****
68th Legislature 2023 SB 216.1
1 SENATE BILL NO. 216
2 INTRODUCED BY S. FITZPATRICK
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS RELATING TO CIVIL LAWSUITS INVOLVING
5 PRODUCTS; REVISING LAWS PERTAINING TO STRICT LIABILITY OR CERTAIN BREACH OF
6 WARRANTY LAWS TO ALLOW A DEFENDANT TO ASSERT A DEFENSE THAT THE DAMAGES WERE
7 CAUSED BY A PERSON WITH WHOM THE CLAIMANT HAS SETTLED OR RELEASED FROM LIABILITY;
8 REVISING PRODUCT LIABILITY LAWS TO ALLOW CERTAIN DEFENSES; PROVIDING DEFINITIONS;
9 ALLOWING CONTRIBUTORY NEGLIGENCE AS A DEFENSE IN A PRODUCT LIABILITY LAWSUIT;
10 ALLOWING THE SELLER OF A PRODUCT TO ASSERT CERTAIN DEFENSES; PROVIDING STANDARDS
11 OF PROOF FOR CLAIMANTS IN CERTAIN PRODUCT ACTIONS; AMENDING SECTIONS 27-1-703 AND 27-
12 1-719, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.”
13
14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
15
16 Section 1. Section 27-1-703, MCA, is amended to read:
17 "27-1-703. (Temporary) Multiple defendants -- determination of liability. (1) Except as provided in
18 subsections (2) and (3), if the negligence of a party to an action is an issue, each party against whom recovery
19 may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the
20 right of contribution from any other person whose negligence may have contributed as a proximate cause to the
21 injury complained of.
22 (2) A party whose negligence is determined to be 50% or less of the combined negligence of all
23 persons described in subsection (4) is severally liable only and is responsible only for the percentage of
24 negligence attributable to that party, except as provided in subsection (3). The remaining parties are jointly and
25 severally liable for the total less the percentage attributable to the claimant and to any person with whom the
26 claimant has settled or whom the plaintiff has released from liability.
27 (3) A party may be jointly liable for all damages caused by the negligence of another if both acted
28 in concert in contributing to the claimant's damages or if one party acted as an agent of the other.
-1- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 (4) On motion of a party against whom a claim is asserted for negligence resulting in death or
2 injury to person or property, any other person whose negligence may have contributed as a proximate cause to
3 the injury complained of may be joined as an additional party to the action. For purposes of determining the
4 percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of
5 fact shall consider the negligence of the claimant, injured person, defendants, and third-party defendants. The
6 liability of persons released from liability by the claimant and persons with whom the claimant has settled must
7 also be considered by the trier of fact, as provided in subsection (6). The trier of fact shall apportion the
8 percentage of negligence of all persons listed in this subsection. Nothing contained in this section makes any
9 party indispensable pursuant to Rule 19, Montana Rules of Civil Procedure.
10 (5) If for any reason all or part of the contribution from a party liable for contribution cannot be
11 obtained, each of the other parties shall contribute a proportional part of the unpaid portion of the
12 noncontributing party's share and may obtain judgment in a pending or subsequent action for contribution from
13 the noncontributing party. A party found to be 50% or less negligent for the injury complained of is liable for
14 contribution under this section only up to the percentage of negligence attributed to that party.
15 (6) (a) In an action based on negligence, strict liability as provided in 27-1-719(1), or on a breach
16 of warranty, including but not limited to the provisions of 30-2-314, 30-2-315, or 30-11-215, a defendant may
17 assert as a defense that the damages of the claimant were caused in full or in part by a person with whom the
18 claimant has settled or whom the claimant has released from liability.
19 (b) In determining the percentage of liability attributable to persons who are parties to the action,
20 the trier of fact shall consider the negligence of persons released from liability by the claimant or with whom the
21 claimant has settled. A finding of negligence of a person with whom the claimant has settled or who has been
22 released from liability by the claimant is not a presumptive or conclusive finding as to that person for purposes
23 of a prior or subsequent action involving that person.
24 (c) Except for persons who have settled with or have been released by the claimant, comparison
25 of fault with any of the following persons is prohibited:
26 (i) a person who is immune from liability to the claimant;
27 (ii) a person who is not subject to the jurisdiction of the court; or
28 (iii) any other person who could have been, but was not, named as a third party.
-2- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 (d) A release of settlement entered into by a claimant constitutes an assumption of the liability, if
2 any, allocated to the settled or released person. The claim of the releasing or settling claimant against other
3 persons is reduced by the percentage of the released or settled person's equitable share of the obligation, as
4 determined under subsection (4).
5 (e) A defendant who alleges that a person released by the claimant or with whom the claimant has
6 settled is at fault in the matter has the burden of proving:
7 (i) the negligence of the person whom the claimant has released or with whom the claimant has
8 settled;
9 (ii) any standard of care applicable to the person whom the claimant released or with whom the
10 claimant settled; and
11 (iii) that the negligence of the person whom the claimant has released or with whom the claimant
12 has settled was a contributing cause under the law applicable to the matter.
13 (f) A defendant alleging that a settled or released person is at fault in the matter shall affirmatively
14 plead the settlement or release as a defense in the answer. A defendant who gains actual knowledge of a
15 settled or released person after the filing of that defendant's answer may plead the defense of settlement or
16 release with reasonable promptness, as determined by the trial court, in a manner that is consistent with:
17 (i) giving the defendant a reasonable opportunity to discover the existence of a settled or released
18 person;
19 (ii) giving the settled or released person an opportunity to intervene in the action to defend against
20 claims affirmatively asserted, including the opportunity to be represented by an attorney, present a defense,
21 participate in discovery, cross-examine witnesses, and appear as a witness of either party; and
22 (iii) giving the claimant a reasonable opportunity to defend against the defense.
23 (g) If a defendant alleges that a settled or released person is at fault in the matter, the defendant
24 shall notify each person who the defendant alleges caused the claimant's injuries, in whole or in part.
25 Notification must be made by mailing the defendant's answer to each settled or released person at the person's
26 last-known address by certified mail, return receipt requested. (Terminates on occurrence of contingency--sec.
27 11(2), Ch. 429, L. 1997.)
28 27-1-703. (Effective on occurrence of contingency) Multiple defendants -- determination of
-3- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 liability. Each party against whom recovery may be allowed is jointly and severally liable for the amount that
2 may be awarded to the claimant but has the right of contribution from any other person whose negligence may
3 have contributed as a proximate cause to the injury complained of."
4
5 Section 2. Section 27-1-719, MCA, is amended to read:
6 "27-1-719. (Temporary) Liability of seller of product for physical harm to user or consumer. (1)
7 As used in this section, "seller" means a manufacturer, wholesaler, or retailer.
8 (2)(1) A person who sells a product in a defective condition that is unreasonably dangerous to a user
9 or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the
10 ultimate user or consumer or to the user's or consumer's property if:
11 (a) the seller is engaged in the business of selling the product; and
12 (b) the product is expected to and does reach the user or consumer without substantial change in
13 the condition in which it is sold.
14 (3)(2) The provisions of subsection (2) (1) apply even if:
15 (a) the seller exercised all possible care in the preparation and sale of the product; and
16 (b) the user or consumer did not buy the product from or enter into any contractual relation with the
17 seller.
18 (4)(3) (a) Subsection (2) (1) does not apply to product liability claims brought for damages caused in
19 part by covid-19 as defined in 27-1-1601, which are governed by 27-1-1602.
20 (b) Subsection (2)(1)(b) does not apply to a claim for relief based upon on improper product
21 design.
22 (5)(4) Except as provided in this subsection, contributory negligence is not a defense to the liability of
23 a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively
24 manufactured or defectively designed product. A seller named as a defendant in an action based on strict
25 liability in tort for damages to person or property caused by a defectively designed or defectively manufactured
26 product may assert the following affirmative defenses against the claimant, user, or consumer, the legal
27 representative of the claimant, user, or consumer, or any person claiming damages by reason of injury to the
28 user or consumer:
-4- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 (a) The the claimant, user, or consumer of the product discovered the defect or the defect was
2 open and obvious and the claimant, user, or consumer unreasonably made use of the product and was injured
3 by it.;
4 (b) The the product was unreasonably misused by the user or consumer and the misuse caused or
5 contributed to the injury. Unreasonable misuse of the product includes use of the product in a manner that
6 contravenes an express warning or instruction appearing on, accompanying, or attached to the product or on its
7 original container or wrapping, if the user or consumer knew or with the exercise of reasonable and diligent care
8 should have known of the instructions or warnings.
9 (c) the claimant's contributory negligence or fault, regardless of the legal basis;
10 (d) the negligence or fault, regardless of the legal basis, of any party to a product liability action;
11 (e) the negligence or fault, regardless of the legal basis, of any person or entity with whom the
12 claimant has settled or whom the claimant has released from liability as provided in 27-1-703(6).
13 (6)(5) The affirmative defenses referred to in subsection (5) (4) mitigate or bar recovery and must be
14 applied in accordance with the principles of comparative negligence set forth in 27-1-702.
15 (6) A seller named as a defendant in a product liability action may assert the following affirmative
16 defenses against the claimant, user, or consumer, the legal representative of the claimant, user, or consumer,
17 or any person claiming damages by reason of injury to the user or consumer:
18 (a) the plans or design for the product at issue or the methods and techniques of manufacturing,
19 inspecting, testing, and labeling the product could not have been made safer by the adoption of a reasonable
20 alternative that was available at the time the product was first sold to a user or consumer;
21 (b) the product liability action was not commenced within 10 years of the date on which the product
22 was first sold or leased to any person or otherwise placed into the stream of commerce, unless:
23 (i) the seller against whom the product liability action is brought knowingly concealed a defective
24 or unsafe condition in the product that is the subject of the action or has knowingly concealed negligence in the
25 product's construction, manufacture, or assembly, and if the matter so concealed directly resulted in the
26 economic loss, personal injury, property damage, or wrongful death for which the action is brought;
27 (ii) the product is subject to a government-mandated product recall related to consumer safety,
28 provided that the action must be limited to the extent that the subject of the product liability action and the
-5- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 underlying reason for the recall are the same;
2 (iii) the product liability action is brought with respect to a product that is real property or an
3 improvement to real property;
4 (iv) the product liability action alleges that the product has a defective condition that is
5 unreasonably dangerous because it causes a respiratory or malignant disease with a latency of more than 10
6 years, and the seller against whom the product liability action is brought is also the manufacturer of the product
7 claimed to be defective; or
8 (v) the seller or the person who first placed the product that is the subject of the product liability
9 action in the stream of commerce has stated in a written warranty or an advertisement to the public that the
10 product has an expected useful life for a period certain that is greater than 10 years, in which event any product
11 liability action that is otherwise within this section and is not barred by any other provision of law must be
12 brought no later than 2 years following the expiration of that period certain;
13 (c) at the time the product was first sold or leased to any person or otherwise placed into the
14 stream of commerce:
15 (i) the product at issue's formula, design, labeling, warning, or instructions complied with
16 mandatory safety statutes, standards, or regulations adopted by the federal or state government or an agency
17 of the federal or state government that were applicable to the product at issue at the time of its manufacture
18 and that addressed the product risk that allegedly caused harm;
19 (ii) the product at issue was subject to premarket licensing or approval by the federal or state
20 government or an agency of the federal or state government, the seller complied with all of the government's or
21 agency's procedures and requirements pertaining to premarketing licensing or approval, and the product was
22 approved or licensed for sale by the government or agency; or
23 (iii) the product at issue:
24 (A) was a drug or medical device;
25 (B) was approved for safety and efficacy by the United States food and drug administration;
26 (C) was in compliance, in addition to its labeling, with the United States food and drug
27 administration's approval at the time the product at issue left the control of the seller; and
28 (D) was not sold in the United States after the effective date of any order of the United States food
-6- Authorized Print Version – SB 216
****
68th Legislature 2023 SB 216.1
1 and drug administration to remove the product at issue from the market or to withdraw its approval.
2 (7) A product liability action may not be commenced or maintained against a seller who is not also
3 a manufacturer unless the claimant proves by a preponderance of evidence that:
4 (a) the seller actually exercised substantial control over some aspect of the manufacture,
5 construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, warnings, and
6 instructions of the product that was a proximate cause of the damages for which the claimant seeks recovery;
7 (b) the seller altered, modified, or installed the product after it left the manufacturer's possession,
8 and