section 466.01.
new text end

new text begin Subd. 6. new text end

new text begin Panel. new text end

new text begin "Panel" means the special master panel created under section
3.7393.
new text end

new text begin Subd. 7. new text end

new text begin State. new text end

new text begin "State" has the meaning given in section 3.732.
new text end

new text begin Subd. 8. new text end

new text begin Survivor. new text end

new text begin "Survivor" means a natural person who was present on the
I-35W bridge at the time of the collapse. Survivor also includes:
new text end

new text begin (1) the parent or legal guardian of a survivor who is under 18 years of age;
new text end

new text begin (2) a legally appointed representative of a survivor; or
new text end

new text begin (3) the surviving spouse or next of kin of a deceased survivor who would be entitled
to bring an action under section 573.02.
new text end

Sec. 4.

new text begin [3.7393] CONSIDERATION AND PAYMENT OF CLAIMS.
new text end

new text begin Subdivision 1. new text end

new text begin Special master panel. new text end

new text begin The chief justice of the Supreme Court
shall establish a special master panel to consider claims, make offers of settlement, and
enter into settlement agreements with survivors on behalf of the state. The panel must
be established by June 30, 2008. The panel must consist of three attorneys. Members of
the panel must have experience in legal issues involving the settlement of tort claims and
the determination of damages. The chief justice shall designate a member of the panel
to serve as chair of the panel. The chief justice shall determine the pay and expenses to
be received by the panel.
new text end

new text begin Subd. 2. new text end

new text begin Staff. new text end

new text begin Within the limits of available appropriations, the state court
administrator, in consultation with the panel, shall hire employees or retain consultants
necessary to assist the panel in performing its duties under this section. Employees are in
the unclassified state civil service. The panel may also use consultants who are under a
contract with the state or current state employees to assist the panel in processing claims
under this section.
new text end

new text begin Subd. 3. new text end

new text begin Records. new text end

new text begin Records of the panel related to a claim filed by a survivor, an
offer of settlement, or an acceptance or rejection of an offer are not accessible to the
public except for:
new text end

new text begin (1) the name of the survivor; and
new text end

new text begin (2) the terms of any written settlement agreement between the survivor and the state.
new text end

new text begin Subd. 4. new text end

new text begin Procedure. new text end

new text begin Consistent with sections 3.7391 to 3.7394, the panel may
adopt and modify procedures, rules, and forms for considering claims, making offers of
settlement, entering into settlement agreements, and considering requests for and making
supplemental payments. The panel must allow each survivor to appear in person before
the panel or one of its members.
new text end

new text begin Subd. 5. new text end

new text begin Payment of panel expenses. new text end

new text begin The state court administrator shall forward
documentation of salaries, expenses, and administrative costs under this section to the
commissioner of finance for payment of those amounts.
new text end

new text begin Subd. 6. new text end

new text begin Immunity. new text end

new text begin Members of the panel and employees and consultants acting
under the direction of the panel are absolutely immune from civil liability for any act or
omission occurring within the scope of the performance of their duties under this section.
new text end

new text begin Subd. 7. new text end

new text begin General duties. new text end

new text begin The panel shall consider claims, make offers of settlement,
and enter into settlement agreements with survivors as provided in this section. The panel
must not consider negligence or any other theory of liability. The panel shall make offers
of settlement and supplemental payments under this section with the assumption that no
future appropriation will be available for these purposes and shall include a notice of this
provision when making settlement offers.
new text end

new text begin Subd. 8. new text end

new text begin Effect and finality of offers and settlement agreements. new text end

new text begin (a) An offer of
settlement made to a survivor under this section is considered for all purposes to be an
offer to the survivor to settle a legal claim.
new text end

new text begin (b) A determination by the panel regarding an offer of settlement or settlement
agreement or a supplemental payment is final and not subject to judicial review.
new text end

new text begin (c) The amount of damages incurred by a survivor calculated by the panel pursuant
to subdivision 10 may not be used in a subsequent court proceeding in evidence or
otherwise to determine any rights, duties, or responsibilities of the state or any other party.
new text end

new text begin Subd. 9. new text end

new text begin Deadlines. new text end

new text begin In order to be eligible to receive an offer of settlement or enter
into a settlement agreement under this section or to receive a supplemental payment
under subdivision 12, a survivor must file a claim with the panel by October 15, 2008.
Any offer of settlement must be made by February 28, 2009. A survivor must accept or
reject the offer of settlement within 45 days after receiving the offer. Failure to accept an
offer within 45 days is a rejection. A survivor who is eligible to receive a supplemental
payment under subdivision 12 may choose to wait until the survivor's supplemental
payment is calculated before accepting or rejecting an offer of settlement, provided that a
survivor may not accept an offer of settlement later than 45 days after receiving notice of
the proposed supplemental payment award. The decision to accept or reject an offer is
irrevocable. The panel must notify a survivor of the deadlines for response to an offer of
settlement as provided in this subdivision.
new text end

new text begin Subd. 10. new text end

new text begin Calculation of amount. new text end

new text begin The panel shall determine the total damages
incurred by a survivor. The amount of an offer of settlement under this section must be
calculated based on the total damages, less:
new text end

new text begin (1) payments made to the survivor up to the date the settlement offer is made from
the collateral sources referred to in section 548.36, subdivision 1;
new text end

new text begin (2) any payment made to the survivor from the emergency relief fund; and
new text end

new text begin (3) any payments made or required to be made to the survivor by a third-party
tortfeasor under the terms of a settlement or other agreement with the survivor that exists
at the time the offer is made or a final judgment in favor of the survivor concerning claims
of the survivor that relate to, involve, or arise out of the catastrophe.
new text end

new text begin Subd. 11. new text end

new text begin Offers of settlement; limit on amount. new text end

new text begin (a) The amount of an offer of
settlement or payment required by a settlement agreement must not exceed $400,000.
This limitation does not apply to a supplemental payment made under subdivision 12. An
offer of settlement must be accompanied by a notice to the survivor of the remainder of
the amount calculated under subdivision 10 that is not included in the offer because of the
limitation under this paragraph and the amount of the remainder for which a supplemental
payment may be awarded.
new text end

new text begin (b) Notwithstanding section 3.736, subdivision 4, clause (e), or section 466.04,
subdivision 1, paragraph (a), clause (5), the $1,000,000 limitation on state or municipal
liability for claims arising out of a single occurrence otherwise applicable to the
catastrophe does not apply to payments made to survivors under this section. The amount
that may be paid by the state is limited by the appropriations for this purpose.
new text end

new text begin Subd. 12. new text end

new text begin Supplemental payments. new text end

new text begin (a) For purposes of this subdivision,
"uncompensated medical expenses" means:
new text end

new text begin (1) medical expenses less payments made to a survivor from collateral sources
referred to in section 548.36, subdivision 1, that provide payments for medical expenses;
and
new text end

new text begin (2) the present value of premiums, deductibles, and coinsurance payments for
high-risk health plan coverage offered by the Minnesota Comprehensive Health
Association or by another similar health plan.
new text end

new text begin (b) A survivor is eligible for a supplemental payment if the offer of settlement
calculation for the survivor, as provided in subdivision 10, exceeds $400,000.
The supplemental payment must be calculated based solely on that portion of the
uncompensated medical expenses, loss of income, future earning capacity, or other
financial support for which compensation was not received under the offer of settlement or
settlement agreement under subdivision 11. A supplemental payment may only be made
to a survivor who has accepted an offer of settlement, entered into a settlement agreement,
and executed a release under subdivision 13. Consistent with the requirements of this
section, the panel shall establish necessary procedures and timelines for the award of
supplemental payments. A supplemental payment may be made only for the following
purposes, in the following order of priority:
new text end

new text begin (1) to pay uncompensated medical expenses in excess of those paid from the first
$400,000; and
new text end

new text begin (2) to pay for loss of income, future earning capacity, or other financial support
not included in the first $400,000.
new text end

new text begin No payment may be made to a survivor for loss of income under clause (2) unless
and until all survivors have been fully paid for all medical expenses for which they are
eligible under clause (1).
new text end

new text begin (c) If the available appropriation is insufficient to make full awards to all survivors
eligible for a supplemental payment, the panel may award the payments based on a uniform
percentage of the amount that is less than the full amount eligible for a supplemental
payment or take other steps the panel considers necessary to ensure that the available
appropriation is equitably distributed among all survivors who have requested and qualify
for a supplemental payment, subject to the order of priority under this subdivision.
new text end

new text begin Subd. 13. new text end

new text begin Release. new text end

new text begin A survivor who accepts an offer of settlement from the panel
must agree in writing and in a form developed by the panel, with the approval of the
attorney general, to release the state and every municipality of this state and their
employees from liability, including claims for damages, arising from the catastrophe and
to cooperate with the state in pursuing claims the state may have against any other party.
The release must also provide that the survivor will indemnify the state, a municipality,
and their employees from any claim of contribution or indemnity, or both, made by other
persons against the state, a municipality, and their employees and that the survivor will
satisfy any judgment obtained by the survivor in an action against other persons to the
extent of the release, if the claim or judgment relates in any way to a claim of the survivor
arising from the catastrophe. The release must provide for the subrogation interest of the
state under section 3.7394, subdivision 5. A survivor who previously has commenced an
administrative, court, or other action against the state or a municipality of the state or their
employees seeking recovery from loss resulting from the catastrophe must agree to dismiss
or otherwise withdraw the action before receiving compensation under this section.
new text end

new text begin Subd. 14. new text end

new text begin Payment. new text end

new text begin The panel shall promptly forward to the commissioner of
finance documentation of each settlement agreement that has been entered into under
this section. Except as provided in section 3.7394, subdivision 4, paragraph (b), the
commissioner of finance shall pay the agreed amount within 45 days after receiving the
documentation and in the order in which the documentation from the panel was received.
new text end

new text begin Subd. 15. new text end

new text begin Election to proceed in district court. new text end

new text begin (a) A survivor may elect not to file
a claim with the panel or not to accept an offer of settlement from the panel. A survivor
who elects not to file a claim with the panel or not to accept an offer of settlement has not
waived any legal rights that may be asserted against the state or a municipality or their
employees and may proceed with a claim in district court.
new text end

new text begin (b) If a survivor elects not to accept an offer of settlement, the state or a municipality
or their employees may not use any data provided by the survivor to the panel in a
subsequent legal proceeding. The state or a municipality or their employees may obtain
information, including data provided to the panel, through discovery or other legal
processes.
new text end

Sec. 5.

new text begin [3.7394] EFFECT OF SPECIAL COMPENSATION PROCESS;
RELATIONSHIP TO OTHER LAW.
new text end

new text begin Subdivision 1. new text end

new text begin No state liability or duty created. new text end

new text begin The establishment of the
special compensation process under section 3.7393 and the emergency relief fund, and
an offer of settlement or a settlement agreement, is not an admission of liability by the
state or a municipality or their employees and does not establish a duty of the state, a
municipality, or their employees to compensate survivors. The creation and funding
of the compensation process under sections 3.7391 to 3.7394 or an offer of settlement
or settlement agreement is not admissible in a judicial or administrative proceeding to
establish liability or a legal duty.
new text end

new text begin Subd. 2. new text end

new text begin Payments as additional compensation. new text end

new text begin Payments made under section
3.7393 or from the emergency relief fund are intended to supplement and be in addition to
any payments required to be made by a third party under law or contract.
new text end

new text begin Subd. 3. new text end

new text begin Payments from other sources. new text end

new text begin Notwithstanding any statutory or common
law or agreement to the contrary, a person required to make payments, including future
payments, to a survivor may not eliminate or reduce those payments as a result of
compensation paid to the survivor under section 3.7393 or from the emergency relief fund
or as a result of the survivor's release of claims against the state, a municipality, or their
employees under section 3.7393. The obligation of any person other than the state to make
payments to a survivor is primary as compared to any payment made or to be made under
section 3.7393 or from the emergency relief fund. The persons referenced in and covered
by this subdivision and subdivision 4 include, without limitation:
new text end

new text begin (1) reparation obligors, as defined in section 65B.43, subdivision 9, whether they are
insurers or self-insurers;
new text end

new text begin (2) health plan companies, as defined in section 62Q.01, subdivision 4, including the
Minnesota Comprehensive Health Association created under section 62E.10;
new text end

new text begin (3) insurance companies, as defined in section 60A.02, subdivision 4;
new text end

new text begin (4) self-insured pools of political subdivisions organized under section 471.617 or
471.981, including service cooperatives pools organized under section 123A.21;
new text end

new text begin (5) risk retention groups, as defined in section 60E.02, subdivision 12;
new text end

new text begin (6) joint self-insurance plans governed by chapter 60F;
new text end

new text begin (7) workers' compensation insurers and private self-insurers, as defined in section
79.01;
new text end

new text begin (8) the Minnesota Life and Health Insurance Guaranty Association governed by
chapter 61B;
new text end

new text begin (9) the Minnesota Insurance Guaranty Association governed by chapter 60C;
new text end

new text begin (10) the Minnesota Joint Underwriting Association governed by chapter 62I;
new text end

new text begin (11) all insurers providing credit life, credit accident and health, and credit
involuntary unemployment insurance under chapter 62B, but also including those
coverages written in connection with real estate mortgage loans and those provided to
borrowers at no additional cost;
new text end

new text begin (12) the Minnesota unemployment insurance program provided under chapter 268;
new text end

new text begin (13) coverage offered by the state under medical assistance, general assistance
medical care, and MinnesotaCare; and
new text end

new text begin (14) any other plan providing health, life, disability income, or long-term care
coverage.
new text end

new text begin Subd. 4. new text end

new text begin No third-party subrogation or recovery. new text end

new text begin (a) Notwithstanding any
statutory or common law or agreement to the contrary, a person who has paid benefits or
compensation to or on behalf of a survivor does not have a subrogation or other right to
recover those benefits or compensation by making a claim, or recovering from payments
made, under section 3.7393 or from the emergency relief fund.
new text end

new text begin (b) Following a settlement agreement under section 3.7393, a person who believes
that the state cannot constitutionally prohibit assertion of a subrogation claim and who is
claiming a subrogation interest against the amount to be paid by the state has 40 days after
the settlement agreement was entered into to provide notice to the state and the survivor of
the person's intent to assert that interest, during which time the commissioner of finance
must not make the payment. The subrogation claim is waived if the notice is not provided
by the deadline. If no notice is received by the deadline, the commissioner of finance shall
make the payment. If a notice of claim is received, the commissioner shall withhold the
payment until the subrogee abandons or waives the subrogation claim.
new text end

new text begin Subd. 5. new text end

new text begin Reimbursement of state; right of subrogation. new text end

new text begin (a) Notwithstanding any
statutory or common law to the contrary, the state is entitled to recover from any third
party, including an agent, contractor, or vendor retained by the state, any payments made
from the emergency relief fund or under section 3.7393 to the extent the third party caused
or contributed to the catastrophe. The state is entitled to be reimbursed regardless of
whether the survivor is fully compensated.
new text end

new text begin (b) Notwithstanding any statutory or common law to the contrary, the state is
subrogated to all potential claims against third-party tortfeasors of a survivor receiving
payment from the emergency relief fund or under section 3.7393 to the extent the claims
relate to, involve, or arise out of the catastrophe. The subrogation right of the state under
this subdivision is limited to the amount paid to the survivor from the emergency relief
fund and under section 3.7393. The rights of the state under this subdivision are in
addition to other remedies, claims, and rights relating to the catastrophe that the state may
have against other persons for the recovery of monetary or other relief.
new text end

new text begin (c) A survivor must notify the state if the survivor has been fully compensated by
third parties for damages caused by the catastrophe. A survivor is fully compensated if
payments made or required to be made to the survivor by a third-party tortfeasor under the
terms of a settlement agreement or other agreement with the survivor or a final judgment
in favor of the survivor concerning claims that relate to, involve, or arise out of the
catastrophe are equal to or greater than the total damages incurred by the survivor as
determined by the panel under section 3.7393, subdivision 10. The state is entitled to be
reimbursed by a survivor only to the extent that these payments are greater than the total
damages incurred by the survivor.
new text end

new text begin Subd. 6. new text end

new text begin Amounts not considered for purposes of limit on government tort
liability. new text end

new text begin Payments made to survivors under section 3.7393 or from the emergency relief
fund are not to be considered in calculating the $1,000,000 limit on tort claims in civil
actions against the state arising out of the catastrophe for purposes of section 3.736,
subdivision 4, clause (e), or a municipality arising out of the catastrophe for purposes of
section 466.04, subdivision 1, clause (5).
new text end

Sec. 6. new text begin APPROPRIATIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Compensation to survivors. new text end

new text begin $24,000,000 is appropriated from
the general fund to the commissioner of finance to make payments under settlement
agreements entered into by the panel under Minnesota Statutes, section 3.7393,
subdivision 11. This appropriation is available until June 30, 2010.
new text end

new text begin Subd. 2. new text end

new text begin Supplemental payments. new text end

new text begin $12,640,000 is appropriated from the general
fund to the commissioner of finance to make supplemental payments under Minnesota
Statutes, section 3.7393, subdivision 12. This appropriation is available until June 30,
2010.
new text end

new text begin Subd. 3. new text end

new text begin Administrative expenses. new text end

new text begin $750,000 is appropriated from the general
fund to the commissioner of finance to pay salaries, expenses, and administrative costs
associated with making offers of settlement and entering into settlement agreements under
Minnesota Statutes, section 3.7393. This appropriation is available until June 30, 2009.
new text end

new text begin Subd. 4. new text end

new text begin Waite House. new text end

new text begin $610,000 is appropriated from the general fund to the
commissioner of finance for a grant to Pillsbury United Communities in Minneapolis, to
allow Waite House in Minneapolis to provide services to youth and families of youth who
were on a school bus on the I-35W bridge when the bridge collapsed. Services paid for
with this appropriation must not be services that could have been funded by settlement
payments made to survivors. The commissioner must pay the first half of the grant by
June 30, 2008, and pay the second half of the grant on June 30, 2009. Pillsbury United
Communities must report to the chairs of the senate Finance and house Ways and Means
Committees by June 30, 2009, and June 30, 2010, on expenditure of money under this
subdivision. The appropriation is available until June 30, 2010.
new text end

new text begin Subd. 5. new text end

new text begin Report. new text end

new text begin The commissioner of finance must report to the legislature by
January 15 in each of 2009, 2010, and 2011, on expenditure of the appropriations in this
section. The report must list the amount of compensation paid to each survivor and must
list administrative expenses incurred by the special master panel.
new text end

Sec. 7. new text begin EFFECTIVE DATE.
new text end

new text begin This act is effective the day following final enactment.
new text end