A BILL TO BE ENTITLED
AN ACT TO PROVIDE THE MUNICIPAL TORT CLAIMS ACT.
The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 160A of the General Statutes is amended by adding a new Article to read:
"Article 29.
"Municipal Tort Claims Act.
"§ 160A‑681.  Definitions.
As used in this Article, "municipal corporation" has the same meaning as "city" in G.S. 160A‑1, and thus also includes incorporated towns and villages.
"§ 160A‑682.  Industrial Commission constituted a court to hear and determine claims; damages; liability insurance in lieu of obligation under Article.
(a)	The North Carolina Industrial Commission is constituted a court for the purpose of hearing and passing upon tort claims against any municipal corporation of this State. The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant, or agent of the municipal corporation while acting within the scope of his office, employment, service, agency, or authority, under circumstances where the municipal corporation, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. If the Commission finds that there was negligence on the part of an officer, employee, involuntary servant, or agent of the municipal corporation while acting within the scope of his office, employment, service, agency, or authority that was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages that the claimant is entitled to be paid, including medical and other expenses, and by appropriate order direct the payment of damages as provided in this Article, but in no event shall the amount of damages awarded exceed the amounts authorized in G.S. 160A‑694 cumulatively to all claimants on account of injury and damage to any one person arising out of a single occurrence.
(b)	If a municipal corporation, otherwise authorized to purchase insurance, purchases a policy of commercial liability insurance providing coverage in an amount at least equal to the limits of this Article, such insurance coverage shall be in lieu of the municipal corporation's obligation for payment under this Article.
"§ 160A‑683.  Costs.
(a)	The Industrial Commission may by order tax the costs against the loser in the same manner as costs are taxed by the superior court in civil actions. When a municipal corporation appeals the decision rendered by the hearing commissioner to the full Commission, the municipal corporation shall furnish a copy of the transcript of the hearing to the appellee without cost therefor. The municipal corporation may pay the costs as may pay taxed against it. When costs are not paid by a party from whom they are due, the Industrial Commission shall issue an execution for the costs and attach a bill of costs to each execution. The Sheriff shall levy upon the execution as provided in Chapter 6 of the General Statutes in civil actions.
(b)	The Industrial Commission shall charge a filing fee for each affidavit initiating a claim filed under this Article in an amount equal to the filing fee charged for civil actions in the Superior Court Division of the General Court of Justice. No filing fee shall be required of indigent persons, provided each claim by an indigent complies with all statutory and administrative requirements applicable to the filing of civil actions by indigents in the Superior Court Division of the General Court of Justice.
"§ 160A‑684.  Counterclaims by municipal corporation.
The filing of a claim under this Article shall constitute consent by the plaintiff to the jurisdiction of the Industrial Commission to hear and determine any counterclaim of the maximum amount authorized for a claim in this Article or less that may be filed on behalf of a municipal corporation. A final award of the Industrial Commission awarding damages on a counterclaim shall be filed with the clerk of the superior court of the county where the case was heard. These awards shall be docketed and shall be enforceable in the same manner as judgments of the General Court of Justice. Notwithstanding the provisions of Rule 12 of the Rules of Civil Procedure, nothing in this section shall require the filing of a counterclaim. 
"§ 160A‑685.  Notice of determination of claim; appeal to full Commission.
Upon determination of said claim the Commission shall notify all parties concerned in writing of its decision and either party shall have 15 days after receipt of such notice within which to file notice of appeal with the Industrial Commission. Such appeal, when so taken, shall be heard by the Industrial Commission, sitting as a full Commission, on the basis of the record in the matter and upon oral argument of the parties, and said full Commission may amend, set aside, or strike out the decision of the hearing commissioner and may issue its own findings of fact and conclusions of law. Upon determination of said claim by the Industrial Commission, sitting as a full Commission, the Commission shall notify all parties concerned in writing of its decision. Such determination by the Industrial Commission, sitting as a full Commission, upon claims or counterclaims in an amount of five hundred dollars ($500.00) or less per claim shall be final as to all parties and no appeal shall lie therefrom.
"§ 160A‑686. Appeals to Court of Appeals. 
(a)	Either the claimant or the municipal corporation may, within 30 days after receipt of the decision and order of the full Commission, to be sent by registered or certified mail, but not thereafter, appeal from the decision of the Commission to the Court of Appeals. Such appeal shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. The appellant shall cause to be prepared a statement of the case as required by the rules of the Court of Appeals. A copy of this statement shall be served on the respondent within 45 days from the entry of the appeal taken; within 20 days after such service, the appellee shall return the copy with his approval or specified amendments endorsed or attached; if the statement is approved by the appellee, it shall be filed with the clerk of the Court of Appeals as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved. The chairman of the Industrial Commission shall have the power, in the exercise of his discretion, to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counterstatement of the case.
(b)	If the case on appeal is returned by the appellee with objections as prescribed, or if a counterstatement of the case is served on appellant, the appellant shall immediately request the chairman of the Industrial Commission to fix a time and place for settling the case before him. If the appellant delays longer than 15 days after the appellee serves his counterstatement or exceptions to request the chairman to settle the case on appeal, then the exceptions filed by the appellee shall be allowed; or the counterstatement served by him shall constitute the case on appeal; but the time may be extended by agreement of counsel.
(c)	The chairman shall forthwith notify the attorneys of the parties to appear before the chairman for that purpose at a certain time and place, which time shall not be more than 20 days from the receipt of the request. At the time and place stated, the chairman of the Industrial Commission or the chairman's designee shall settle and sign the case and deliver a copy to the attorneys of each party. The appellant shall within five days thereafter file it with the clerk of the Court of Appeals, and if he fails to do so, the appellee may file his copy.
(d)	No appeal bond or supersedeas bond shall be required of a municipal corporation.
"§ 160A‑687.  Appeal to Court of Appeals to act as supersedeas.
The appeal from the decision of the Industrial Commission to the Court of Appeals shall act as a supersedeas, and the municipal corporation shall not be required to make payment of any judgment until the questions at issue therein shall have been finally determined as provided in this Article. 
"§ 160A‑688.  Settlement of claims. 
(a)	Any claims except claims of minors pending or hereafter filed against a municipal corporation may be settled upon agreement between the claimant and the municipal corporation for an amount not in excess of twenty‑five thousand dollars ($25,000), without the approval of the Industrial Commission. The municipal corporation may also make settlements by agreement for claims in excess of twenty‑five thousand dollars ($25,000) and claims of infants or persons non sui juris, provided such claims have been subject to review and approval by the Industrial Commission.
(b)	In settlements under twenty‑five thousand dollars ($25,000), agreed upon between the parties, the filing of an affidavit as set forth in this Article shall not be required.
"§ 160A‑689.  Powers of Industrial Commission; deputies.
The members of the Industrial Commission, or a deputy thereof, shall have power to issue subpoenas, administer oaths, conduct hearings, take evidence, enter orders, opinions, and awards based thereon, punish for contempt, and issue writs of habeas corpus ad testificandum pursuant to G.S. 97‑101.1. The Industrial Commission is authorized to appoint deputies and clerical assistants to carry out the purpose and intent of this Article, and such deputy or deputies are hereby vested with the same power and authority to hear and determine tort claims against a municipal corporation as is by this Article vested in the members of the Industrial Commission. The Commission may order parties to participate in mediation, under rules substantially similar to those approved by the Supreme Court for use in the Superior Court division, except the Commission shall determine the manner in which payment of the costs of the mediated settlement conference is assessed. 
"§ 160A‑690.  Affidavit of claimant; docketing; venue; notice of hearing; answer, demurrer, or other pleading to affidavit. 
(a)	In all claims which may hereafter be filed against a municipal corporation, the claimant or the person in whose behalf the claim is made shall file with the Industrial Commission an affidavit in duplicate, setting forth the following information:
(1)	The name of the claimant;
(2)	The name of the municipal corporation against which the claim is asserted, and the name of the municipal corporation employee upon whose alleged negligence the claim is based;
(3)	The amount of damages sought to be recovered;
(4)	The time and place where the injury occurred;
(5)	A brief statement of the facts and circumstances surrounding the injury and giving rise to the claim. 
(b)	Upon receipt of such affidavit in duplicate, the Industrial Commission shall enter the case upon its hearing docket and shall hear and determine the matter in the county where the injury occurred unless the parties agree or the Industrial Commission directs that the case may be heard in some other county. All parties shall be given reasonable notice of the date when and the place where the claim will be heard.
(c)	Immediately upon docketing the case, the Industrial Commission shall forward one copy of plaintiff's affidavit to the clerk of the municipal corporation.
(d)	The municipal corporation against whom the claim is asserted shall file answer, demurrer, or other pleading to the affidavit within 30 days after receipt of copy of same setting forth any defense it proposes to make in the hearing or trial, and no defense may be asserted in the hearing or trial unless it is alleged in such answer, except such defenses as are not required by the Rules of Civil Procedure or other laws to be alleged. 
"§ 160A‑691.  Subpoenas. 
Subpoenas for any purpose authorized by G.S. 1A‑1, Rule 45 may be issued by an Attorney of Record for either party in all proceedings under this Article and served by the means specified in the Rules of Civil Procedure or served by registered or certified mail, and service shall be proved by filing of the return receipt. 
"§ 160A‑692.  Limitation on claims.
All claims against any and all municipal corporations shall henceforth be forever barred unless a claim be filed with the Industrial Commission within three years after the accrual of such claim, or if death results from the accident, the claim for wrongful death shall be forever barred unless a claim be filed by the personal representative of the deceased with the Industrial Commission within two years after such death. 
"§ 160A‑693.  Contributory negligence a matter of defense; burden of proof.
Contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted shall be deemed to be a matter of defense on the part of the municipal corporation against which the claim is asserted, and such municipal corporation shall have the burden of proving that the claimant or the person in whose behalf the claim is asserted was guilty of contributory negligence. 
"§ 160A‑694.  Limitation on payments by the municipal corporation. 
The maximum amount that the municipal corporation may pay cumulatively to all claimants on account of injury and damage to any one person arising out of any one occurrence shall be five hundred thousand dollars ($500,000), less any commercial liability insurance purchased by the municipal corporation and applicable to the claim. 
"§ 160A‑695.  Rules and regulations of Industrial Commission; destruction of records. 
The Industrial Commission may adopt such rules and regulations as may, in the discretion of the Commission, be necessary to carry out the purpose and intent of this Article. The North Carolina Rules of Civil Procedure and Rules of Evidence, insofar as they are not in conflict with the provisions of this Article, shall be followed in proceedings under this Article. When any case or claim under this Article has been closed by proper order or award, all records concerning such case or claim may, after five years, in the discretion of the Industrial Commission with and by the authorization of the Department of Cultural Resources, be destroyed by burning or otherwise; provided, that no record pertaining to a case or claim of a minor shall be destroyed until the expiration of three years after such minor attains the age of 18 years."
SECTION 2.  This act becomes effective with respect to causes of action accruing on or after July 1, 2005.