HB 58: "An Act relating to civil actions; amending Rules 49 and 68, Alaska Rules of Civil Procedure; amending Rule 702, Alaska Rules of Evidence; and providing for an effective date."
00HOUSE BILL NO. 58 01 "An Act relating to civil actions; amending Rules 49 and 68, Alaska Rules of 02 Civil Procedure; amending Rule 702, Alaska Rules of Evidence; and providing for 03 an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 09.10.055 is repealed and reenacted to read: 06 Sec. 09.10.055. Statute of repose of eight years. (a) Notwithstanding the 07 disability of minority described under AS 09.10.140(a), a person may not bring an 08 action for personal injury, death, or property damage unless commenced within eight 09 years of the earlier of the date of 10 (1) substantial completion of the construction alleged to have caused 11 the personal injury, death, or property damage; however, the limitation of this 12 paragraph does not apply to a claim resulting from an intentional or reckless disregard 13 of specific project design plans and specifications or building codes; or 14 (2) the last act alleged to have caused the personal injury, death, or
01 property damage. 02 (b) This section does not apply if 03 (1) the personal injury, death, or property damage resulted from 04 (A) exposure to a hazardous substance; in this subparagraph, 05 "hazardous substance" means an element or compound that, when it enters into 06 the air or on the surface or subsurface land or water of the state, presents an 07 imminent and substantial danger to public or individual health and welfare; 08 (B) an intentional act or gross negligence; 09 (C) fraud or fraudulent misrepresentation; 10 (D) breach of an express warranty or guarantee; or 11 (E) a defective product; in this subparagraph, "product" means 12 an object that has intrinsic value, is capable of delivery as an assembled whole 13 or as a component part, and is introduced into trade or commerce; "product" 14 includes an element or compound that if ingested by humans or if humans are 15 exposed to, or are in contact with the element compound or product, poses a 16 threat to human health; 17 (2) the facts that would give notice of a potential cause of action are 18 intentionally concealed; 19 (3) a shorter period of time for bringing the action is imposed under 20 another provision of law; or 21 (4) a longer period of time for bringing the action was provided under 22 a contract. 23 (c) The limitation imposed under (a) of this section is tolled during any period 24 in which there exists the undiscovered presence of a foreign body that has no 25 therapeutic or diagnostic purpose or effect in the body of the injured person and the 26 action is based on the presence of the foreign body. 27 (d) In this section, "substantial completion" means the date when construction 28 is sufficiently completed to allow the owner or a person authorized by the owner to 29 occupy the improvement or to use the improvement in the manner for which it was 30 intended. 31 * Sec. 2. AS 09.10.070(a) is amended to read:
01 (a) Except as otherwise provided by law, a [A] person may not bring an 02 action (1) for libel, slander, assault, battery, seduction, or false imprisonment [, OR 03 FOR ANY INJURY TO THE PERSON OR RIGHTS OF ANOTHER NOT ARISING 04 ON CONTRACT AND NOT SPECIFICALLY PROVIDED OTHERWISE]; (2) upon 05 a statute for a forfeiture or penalty to the state; or (3) upon a liability created by 06 statute, other than a penalty or forfeiture; unless the action is commenced within two 07 years. 08 * Sec. 3. AS 09.10 is amended by adding a new section to read: 09 Sec. 09.10.075. Limitation on actions involving injury to person or 10 property. (a) Notwithstanding the disability of minority described under 11 AS 09.10.140(a), a person may not bring an action for personal injury, death, property 12 damage, or injury to the rights of another not arising on contract unless the action is 13 brought within two years of the accrual of the action. 14 (b) This section does not apply if a shorter period of time for bringing the 15 action is imposed under another provision of law. 16 * Sec. 4. AS 09.17.010 is repealed and reenacted to read: 17 Sec. 09.17.010. Noneconomic damages. (a) In an action to recover damages 18 for personal injury or wrongful death, all damage claims for noneconomic losses shall 19 be limited to compensation for pain, suffering, inconvenience, physical impairment, 20 disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary 21 damage. 22 (b) Except as provided under (c) of this section, the amount of damages 23 awarded by a court or a jury under (a) of this section for all claims, including a loss 24 of consortium claim, arising out of a single injury or death may not exceed $300,000. 25 (c) In an action for personal injury, the damages awarded by a court or jury 26 that are described under (a) of this section may not exceed $500,000 when the 27 claimant, as a result of the injury, 28 (A) is a hemiplegic, paraplegic, or quadriplegic and has 29 permanent functional loss of one or more limbs resulting from injury to the 30 spine or spinal cord; 31 (B) has lost both arms or both legs or an arm and a leg;
01 (C) has permanently impaired cognitive capacity, is incapable 02 of making independent, responsible decisions, and is permanently incapable of 03 independently performing the activities of normal, daily living; 04 (D) is both deaf and blind; or 05 (E) has third degree burns over one-half or more of the 06 claimant's body. 07 (d) The limit under (b) or (c) of this section does not apply to noneconomic 08 damages awarded by a court or jury against a person who, as proven by a 09 preponderance of the evidence, was attempting to commit or committing a felony if 10 the person bringing the action was a victim of that offense and the offense 11 substantially contributed to the injury or death. In this subsection, "victim" has the 12 meaning given in AS 12.55.185. 13 (e) Multiple injuries sustained by one person as a result of a single incident 14 shall be treated as a single injury for purposes of this section. 15 * Sec. 5. AS 09.17.020 is amended to read: 16 Sec. 09.17.020. Punitive damages. Punitive damages may not be awarded in 17 an action, whether in tort, contract, or otherwise, unless supported by clear and 18 convincing evidence of outrageous conduct, including acts done with malice or bad 19 motives, or reckless indifference to the interest of another person. 20 * Sec. 6. AS 09.17.020 is amended by adding new subsections to read: 21 (b) The amount of punitive damages awarded by a court or jury under (a) of 22 this section may not exceed three times the amount of compensatory damages awarded 23 or $300,000, whichever amount is greater. 24 (c) The limit under (b) of this section does not apply to punitive damages 25 awarded by a court or jury against a person who, as proven by a preponderance of the 26 evidence, was attempting to commit or committing a felony if the person bringing the 27 action was a victim of that offense and the offense substantially contributed to the 28 injury or death. In this subsection, "victim" has the meaning given in AS 12.55.185. 29 (d) If a person receives an award of punitive damages, the court shall require 30 that 75 percent of the award be deposited into the general fund of the state. This 31 subsection does not grant the state the right to file or join a civil action to recover
01 punitive damages. 02 * Sec. 7. AS 09.17.070 is repealed and reenacted to read: 03 Sec. 09.17.070. Collateral benefits. (a) A claimant in an action for personal 04 injury or death may only recover damages that exceed amounts received by the 05 claimant, or that with reasonable probability will be received in the future by the 06 claimant, as compensation for the injuries from collateral sources, whether private, 07 group, or governmental, and whether contributory or noncontributory, except when 08 (1) the collateral source is a federally funded program that by law must 09 seek subrogation; 10 (2) the collateral source has a right of subrogation under federal law; 11 (3) the collateral source is the payment of a dependent child's medical 12 bills by the injured child's parent that does not result from insurance coverage; 13 (4) the benefit consists of death benefits paid under life insurance; or 14 (5) the benefit consists of workers' compensation benefits received 15 under AS 23.30. 16 (b) A person defending a claim may introduce into evidence an amount paid 17 or payable as a benefit to the claimant as a result of the personal injury or death under 18 42 U.S.C. 301 - 1397 (Social Security Act); a state or federal disability act; health, 19 sickness, disability, accident, or income-disability insurance; insurance that provides 20 health benefits or income-disability coverage; and a contract or agreement of a group, 21 organization, partnership, or corporation, or other collateral source, to provide, pay for, 22 or reimburse the cost of medical, hospital, dental, or other health care services, 23 disability, or lost wages. However, evidence of a collateral source that is a federally 24 funded program that by law must seek subrogation or that has a right of subrogation 25 under federal law, evidence of death benefits paid under life insurance, or evidence of 26 workers' compensation benefits received under AS 23.30, may not be introduced under 27 this subsection. If a person defending a claim elects to introduce evidence described 28 in this subsection, the claimant may introduce evidence of the amount that the claimant 29 has paid or contributed to secure the claimant's right to the collateral benefit, including 30 the cost to the claimant resulting from depleted or exhausted coverage. 31 (c) A person who provides a collateral benefit admissible under (b) of this
01 section may not recover an amount against the claimant as reimbursement for those 02 benefits and may not be subrogated to the rights of a claimant against a person 03 defending a claim. 04 * Sec. 8. AS 09.17.080(a) is amended to read: 05 (a) In all actions involving fault of more than one person [PARTY TO THE 06 ACTION], including third-party defendants and persons who have been released 07 [UNDER AS 09.16.040], the court, unless otherwise agreed by all parties, shall instruct 08 the jury to answer special interrogatories or, if there is no jury, shall make findings, 09 indicating 10 (1) the amount of damages each claimant would be entitled to recover 11 if contributory fault is disregarded; and 12 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 13 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 14 [AND] person who has been released from liability, or other person responsible for 15 the damages to each claimant regardless of whether the other person, including 16 an employer, is or could have been named as a party to the action [UNDER 17 AS 09.16.040]. 18 * Sec. 9. AS 09.17.080(b) is amended to read: 19 (b) In determining the percentages of fault, the trier of fact shall consider both 20 the nature of the conduct of each person [PARTY] at fault, and the extent of the 21 causal relation between the conduct and the damages claimed. The trier of fact may 22 assign a percentage of fault to [DETERMINE THAT] two or more persons [ARE TO 23 BE TREATED AS A SINGLE PARTY] if their conduct was a cause of the damages 24 claimed and the separate act or omission of each person cannot be distinguished. 25 * Sec. 10. AS 09.17.080(c) is amended to read: 26 (c) The court shall determine the award of damages to each claimant in 27 accordance with the findings [, SUBJECT TO A REDUCTION UNDER 28 AS 09.16.040,] and enter judgment against each party liable. The court also shall 29 determine and state in the judgment each party's equitable share of the obligation to 30 each claimant in accordance with the respective percentages of fault as determined 31 under (a) of this section. An assessment of a percentage of fault against a person
01 who is not a party may only be used as a measure for accurately determining the 02 percentages of fault of a named party. Assessment of a percentage of fault 03 against a person who is not a party does not subject that person to civil liability 04 in that action and may not be used as evidence of civil liability in another action. 05 * Sec. 11. AS 09.20 is amended by adding a new section to read: 06 Sec. 09.20.185. Expert witness qualification. (a) Except as provided under 07 (b) of this section, in an action based on professional negligence, a person may not 08 testify as an expert witness on the issue of the appropriate standard of care unless the 09 witness is a professional who is licensed in this state or in another state or country and 10 is 11 (1) trained and experienced in the same discipline or school of practice 12 as the defendant or in an area directly related to a matter at issue; and 13 (2) certified by a board recognized by the state as having acknowledged 14 expertise and training directly related to the particular field or matter at issue. 15 (b) The provisions of (a) of this section do not apply to a person who is 16 testifying on the appropriate standard of care in a profession that is not licensed in this 17 state, or another state or country, and who the court determines is qualified as an 18 expert witness. 19 (c) In this section, "professional negligence" means a negligent act or omission 20 in rendering professional services. 21 * Sec. 12. AS 09.30.070 is amended by adding a new subsection to read: 22 (c) Prejudgment interest may not be awarded for future economic damages, 23 future noneconomic damages, or punitive damages. 24 * Sec. 13. AS 09.55.535(k) is amended to read: 25 (k) The provisions of AS 09.43.010 - 09.43.180 (Uniform Arbitration Act) 26 apply to arbitrations under this section if they do not conflict with the provisions of 27 this section; arbitrations under this section shall be conducted in accordance with 28 procedures established by any rules of court which may be adopted and according to 29 provisions of AS 09.55.540 - 09.55.547 [AS 09.55.540 - 09.55.548] and AS 09.55.554 30 - 09.55.560, and AS 09.65.090. 31 * Sec. 14. AS 09.65 is amended by adding a new section to read:
01 Sec. 09.65.096. Civil liability of hospitals for nonemployees. (a) A hospital 02 is not liable for civil damages as a result of an act or omission by a health care 03 provider who is not an employee or actual agent of the hospital if the hospital provides 04 notice that the health care provider is an independent contractor. The notice required 05 by this subsection must be posted conspicuously in all admitting areas of the hospital, 06 published at least annually in a newspaper of general circulation in the area, and be 07 in substantially the following form: 08 Notice of Limited Liability 09 The following health care providers are independent contractors 10 and are not employees of the hospital: 11 (List specific health care providers) 12 The hospital is responsible for exercising reasonable care in granting staff privileges 13 to practice in the hospital, for reviewing those privileges on a regular basis, and for 14 taking appropriate steps to revoke or restrict privileges in appropriate circumstances. 15 The hospital is not otherwise liable for the acts or omissions of a health care provider 16 who is an independent contractor. 17 (b) This section does not preclude liability for civil damages that are the 18 proximate result of the hospital's own negligence or intentional misconduct. 19 (c) In this section, 20 (1) "health care provider" means a doctor of medicine, psychologist, 21 osteopath, dentist, optometrist, chiropractor, optician, pharmacist, podiatrist, or certified 22 registered nurse anesthetist, who is licensed in this state; 23 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 24 governmentally owned or operated hospital; 25 (3) "independent contractor" means a licensed health care provider who 26 is a member of a hospital's medical staff or who has otherwise been granted specified 27 privileges to render health care services directly or indirectly to patients at the hospital, 28 but who is not an employee or actual agent of the hospital in connection with the 29 rendition of the health care services. 30 * Sec. 15. AS 09.65.210 is repealed and reenacted to read: 31 Sec. 09.65.210. Damages resulting from commission of a felony. (a) A
01 person who suffers personal injury or property damage may not recover damages for 02 the personal injury or property damage if the injury occurred while the person was 03 attempting to commit or committing a felony, or fleeing from the commission of a 04 felony, and the felony substantially contributed to the injury or property damage. 05 (b) The personal representative of a deceased person may not recover damages 06 for the person's death if the court determines by clear and convincing evidence that 07 the death occurred while the person was attempting to commit or committing a felony, 08 or fleeing from the commission of a felony, and that the felony substantially 09 contributed to the death. 10 * Sec. 16. AS 09.55.548 is repealed. 11 * Sec. 17. AS 09.17.080(a), as amended by sec. 8 of this Act, has the effect of amending 12 Rule 49, Alaska Rules of Civil Procedure, by requiring the jury to answer the special 13 interrogatory listed in AS 09.17.080(a)(2) regarding the percentages of fault to be allocated 14 among the claimants, defendants, third-party defendants, persons who have been released from 15 liability, or other person who is responsible for the damages. 16 * Sec. 18. AS 09.20.185, enacted by sec. 11 of this Act, has the effect of amending 17 Rule 702, Alaska Rules of Evidence, by requiring certain qualifications from a person 18 testifying as an expert witness. 19 * Sec. 19. AS 09.30.070(c), added by sec. 12 of this Act, has the effect of amending 20 Rule 68, Alaska Rules of Civil Procedure, by providing that prejudgment interest may not be 21 awarded for future economic or noneconomic damages. 22 * Sec. 20. APPLICABILITY. This Act applies to all causes of action accruing on or after 23 the effective date of this Act, except that this Act does not apply to a cause of action resulting 24 from the Exxon Valdez oil spill occurring on March 24, 1989. 25 * Sec. 21. SEVERABILITY. Under AS 01.10.030, if any provision of this Act or the 26 application of a provision of this Act to any person or circumstance is held invalid, the 27 remainder of this Act and the application to other persons shall not be affected. 28 * Sec. 22. This Act takes effect July 1, 1997.