78B-3-414 - Periodic payment of future damages in malpractice actions.
78B-3-414. Periodic payment of future damages in malpractice actions.
(1) In any malpractice action against a health care provider, as defined in Section78B-3-403, the court shall, at the request of any party, order that future damages which equal orexceed $100,000, less amounts payable for attorney fees and other costs which are due at thetime of judgment, shall be paid by periodic payments rather than by a lump sum payment.
(2) In rendering a judgment which orders the payment of future damages by periodicpayments, the court shall order periodic payments to provide a fair correlation between thesustaining of losses and the payment of damages.
(a) Lost future earnings shall be paid over the judgment creditor's work life expectancy.
(b) The court shall also order, when appropriate, that periodic payments increase at afixed rate, equal to the rate of inflation which the finder of fact used to determine the amount offuture damages, or as measured by the most recent Consumer Price Index applicable to Utah forall goods and services.
(c) The present cash value of all periodic payments shall equal the fact finder's award offuture damages, less any amount paid for attorney fees and costs.
(d) The present cash value of periodic payments shall be determined by discounting thetotal amount of periodic payments projected over the judgment creditor's life expectancy, by therate of interest which the finder of fact used to reduce the amount of future damages to presentvalue, or the rate of interest available at the time of trial on one year U.S. Government TreasuryBills.
(3) Before periodic payments of future damages may be ordered, the court shall require ajudgment debtor to post security which assures full payment of those damages. Security forpayment of a judgment of periodic payments may be in one or more of the following forms:
(a) a bond executed by a qualified insurer;
(b) an annuity contract executed by a qualified insurer;
(c) evidence of applicable and collectable liability insurance with one or more qualifiedinsurers;
(d) an agreement by one or more qualified insurers to guarantee payment of thejudgment; or
(e) any other form of security approved by the court.
(4) Security which complies with this section may also serve as a supersedeas bond,where one is required.
(5) A judgment which orders payment of future damages by periodic payments shallspecify the recipient or recipients of the payments, the dollar amount of the payments, theinterval between payments, and the number of payments or the period of time over whichpayments shall be made. Those payments may only be modified in the event of the death of thejudgment creditor.
(6) If the court finds that the judgment debtor, or the assignee of his obligation to makeperiodic payments, has failed to make periodic payments as ordered by the court, it shall, inaddition to the required periodic payments, order the judgment debtor or his assignee to pay thejudgment creditor all damages caused by the failure to make payments, including court costs andattorney fees.
(7) The obligation to make periodic payments for all future damages, other than damagesfor loss of future earnings, shall cease upon the death of the judgment creditor. Damagesawarded for loss of future earnings may not be reduced or payments terminated by reason of the
death of the judgment creditor, but shall be paid to persons to whom the judgment creditor oweda duty of support, as provided by law, immediately prior to his death. In that case the courtwhich rendered the original judgment may, upon petition of any party in interest, modify thejudgment to award and apportion the unpaid future damages in accordance with this section.
(8) If security is posted in accordance with Subsection (3), and approved by a finaljudgment entered under this section, the judgment is considered to be satisfied, and the judgmentdebtor on whose behalf the security is posted shall be discharged.
Renumbered and Amended by Chapter 3, 2008 General Session