6 U.S.C. § 442 — Litigation management

Page 225 TITLE 6—DOMESTIC SECURITY § 442 1 So in original. Probably should be ‘‘Sellers’’. 2 So in original. Probably should be ‘‘Government’’. section 553 of title 5, as may be necessary to carry out this part. (Pub. L. 107–296, title VIII, § 862, Nov. 25, 2002, 116 Stat. 2238.) Statutory Notes and Related Subsidiaries SHORT TITLE For short title of this part as the ‘‘Support Anti-ter- rorism by Fostering Effective Technologies Act of 2002’’ or the ‘‘SAFETY Act’’, see section 861 of Pub. L. 107–296, set out as a Short Title note under section 101 of this title. § 442. Litigation management (a) Federal cause of action (1) In general There shall exist a Federal cause of action for claims arising out of, relating to, or result- ing from an act of terrorism when qualified anti-terrorism technologies have been de- ployed in defense against or response or recov- ery from such act and such claims result or may result in loss to the Seller. The sub- stantive law for decision in any such action shall be derived from the law, including choice of law principles, of the State in which such acts of terrorism occurred, unless such law is inconsistent with or preempted by Federal law. Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers 1 that provide qualified anti-terrorism technology to Federal and non-Federal government 2 customers. (2) Jurisdiction Such appropriate district court of the United States shall have original and exclu- sive jurisdiction over all actions for any claim for loss of property, personal injury, or death arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller. (b) Special rules In an action brought under this section for damages the following provisions apply: (1) Punitive damages No punitive damages intended to punish or deter, exemplary damages, or other damages not intended to compensate a plaintiff for ac- tual losses may be awarded, nor shall any party be liable for interest prior to the judg- ment. (2) Noneconomic damages (A) In general Noneconomic damages may be awarded against a defendant only in an amount di- rectly proportional to the percentage of re- sponsibility of such defendant for the harm to the plaintiff, and no plaintiff may recover noneconomic damages unless the plaintiff suffered physical harm. (B) Definition For purposes of subparagraph (A), the term ‘‘noneconomic damages’’ means damages for losses for physical and emotional pain, suf- fering, inconvenience, physical impairment, mental anguish, disfigurement, loss of en- joyment of life, loss of society and compan- ionship, loss of consortium, hedonic dam- ages, injury to reputation, and any other nonpecuniary losses. (c) Collateral sources Any recovery by a plaintiff in an action under this section shall be reduced by the amount of collateral source compensation, if any, that the plaintiff has received or is entitled to receive as a result of such acts of terrorism that result or may result in loss to the Seller. (d) Government contractor defense (1) In general Should a product liability or other lawsuit be filed for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies approved by the Secretary, as provided in paragraphs (2) and (3) of this subsection, have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, there shall be a re- buttable presumption that the government contractor defense applies in such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudu- lently or with willful misconduct in submit- ting information to the Secretary during the course of the Secretary’s consideration of such technology under this subsection. This pre- sumption of the government contractor de- fense shall apply regardless of whether the claim against the Seller arises from a sale of the product to Federal Government or non- Federal Government customers. (2) Exclusive responsibility The Secretary will be exclusively respon- sible for the review and approval of anti-ter- rorism technology for purposes of establishing a government contractor defense in any prod- uct liability lawsuit for claims arising out of, relating to, or resulting from an act of ter- rorism when qualified anti-terrorism tech- nologies approved by the Secretary, as pro- vided in this paragraph and paragraph (3), have been deployed in defense against or re- sponse or recovery from such act and such claims result or may result in loss to the Sell- er. Upon the Seller’s submission to the Sec- retary for approval of anti-terrorism tech- nology, the Secretary will conduct a com- prehensive review of the design of such tech- nology and determine whether it will perform as intended, conforms to the Seller’s specifica- tions, and is safe for use as intended. The Sell- er will conduct safety and hazard analyses on such technology and will supply the Secretary with all such information. (3) Certificate For anti-terrorism technology reviewed and approved by the Secretary, the Secretary will issue a certificate of conformance to the Sell- Page 226 TITLE 6—DOMESTIC SECURITY § 443 1 So in original. er and place the anti-terrorism technology on an Approved Product List for Homeland Secu- rity. (e) Exclusion Nothing in this section shall in any way limit the ability of any person to seek any form of re- covery from any person, government, or other entity that— (1) attempts to commit, knowingly partici- pates in, aids and abets, or commits any act of terrorism, or any criminal act related to or re- sulting from such act of terrorism; or (2) participates in a conspiracy to commit any such act of terrorism or any such criminal act. (Pub. L. 107–296, title VIII, § 863, Nov. 25, 2002, 116 Stat. 2239.) § 443. Risk management (a) In general (1) Liability insurance required Any person or entity that sells or otherwise provides a qualified anti-terrorism technology to Federal and non-Federal Government cus- tomers (‘‘Seller’’) shall obtain liability insur- ance of such types and in such amounts as shall be required in accordance with this sec- tion and certified by the Secretary to satisfy otherwise compensable third-party claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act. (2) Maximum amount For the total claims related to 1 such act of terrorism, the Seller is not required to obtain liability insurance of more than the maximum amount of liability insurance reasonably available from private sources on the world market at prices and terms that will not un- reasonably distort the sales price of Seller’s anti-terrorism technologies. (3) Scope of coverage Liability insurance obtained pursuant to this subsection shall, in addition to the Seller, protect the following, to the extent of their potential liability for involvement in the man- ufacture, qualification, sale, use, or operation of qualified anti-terrorism technologies de- ployed in defense against or response or recov- ery from an act of terrorism: (A) Contractors, subcontractors, suppliers, vendors and customers of the Seller. (B) Contractors, subcontractors, suppliers, and vendors of the customer. (4) Third party claims Such liability insurance under this section shall provide coverage against third party claims arising out of, relating to, or resulting from the sale or use of anti-terrorism tech- nologies. (b) Reciprocal waiver of claims The Seller shall enter into a reciprocal waiver of claims with its contractors, subcontractors, suppliers, vendors and customers, and contrac- tors and subcontractors of the customers, in- volved in the manufacture, sale, use or oper- ation of qualified anti-terrorism technologies, under which each party to the waiver agrees to be responsible for losses, including business interruption losses, that it sustains, or for losses sustained by its own employees resulting from an activity resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act. (c) Extent of liability Notwithstanding any other provision of law, liability for all claims against a Seller arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism tech- nologies have been deployed in defense against or response or recovery from such act and such claims result or may result in loss to the Seller, whether for compensatory or punitive damages or for contribution or indemnity, shall not be in an amount greater than the limits of liability insurance coverage required to be maintained by the Seller under this section. (Pub. L. 107–296, title VIII, § 864, Nov. 25, 2002, 116 Stat. 2240.) § 444. Definitions For purposes of this part, the following defini- tions apply: (1) Qualified anti-terrorism technology For purposes of this part, the term ‘‘quali- fied anti-terrorism technology’’ means any product, equipment, service (including support services), device, or technology (including in- formation technology) designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deter- ring acts of terrorism or limiting the harm such acts might otherwise cause, that is des- ignated as such by the Secretary. (2) Act of terrorism (A) The term ‘‘act of terrorism’’ means any act that the Secretary determines meets the requirements under subparagraph (B), as such requirements are further defined and specified by the Secretary. (B) REQUIREMENTS.—An act meets the re- quirements of this subparagraph if the act— (i) is unlawful; (ii) causes harm to a person, property, or entity, in the United States, or in the case of a domestic United States air carrier or a United States-flag vessel (or a vessel based principally in the United States on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), in or outside the United States; and (iii) uses or attempts to use instrumental- ities, weapons or other methods designed or intended to cause mass destruction, injury or other loss to citizens or institutions of the United States. (3) Insurance carrier The term ‘‘insurance carrier’’ means any corporation, association, society, order, firm, company, mutual,1 partnership, individual ag-