CSHB 158(FIN) AM(CT RLS PFLD)(EFD FLD): "An Act relating to civil actions; amending Alaska Rule of Civil Procedure 95."
00CS FOR HOUSE BILL NO. 158(FIN) am(ct rls pfld)(efd fld) 01 "An Act relating to civil actions; amending Alaska Rule of Civil Procedure 95." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. PURPOSE. It is the purpose of this Act to 04 (1) enact further reforms that create a more equitable distribution of the cost 05 and risk of injury; 06 (2) reduce costs associated with the civil justice system, while ensuring that 07 adequate and appropriate compensation for persons injured through the fault of others is 08 available; 09 (3) help match losses with compensation by helping to 10 (A) ensure that money paid to an injured person is available when 11 anticipated expenses or losses occur; 12 (B) ensure that a claimant with substantial injury requiring long-term 13 treatment will have money available for future medical care; 14 (C) reduce reparation system costs by eliminating those portions of
01 awards that are not needed to compensate the claimant; 02 (D) eliminate duplicate recoveries; 03 (E) reduce the costs of litigation; 04 (F) establish appropriate thresholds for a damage award in order to 05 allow predictability of liability exposure; and 06 (G) reduce the ultimate costs to the state and to local governments of 07 providing medical services to those who cannot otherwise afford those services; 08 (4) ensure that in actions involving the fault of more than one person, the fault 09 of each claimant, defendant, third-party defendant, person who has been released from 10 liability, or other person responsible for the damages be determined and awards be allocated 11 in accordance with their fault; 12 (5) reduce the amount of litigation proceeding to trial by modifying the 13 allocation of attorney fees and court costs based on the offer of judgment and the final court 14 award thereby providing a financial incentive to both parties to settle the dispute; 15 (6) enact a statute of repose that meets the tests set out in Turner Construction 16 Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988); 17 (7) clarify the circumstances in which hospitals are held directly liable for the 18 actions of health care providers not employed by the hospital; 19 (8) encourage health care providers to provide quality medical care in all areas 20 of this state at a cost that is affordable; 21 (9) stabilize the rapidly escalating costs of health care by curtailing the rapid 22 escalation in malpractice premiums and thereby make broader based health care available to 23 more residents of the state; 24 (10) require that one-half of punitive damages awarded by a court be deposited 25 into the general fund for the benefit of the public welfare and to deter future harm to the 26 public. 27 * Sec. 2. AS 09.10.055 is repealed and reenacted to read: 28 Sec. 09.10.055. STATUTE OF REPOSE OF EIGHT YEARS. (a) 29 Notwithstanding the disability of minority described under AS 09.10.140(a), a person 30 may not bring an action for personal injury, death, or property damage unless 31 commenced within eight years of the earlier of the date of
01 (1) substantial completion of the construction alleged to have caused 02 the personal injury, death, or property damage; however, the limitation of this 03 paragraph does not apply to a claim resulting from an intentional or reckless disregard 04 of specific project design plans and specifications or building codes; or 05 (2) the last act alleged to have caused the personal injury, death, or 06 property damage. 07 (b) This section does not apply if 08 (1) the personal injury, death, or property damage resulted from 09 (A) exposure to a hazardous substance; in this subparagraph, 10 "hazardous substance" means an element or compound that, when it enters into 11 the air or on the surface or subsurface land or water of the state, presents an 12 imminent and substantial danger to public or individual health and welfare; 13 (B) an intentional act or gross negligence; 14 (C) fraud or fraudulent misrepresentation; 15 (D) breach of an express warranty or guarantee; or 16 (E) a defective product; in this subparagraph, "product" means 17 an object that has intrinsic value, is capable of delivery as an assembled whole 18 or as a component part, and is introduced into trade or commerce; "product" 19 includes an element or compound that if ingested by humans or if humans are 20 exposed to, or are in contact with the element compound or product, poses a 21 threat to human health; 22 (2) facts that would give notice of a potential cause of action are 23 intentionally concealed; or 24 (3) a shorter period of time for bringing the action is imposed under 25 another provision of law. 26 (4) a longer period of time for bringing the action was provided under 27 a contract. 28 (c) The limitation imposed under (a) of this section is tolled during any period 29 in which there exists the undiscovered presence of a foreign body, that has no 30 therapeutic or diagnostic purpose or effect, in the body of the injured person and the 31 action is based on the presence of the foreign body.
01 (d) In this section, "substantial completion" means the date when construction 02 is sufficiently completed to allow the owner or a person authorized by the owner to 03 occupy the improvement or to use the improvement in the manner for which it was 04 intended. 05 * Sec. 3. AS 09.10.070 is amended to read: 06 Sec. 09.10.070. ACTIONS FOR CERTAIN TORTS AND CERTAIN 07 STATUTORY LIABILITIES TO BE BROUGHT IN TWO YEARS. Except as 08 otherwise provided by law, a [A] person may not bring an action (1) for libel, 09 slander, assault, battery, seduction, or false imprisonment [, OR FOR ANY INJURY 10 TO THE PERSON OR RIGHTS OF ANOTHER NOT ARISING ON CONTRACT 11 AND NOT SPECIFICALLY PROVIDED OTHERWISE]; (2) upon a statute for a 12 forfeiture or penalty to the state; or (3) upon a liability created by statute, other than 13 a penalty or forfeiture; unless the action is commenced within two years. 14 * Sec. 4. AS 09.10 is amended by adding a new section to read: 15 Sec. 09.10.075. LIMITATION ON ACTIONS INVOLVING INJURY TO 16 PERSON OR PROPERTY. (a) Notwithstanding the disability of minority described 17 under AS 09.10.140(a), a person may not bring an action for personal injury, death, 18 property damage, or injury to the rights of another not arising on contract, unless the 19 action is brought within two years of the accrual of the action. 20 (b) This section does not apply if a shorter period of time for bringing the 21 action is imposed under another provision of law. 22 * Sec. 5. AS 09.17.010 is repealed and reenacted to read: 23 Sec. 09.17.010. NONECONOMIC DAMAGES. (a) In an action to recover 24 damages for personal injury or wrongful death, all damage claims for noneconomic 25 losses shall be limited to compensation for pain, suffering, inconvenience, physical 26 impairment, disfigurement, loss of enjoyment of life, loss of consortium, and other 27 nonpecuniary damage. 28 (b) Except as provided under (c) of this section, the amount of damages 29 awarded by a court or a jury under (a) of this section for all claims of a party to the 30 action, including a loss of consortium claim, arising out of a single injury or death may 31 not exceed $300,000.
01 (c) In an action for personal injury, the damages awarded by a court or jury 02 that are described under (b) of this section may not exceed $500,000 when the 03 claimant, as a result of the injury, 04 (A) is a hemiplegic, paraplegic, or quadriplegic and has 05 permanent functional loss of one or more limbs resulting from injury to the 06 spine or spinal cord; 07 (B) has lost both arms or both legs or an arm and a leg; 08 (C) has permanently impaired cognitive capacity, is incapable 09 of making independent, responsible decisions, and is permanently incapable of 10 independently performing the activities of normal, daily living; 11 (D) is both deaf and blind; or 12 (E) has third degree burns over one half or more of the 13 claimant's body. 14 (d) The limit under (b) or (c) of this section shall adjust annually to reflect the 15 difference in the Consumer Price Index for all urban consumers for all items for the 16 Anchorage metropolitan area compiled by the Bureau of Labor Statistics, United States 17 Department of Labor, for the preceding calendar year. The index for the first half of 18 1995 is the reference base index. 19 (e) The limit under (b) or (c) of this section does not apply to noneconomic 20 damages awarded by a court or jury against a person who, as proven by a 21 preponderance of the evidence, was attempting to commit or committing a felony, if 22 the person bringing the action was a victim of that offense and the offense 23 substantially contributed to the injury or death. In this subsection, "victim" has the 24 meaning given in AS 12.55.185. 25 (f) Multiple injuries sustained as a result of a single incident shall be treated 26 as a single injury for purposes of this section. 27 * Sec. 6. AS 09.17.020 is amended to read: 28 Sec. 09.17.020. PUNITIVE DAMAGES. Punitive damages may not be 29 awarded in an action, whether in tort, contract, or otherwise, unless supported by clear 30 and convincing evidence of outrageous conduct, including acts done with malice or 31 bad motives, or reckless indifference to the interest of another person.
01 * Sec. 7. AS 09.17.020 is amended by adding new subsections to read: 02 (b) The amount of punitive damages awarded by a court or jury under (a) of 03 this section may not exceed three times the amount of compensatory damages awarded 04 or $300,000, whichever amount is greater. 05 (c) The limit under (b) of this section does not apply to punitive damages 06 awarded by a court or jury against a person who, as proven by a preponderance of the 07 evidence, was attempting to commit or committing a felony if the person bringing the 08 action was a victim of that offense and the offense substantially contributed to the 09 injury or death. In this subsection, "victim" has the meaning given in AS 12.55.185. 10 (d) If a person receives an award of punitive damages, the court shall require 11 that one-half of the award be deposited into the general fund of the state. This 12 subsection does not grant the state the right to file or join a civil action to recover 13 punitive damages. 14 * Sec. 8. AS 09.17.040(e) is amended to read: 15 (e) Except as provided in this subsection, if a judgment is paid by periodic 16 payments, the [THE] court shall [MAY] require security be posted [,] in order to 17 ensure that funds are available [AS PERIODIC PAYMENTS BECOME DUE]. The 18 court may not require security to be posted if the state, a self-insured municipality, 19 or an authorized insurer, as defined in AS 21.90.900, acknowledges to the court its 20 obligation to discharge the judgment. 21 * Sec. 9. AS 09.17.040(f) is amended to read: 22 (f) A judgment ordering payment of future damages for personal injury or 23 death by periodic payment shall specify the recipient, the dollar amount of the 24 payments, including any increases in future payments for anticipated inflation, the 25 interval between payments, and the number of payments or the period of time over 26 which payments shall be made. Payments may be modified only in the event of the 27 death of the judgment creditor, in which case payments may not be reduced or 28 terminated, but shall be paid to persons to whom the judgment creditor owed a duty 29 of support, as provided by law, immediately before death. In the event the judgment 30 creditor owed no duty of support to dependents at the time of the judgment creditor's 31 death, the money remaining shall be distributed in accordance with a will of the
01 deceased judgment creditor accepted into probate or under the intestate laws of the 02 state if the deceased had no will. In this subsection, "inflation" means the change 03 in the Consumer Price Index for Anchorage, all items index, compiled by the 04 Bureau of Labor Statistics, United States Department of Labor. 05 * Sec. 10. AS 09.17.070 is repealed and reenacted to read: 06 Sec. 09.17.070. COLLATERAL BENEFITS. (a) A claimant in an action for 07 personal injury or death may only recover damages that exceed amounts received by 08 the claimant, or that with reasonable probability will be received in the future by the 09 claimant, as compensation for the injuries from collateral sources, whether private, 10 group, or governmental, and whether contributory or noncontributory, except when 11 (1) the collateral source is a federally funded program that by law must 12 seek subrogation; 13 (2) the collateral source has a right of subrogation under federal law; 14 (3) the collateral source is the payment of a dependent child's medical 15 bills by the injured child's parent which does not result from insurance coverage; or 16 (4) the benefit consists of death benefits paid under life insurance; or 17 (5) the benefit consists of workers' compensation benefits received 18 under AS 23.30. 19 (b) A person defending a claim may introduce into evidence an amount paid 20 or payable as a benefit to the claimant as a result of the personal injury or death under 21 42 U.S.C. 301 - 1397 (Social Security Act); a state or federal disability act; health, 22 sickness, disability, accident, or income-disability insurance; insurance that provides 23 health benefits or income-disability coverage; and a contract or agreement of a group, 24 organization, partnership, or corporation, or other collateral source, to provide, pay for, 25 or reimburse the cost of medical, hospital, dental, or other health care services, 26 disability, or lost wages. However, evidence of a collateral source that is a federally 27 funded program that by law must seek subrogation or that has a right of subrogation 28 under federal law, evidence of death benefits paid under life insurance, or evidence of 29 workers' compensation benefits received under AS 23.30, may not be introduced under 30 this subsection. If a person defending a claim elects to introduce evidence described 31 in this subsection, the claimant may introduce evidence of the amount that the claimant
01 has paid or contributed to secure the claimant's right to the collateral benefit, including 02 the cost to the claimant resulting from depleted or exhausted coverage. 03 (c) A person who provides a collateral benefit admissible under (b) of this 04 section may not recover any amount against the claimant as reimbursement for those 05 benefits and may not be subrogated to the rights of a claimant against a person 06 defending a claim. 07 * Sec. 11. AS 09.17.080(a) is amended to read: 08 (a) In all actions involving fault of more than one person [PARTY TO THE 09 ACTION], including third-party defendants and persons who have been released under 10 AS 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury 11 to answer special interrogatories or, if there is no jury, shall make findings, indicating 12 (1) the amount of damages each claimant would be entitled to recover 13 if contributory fault is disregarded; and 14 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 15 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 16 [AND] person who has been released from liability under AS 09.16.040, or other 17 person responsible for the damages to each claimant regardless of whether the 18 other person, including an employer, is or could have been named as a party to 19 the action. 20 * Sec. 12. AS 09.17.080(c) is amended to read: 21 (c) The court shall determine the award of damages to each claimant in 22 accordance with the findings, subject to a reduction under AS 09.16.040, and enter 23 judgment against each party liable. The court also shall determine and state in the 24 judgment each party's equitable share of the obligation to each claimant in accordance 25 with the respective percentages of fault as determined under (a) of this section. An 26 assessment of a percentage of fault against a person who is not a party may only 27 be used as a measure for accurately determining the percentages of fault of a 28 named party. Assessment of a percentage of fault against a person who is not a 29 party does not subject that person to civil liability in that action and may not be 30 used as evidence of civil liability in another action. 31 * Sec. 13. AS 09.30.065 is amended to read:
01 Sec. 09.30.065. OFFERS OF JUDGMENT. At any time more than 10 days 02 before the trial begins either the party making a claim or the party defending against 03 a claim may serve upon the adverse party an offer to allow judgment to be entered in 04 complete satisfaction of the claim for the money or property or to the effect specified 05 in the offer, with costs then accrued. If within 10 days after the service of the offer 06 the adverse party serves written notice that the offer is accepted, either party may then 07 file the offer and notice of acceptance together with proof of service, and the clerk 08 shall enter judgment. An offer not accepted within 10 days is considered withdrawn 09 and evidence of that offer is not admissible except in a proceeding to determine the 10 form of judgment after verdict. If the judgment finally entered on the claim as to 11 which an offer has been made under this section is at least five percent less [NOT 12 MORE] favorable to the offeree than the offer, the offeree shall pay costs as allowed 13 under the Alaska Rules of Civil Procedure and all reasonable attorney fees 14 incurred by the offeror from the date the offer was made [THE INTEREST 15 AWARDED UNDER AS 09.30.070 AND ACCRUED UP TO THE DATE 16 JUDGMENT IS ENTERED SHALL BE ADJUSTED AS FOLLOWS: 17 (1) IF THE OFFEREE IS THE PARTY MAKING THE CLAIM, THE 18 INTEREST RATE SHALL BE REDUCED BY FIVE PERCENT A YEAR; 19 (2) IF THE OFFEREE IS THE PARTY DEFENDING AGAINST THE 20 CLAIM, THE INTEREST RATE SHALL BE INCREASED BY FIVE PERCENT A 21 YEAR]. 22 * Sec. 14. AS 09.30.070(a) is amended to read: 23 (a) Notwithstanding AS 45.45.010, the [THE] rate of interest on judgments 24 and decrees for the payment of money, including prejudgment interest, is three 25 percent above the 12th Federal Reserve District discount rate in effect on 26 January 2 of the year in which the judgment or decree is entered [10.5 PERCENT 27 A YEAR], except that a judgment or decree founded on a contract in writing, 28 providing for the payment of interest until paid at a specified rate not exceeding the 29 legal rate of interest for that type of contract, bears interest at the rate specified in the 30 contract if the interest rate is set out in the judgment or decree. 31 * Sec. 15. AS 09.30.070 is amended by adding a new subsection to read:
01 (c) Prejudgment interest may not be awarded for future economic damages, 02 future noneconomic damages, or for punitive damages. 03 * Sec. 16. AS 09.55.535(k) is amended to read: 04 (k) The provisions of the Uniform Arbitration Act, AS 09.43.010 - 09.43.180, 05 apply to arbitrations under this section if they do not conflict with the provisions of 06 this section; arbitrations under this section shall be conducted in accordance with 07 procedures established by any rules of court which may be adopted and according to 08 provisions of AS 09.55.540 - 09.55.547 [AS 09.55.540 - 09.55.548] and AS 09.55.554 09 - 09.55.560, and AS 09.65.090. 10 * Sec. 17. AS 09.55 is amended by adding a new section to read: 11 Sec. 09.55.551. MEDICAL EXPERT WITNESS QUALIFICATION. In an 12 action based upon professional negligence brought against a health care provider, a 13 person may not testify as an expert witness on the issue of the appropriate medical 14 standard of care unless the witness is a health care provider or is licensed as a health 15 care provider in another state or country and 16 (1) is trained and experienced in the same discipline or school of 17 practice as the defendant or in an area directly related to a matter at issue; and 18 (2) is certified by a board recognized by the State Medical Board as 19 having acknowledged expertise and training directly related to the particular health care 20 or matter at issue. 21 * Sec. 18. AS 09.55.560 is amended by adding new paragraphs to read: 22 (4) "professional negligence" means a negligent act or omission by a 23 health care provider in rendering professional services; 24 (5) "professional services" means services provided by a health care 25 provider. 26 * Sec. 19. AS 09.65 is amended by adding a new section to read: 27 Sec. 09.65.096. CIVIL LIABILITY OF HOSPITALS FOR NONEMPLOYEES. 28 (a) A hospital is not liable for civil damages as a result of an act or omission by a 29 health care provider who is not an employee or actual agent of the hospital if the 30 hospital provides notice that the health care provider is an independent contractor. The 31 notice required by this subsection must be posted conspicuously in all admitting areas
01 of the hospital, published at least annually in a newspaper of general circulation in the 02 area, and must be in substantially the following form: 03 Notice of Limited Liability 04 The following health care providers are independent contractors 05 and are not employees of the hospital: 06 (List specific health care providers) 07 The hospital is responsible for exercising reasonable care in granting staff privileges 08 to practice in the hospital, for reviewing those privileges on a regular basis, and for 09 taking appropriate steps to revoke or restrict privileges in appropriate circumstances. 10 The hospital is not otherwise liable for the acts or omissions of a health care provider 11 who is an independent contractor. 12 (b) This section does not preclude liability for civil damages that are the 13 proximate result of the hospital's own negligence or intentional misconduct. 14 (c) In this section, 15 (1) "health care provider" means a doctor of medicine, psychologist, 16 osteopath, dentist, optometrist, chiropractor, optician, pharmacist, podiatrist, or certified 17 registered nurse anesthetist, who is licensed in this state; 18 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 19 governmentally owned or operated hospital; 20 (3) "independent contractor" means a licensed health care provider who 21 is a member of a hospital's medical staff or who has otherwise been granted specified 22 privileges to render health care services directly or indirectly to patients at the hospital, 23 but who is not an employee or actual agent of the hospital in connection with the 24 rendition of the health care services. 25 * Sec. 20. AS 09.65.210 is repealed and reenacted to read: 26 Sec. 09.65.210. DAMAGES RESULTING FROM COMMISSION OF A 27 FELONY. (a) A person who suffers personal injury or property damage may not 28 recover damages for the personal injury or property damage if the injury occurred 29 while the person was committing or attempting to commit a felony, or fleeing from the 30 commission of a felony and the person has been convicted of the felony, including 31 conviction based on a guilty plea or plea of nolo contendere, and the felony
01 substantially contributed to the injury or property damage. 02 (b) The personal representative of a deceased person may not recover damages 03 for the person's death if the court determines by clear and convincing evidence that the 04 death occurred while the person was committing or attempting to commit a felony, or 05 fleeing from the commission of a felony, and that the felony substantially contributed 06 to the death. 07 * Sec. 21. AS 09.68 is amended by adding a new section to read: 08 Sec. 09.68.125. SIGNING OF PLEADINGS, MOTIONS, AND OTHER 09 PAPERS; SANCTIONS. Every pleading, motion, and other paper of a party 10 represented by an attorney shall be signed by at least one attorney of record in the 11 attorney's individual name, whose address shall be stated. A party who is not 12 represented by an attorney shall sign the party's pleading, motion, or other paper and 13 state the party's address. Except when otherwise specifically provided by the Alaska 14 Rules of Civil Procedure or statute, pleadings need not be verified or accompanied by 15 affidavit. The signature of an attorney or party constitutes a certificate by the signer 16 that the signer has read the pleading, motion, or other paper; that to the best of the 17 signer's knowledge, information, and belief formed after reasonable inquiry it is well 18 grounded in fact and is warranted by existing law or a good faith argument of the 19 extension, modification, or reversal of existing law; and that it is not interposed for any 20 improper purpose, including to harass or to cause unnecessary delay or needless 21 increase in the cost of litigation. If a pleading, motion, or other paper is not signed, 22 it shall be stricken unless it is signed promptly after the omission is called to the 23 attention of the pleader or movant. If it is alleged or appears that a pleading, motion, 24 or other paper is signed in violation of this section, the court, upon motion or upon its 25 own initiative, may set the matter for hearing. If the court determines that a pleading, 26 motion, or other paper is signed in violation of this section, the court shall impose 27 upon the person who signed it, a represented party, or both, an appropriate sanction 28 that may include an order to pay to the other party the amount of the reasonable 29 expenses incurred because of the filing of the pleading, motion, or other paper, 30 including costs and attorney fees, and monetary sanctions not to exceed $10,000. 31 * Sec. 22. AS09.55.548 is repealed.
01 * Sec. 23. AS 09.68.125, as enacted in sec. 21 of this Act, has the effect of amending 02 Alaska Rule of Civil Procedure 95, by requiring imposition of sanctions for certain failures 03 to sign pleadings, motions, or other papers. 04 * Sec. 24. SEVERABILITY. Under AS 01.10.030, if any provision of this Act, or the 05 application of a provision of this Act to any person or circumstance is held invalid, the 06 remainder of this Act and the application to other persons shall not be affected. 07 * Sec. 25. APPLICABILITY. This Act applies to all causes of action accruing on or after 08 the effective date of this Act.