SSHB 58: "An Act relating to civil actions; relating to independent counsel provided under an insurance policy; relating to attorney fees; amending Rules 16.1, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rule 702, Alaska Rules of Evidence; amending Rule 511, Alaska Rules of Appellate Procedure; and providing for an effective date."
00SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58 01 "An Act relating to civil actions; relating to independent counsel provided under 02 an insurance policy; relating to attorney fees; amending Rules 16.1, 41, 49, 58, 03 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rule 702, Alaska 04 Rules of Evidence; amending Rule 511, Alaska Rules of Appellate Procedure; and 05 providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. LEGISLATIVE INTENT. In enacting this bill, it is the intent of this 08 legislature as a matter of public policy to 09 (1) encourage the efficiency of the civil justice system by discouraging 10 frivolous litigation and by decreasing the amount, cost, and complexity of litigation without 11 diminishing the protection of innocent Alaskans' rights to reasonable, but not excessive, 12 compensation for tortious injuries caused by others; 13 (2) provide for reasonable, but not excessive, punitive damage awards against 14 tortfeasors sufficient to deter conduct and practices that harm innocent Alaskans while not
01 hampering a positive business environment by allowing excessive penalties; 02 (3) encourage individual savings and economic growth by fostering an 03 environment likely to control the increase of liability insurance rates to individuals and 04 businesses resulting in a savings to the state, municipalities, and private businesses that are 05 self-insured; 06 (4) encourage the traditionally recognized Alaska values of self-reliance and 07 independence by underscoring the need for personal responsibility in making choices and 08 personal accountability for the consequences of those choices; 09 (5) alleviate the high cost of malpractice insurance premiums that discourage 10 physicians, architects, engineers, attorneys, and other professionals from rendering needed 11 services to the public; 12 (6) ensure that hospitals that comply with the disclosure requirements set out 13 in this Act are not liable for the negligence of independent contractors; to this extent, this Act 14 is intended to overrule Jackson v. Powers, 743 P.2d 1376 (Alaska 1987); 15 (7) ensure that one of several tortfeasors is not held responsible for the 16 negligence of an employer; to this extent, this Act is intended to overrule Lake v. Construction 17 Machinery, Inc., 787 P.2d 1027 (Alaska 1990); 18 (8) enact a statute of repose that meets the tests set out in Turner Construction 19 Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988); 20 (9) ensure that in actions involving the fault of more than one person, the fault 21 of each claimant, defendant, third-party defendant, person who has been released from 22 liability, or other person responsible for the damages be determined and awards be allocated 23 in accordance with the fault of each, thereby overruling Benner v. Wichman, 874 P.2d 949 24 (Alaska 1994); and 25 (10) reduce the amount of litigation proceeding to trial by modifying the 26 allocation of attorney fees and court costs based on the offer of judgment and the final court 27 award, thereby providing a financial incentive to both parties to settle the dispute. 28 * Sec. 2. AS 06.05.473(h) is amended to read: 29 (h) After the payment of all other claims, including interest at the rate of 10.5 30 percent a year [ESTABLISHED UNDER AS 09.30.070], the department shall pay 31 claims that are otherwise valid but that were not filed within the time prescribed.
01 * Sec. 3. AS 09.10.050 is repealed and reenacted to read: 02 Sec. 09.10.050. Certain property actions to be brought in six years. Unless 03 the action is commenced within six years, a person may not bring an action for waste 04 or trespass upon real property. 05 * Sec. 4. AS 09.10 is amended by adding a new section to read: 06 Sec. 09.10.053. Contract actions to be brought in three years. Unless the 07 action is commenced within three years, a person may not bring an action upon a 08 contract or liability, express or implied, except as provided in AS 09.10.040 or as 09 otherwise provided by law. 10 * Sec. 5. AS 09.10.055 is repealed and reenacted to read: 11 Sec. 09.10.055. Statute of repose of eight years. (a) Notwithstanding the 12 disability of minority described under AS 09.10.140(a), a person may not bring an 13 action for personal injury, death, or property damage unless commenced within eight 14 years of the earlier of the date of 15 (1) substantial completion of the construction alleged to have caused 16 the personal injury, death, or property damage; however, the limitation of this 17 paragraph does not apply to a claim resulting from an intentional or reckless disregard 18 of specific project design plans and specifications or building codes; in this paragraph, 19 "substantial completion" means the date when construction is sufficiently completed 20 to allow the owner or a person authorized by the owner to occupy the improvement 21 or to use the improvement in the manner for which it was intended; or 22 (2) the last act alleged to have caused the personal injury, death, or 23 property damage. 24 (b) This section does not apply if 25 (1) the personal injury, death, or property damage resulted from 26 (A) prolonged exposure to hazardous waste; 27 (B) an intentional act or gross negligence; 28 (C) fraud or fraudulent misrepresentation; 29 (D) breach of an express warranty or guarantee; or 30 (E) a defective product; in this subparagraph, "product" means 31 an object that has intrinsic value, is capable of delivery as an assembled whole
01 or as a component part, and is introduced into trade or commerce; 02 (2) the facts that would give notice of a potential cause of action are 03 intentionally concealed; 04 (3) a shorter period of time for bringing the action is imposed under 05 another provision of law. 06 (c) The limitation imposed under (a) of this section is tolled during any period 07 in which there exists the undiscovered presence of a foreign body that has no 08 therapeutic or diagnostic purpose or effect in the body of the injured person and the 09 action is based on the presence of the foreign body. 10 * Sec. 6. AS 09.10 is amended by adding a new section to read: 11 Sec. 09.10.065. Limitation of actions against health care providers. (a) 12 Notwithstanding the disability of minority described under AS 09.10.140(a), an action 13 based on professional negligence may not be brought against a health care provider if 14 the injured person is, on the date of the alleged negligent act or omission, less than six 15 years of age unless the action is commenced before the person's eighth birthday. 16 (b) The limitation imposed under (a) of this section is tolled during any period 17 in which there exists 18 (1) fraud, including fraud or collusion by a parent, guardian, insurer, 19 or health care provider, resulting in the failure to bring an action on behalf of an 20 injured minor; 21 (2) intentional concealment of facts that would give notice of a 22 potential action; or 23 (3) the undiscovered presence of a foreign object that has no 24 therapeutic or diagnostic purpose or effect in the body of the injured person and the 25 action is based on the presence of the foreign object. 26 (c) In this section, 27 (1) "health care provider" has the meaning given in AS 09.55.560; 28 (2) "professional negligence" has the meaning given in AS 09.55.560; 29 (3) "professional services" has the meaning given in AS 09.55.560. 30 * Sec. 7. AS 09.10.070(a) is amended to read: 31 (a) Except as otherwise provided by law, a [A] person may not bring an
01 action (1) for libel, slander, assault, battery, seduction, or false imprisonment, (2) 02 [OR] for personal [ANY] injury or death, [TO THE PERSON] or injury to the rights 03 of another not arising on contract and not specifically provided otherwise; (3) for 04 taking, detaining, or injuring personal property, including an action for its 05 specific recovery; (4) [(2)] upon a statute for a forfeiture or penalty to the state; or 06 (5) [(3)] upon a liability created by statute, other than a penalty or forfeiture; unless 07 the action is commenced within two years of the accrual of the cause of action. 08 * Sec. 8. AS 09.17.010 is repealed and reenacted to read: 09 Sec. 09.17.010. Noneconomic damages. (a) In an action to recover damages 10 for personal injury or wrongful death, all damage claims for noneconomic losses shall 11 be limited to compensation for pain, suffering, inconvenience, physical impairment, 12 disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary 13 damage. 14 (b) Except as provided under (c) of this section, the damages awarded by a 15 court or a jury under (a) of this section for all claims, including a loss of consortium 16 claim, arising out of a single injury or death may not exceed $300,000. 17 (c) In an action for personal injury, the damages awarded by a court or jury 18 that are described under (b) of this section may not exceed $500,000 when the 19 claimant, as a result of the injury, 20 (1) is a hemiplegic, paraplegic, or quadriplegic and has permanent 21 functional loss of one or more limbs resulting from injury to the spine or spinal cord; 22 or 23 (2) has permanently impaired cognitive capacity and is incapable of 24 making independent, responsible decisions. 25 (d) Multiple injuries sustained by one person as a result of a single incident 26 shall be treated as a single injury for purposes of this section. 27 * Sec. 9. AS 09.17.020 is amended to read: 28 Sec. 09.17.020. Punitive damages. Punitive damages may not be awarded in 29 an action, whether in tort, contract, or otherwise, unless supported by clear and 30 convincing evidence of malice or conscious acts showing deliberate disregard of 31 another person by the person from whom the punitive damages are sought.
01 * Sec. 10. AS 09.17.020 is amended by adding new subsections to read: 02 (b) Except as provided under (c) of this section, the amount of punitive 03 damages awarded by a court or jury under (a) of this section may not exceed three 04 times the amount of compensatory damages awarded or $300,000, whichever amount 05 is greater. 06 (c) The amount of punitive damages awarded by a court or jury under (a) of 07 this section may not exceed four times the amount of compensatory damages awarded 08 or $600,000, whichever amount is greater, if 09 (1) the wrongful conduct or omission arose in connection with a 10 commercial activity motivated by financial gain; and 11 (2) the likelihood of death or serious bodily injury from the commercial 12 activity was previously known by the person responsible for making policy decisions 13 relating to the commercial activity and the knowledge was gained from previous 14 instances of death or serious bodily injury arising from the same wrongful conduct or 15 omission, regardless of where the previous wrongful conduct or omission occurred. 16 (d) If a person receives an award of punitive damages, the court shall require 17 that 50 percent of the award be deposited into the general fund of the state. This 18 subsection does not grant the state the right to file or join a civil action to recover 19 punitive damages. 20 * Sec. 11. AS 09.17.040(a) is amended to read: 21 (a) In every case where damages for personal injury or death are awarded by 22 the court or jury, 23 (1) the verdict shall be itemized between economic loss and 24 noneconomic loss, if any, as follows: 25 (A) [(1)] past economic loss; 26 (B) [(2)] past noneconomic loss; 27 (C) [(3)] future economic loss; 28 (D) [(4)] future noneconomic loss; [AND] 29 (E) [(5)] punitive damages; and 30 (2) the amount of damages awarded shall be reduced by the 31 amount of federal and state income tax that would have been paid on damages
01 contained in the verdict under tax rates in effect on the date of the injury or 02 death; this paragraph does not apply to an award of damages if the damages are 03 taxable under federal or state law. 04 * Sec. 12. AS 09.17.040(d) is amended to read: 05 (d) In an action to recover damages, the court shall, at the request of a [AN 06 INJURED] party, enter judgment ordering that amounts awarded a judgment creditor 07 for [FUTURE] damages that exceed $100,000 be paid to the maximum extent feasible 08 by periodic payments rather than by a lump-sum payment. If a portion of the 09 judgment awarded is owed to an attorney under a contingent fee agreement, that 10 portion of the judgment shall be reduced to present value, if necessary, and paid 11 in a lump sum, and the remaining portion of the judgment shall be paid as 12 provided under this subsection. 13 * Sec. 13. AS 09.17.040(e) is amended to read: 14 (e) Except as provided in this subsection, if a judgment is paid by 15 structured settlement type periodic payments, the [THE] court shall [MAY] require 16 security be posted in the form of United States government obligations [,] in order 17 to ensure that funds are available as periodic payments become due. The court may 18 not require security to be posted if the state, a self-insured municipality, or an 19 authorized insurer, as defined in AS 21.90.900, acknowledges to the court its 20 obligation to discharge the judgment, provided that an authorized insurer must be 21 rated by two nationally recognized independent rating agencies to be in the two 22 highest categories of quality and financial soundness. If a judgment is paid by 23 annuity type period payments, the court shall require the annuity be purchased 24 from an authorized insurer that is rated by two nationally recognized independent 25 rating agencies to be in the two highest categories of quality and financial 26 soundness. The injured party shall determine whether a structured settlement or 27 an annuity is the source of the periodic payments. The injured party may not be 28 required to accept a structured settlement or annuity from the defendant's or 29 other party's insurer or from any affiliated companies of the insurer. 30 * Sec. 14. AS 09.17.040(f) is amended to read: 31 (f) A judgment ordering payment of [FUTURE] damages for personal injury
01 or death by periodic payment shall specify the recipient, the dollar amount of the 02 payments, including any increases in future payments for anticipated inflation, the 03 interval between payments, and the number of payments or the period of time over 04 which payments shall be made. Payments may be modified only in the event of the 05 death of the judgment creditor, in which case payments may not be reduced or 06 terminated, but shall be paid to persons to whom the judgment creditor owed a duty 07 of support, as provided by law, immediately before death. In the event the judgment 08 creditor owed no duty of support to dependents at the time of the judgment creditor's 09 death, the money remaining shall be distributed in accordance with a will of the 10 deceased judgment creditor accepted into probate or under the intestate laws of the 11 state if the deceased had no will. In this subsection, "inflation" means the change 12 in the consumer price index for Anchorage, all items index, compiled by the 13 Bureau of Labor Statistics, United States Department of Labor. 14 * Sec. 15. AS 09.17.070 is repealed and reenacted to read: 15 Sec. 09.17.070. Collateral benefits. (a) A claimant in an action for personal 16 injury or death may only recover damages that exceed amounts received by the 17 claimant, or that with reasonable probability will be received in the future by the 18 claimant, as compensation for the injuries from collateral sources, whether private, 19 group, or governmental, and whether contributory or noncontributory, except when 20 (1) the collateral source is a federally funded program that by law must 21 seek subrogation; 22 (2) the collateral source has a right of subrogation under federal law; 23 (3) the collateral source is the payment of a dependent child's medical 24 bills by the injured child's parent that does not result from insurance coverage; 25 (4) the benefit consists of death benefits paid under life insurance; or 26 (5) the benefit consists of workers' compensation benefits received 27 under AS 23.30. 28 (b) A person defending a claim may introduce into evidence at trial an amount 29 paid or payable as a benefit to the claimant as a result of the personal injury or death 30 under 42 U.S.C. 301 - 1397 (Social Security Act); a federal disability act; health, 31 sickness, disability, accident, or income-disability insurance; insurance that provides
01 health benefits or income-disability coverage; and a contract or agreement of a group, 02 organization, partnership, or corporation, or other collateral source, to provide, pay for, 03 or reimburse the cost of medical, hospital, dental, or other health care services, 04 disability, or lost wages. However, evidence of a collateral source described under 05 (a)(1) - (5) of this section may not be introduced into evidence at trial. If a person 06 defending a claim elects to introduce evidence described in this subsection, the 07 claimant may introduce evidence of the amount that the claimant has paid or 08 contributed to secure the claimant's right to the collateral benefit, including the cost 09 to the claimant resulting from depleted or exhausted coverage. 10 (c) A person who provides a collateral benefit admissible under (b) of this 11 section may not recover an amount against the claimant as reimbursement for those 12 benefits and may not be subrogated to the rights of a claimant against a person 13 defending a claim. 14 * Sec. 16. AS 09.17.080(a) is amended to read: 15 (a) In all actions involving fault of more than one person [PARTY TO THE 16 ACTION], including third-party defendants and persons who have been released 17 [UNDER AS 09.16.040], the court, unless otherwise agreed by all parties, shall instruct 18 the jury to answer special interrogatories or, if there is no jury, shall make findings, 19 indicating 20 (1) the amount of damages each claimant would be entitled to recover 21 if contributory fault is disregarded; and 22 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 23 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 24 [AND] person who has been released from liability, or other person responsible for 25 the damages to each claimant regardless of whether the other person, including 26 an employer, is or could have been named as a party to the action [UNDER 27 AS 09.16.040]. 28 * Sec. 17. AS 09.17.080(b) is amended to read: 29 (b) In determining the percentages of fault, the trier of fact shall consider both 30 the nature of the conduct of each person [PARTY] at fault, and the extent of the 31 causal relation between the conduct and the damages claimed. The trier of fact may
01 assign a percentage of fault to [DETERMINE THAT] two or more persons [ARE TO 02 BE TREATED AS A SINGLE PARTY] if their conduct was a cause of the damages 03 claimed and the separate act or omission of each person cannot be distinguished. 04 * Sec. 18. AS 09.17.080(c) is amended to read: 05 (c) The court shall determine the award of damages to each claimant in 06 accordance with the findings [, SUBJECT TO A REDUCTION UNDER 07 AS 09.16.040,] and enter judgment against each party liable. The court also shall 08 determine and state in the judgment each party's equitable share of the obligation to 09 each claimant in accordance with the respective percentages of fault as determined 10 under (a) of this section. Except as provided under AS 23.30.015(g), an 11 assessment of a percentage of fault against a person who is not a party may only 12 be used as a measure for accurately determining the percentages of fault of a 13 named party. Assessment of a percentage of fault against a person who is not a 14 party does not subject that person to civil liability in that action and may not be 15 used as evidence of civil liability in another action. 16 * Sec. 19. AS 09.17.900 is amended to read: 17 Sec. 09.17.900. Definition. In this chapter, "fault" includes acts or omissions 18 that are in any measure negligent, [OR] reckless, or intentional toward the person or 19 property of the actor or others, or that subject a person to strict tort liability. The term 20 also includes breach of warranty, unreasonable assumption of risk not constituting an 21 enforceable express consent, misuse of a product for which the defendant otherwise 22 would be liable, and unreasonable failure to avoid an injury or to mitigate damages. 23 Legal requirements of causal relation apply both to fault as the basis for liability and 24 to contributory fault. 25 * Sec. 20. AS 09.20 is amended by adding a new section to read: 26 Sec. 09.20.185. Expert witness qualification. (a) In an action based on 27 professional negligence, a person may not testify as an expert witness on the issue of 28 the appropriate standard of care unless the witness is 29 (1) a professional who is licensed in this state or in another state or 30 country; 31 (2) trained and experienced in the same discipline or school of practice
01 as the defendant or in an area directly related to a matter at issue; and 02 (3) certified by a board recognized by the state as having acknowledged 03 expertise and training directly related to the particular field or matter at issue; however, 04 this paragraph does not apply if a board does not exist that could certify the witness 05 in the particular field or matter at issue. 06 * Sec. 21. AS 09.30.065 is amended to read: 07 Sec. 09.30.065. Offers of judgment. At any time more than 10 days before 08 the trial begins, either the party making a claim or the party defending against a claim 09 may serve upon the adverse party an offer to allow judgment to be entered in complete 10 satisfaction of the claim for the money or property or to the effect specified in the 11 offer, with costs then accrued. If within 10 days after the service of the offer the 12 adverse party serves written notice that the offer is accepted, either party may then file 13 the offer and notice of acceptance together with proof of service, and the clerk shall 14 enter judgment. An offer not accepted within 10 days is considered withdrawn, and 15 evidence of that offer is not admissible except in a proceeding to determine the form 16 of judgment after verdict. If the judgment finally entered on the claim as to which an 17 offer has been made under this section is at least five percent, less [NOT MORE] 18 favorable to the offeree than the offer, the offeree, whether the party making the 19 claim or defending against the claim, shall pay all costs as allowed under the 20 Alaska Rules of Civil Procedure and shall pay reasonable actual attorney fees 21 incurred by the offeror from the date the offer was made, [THE INTEREST 22 AWARDED UNDER AS 09.30.070 AND ACCRUED UP TO THE DATE 23 JUDGMENT IS ENTERED SHALL BE ADJUSTED] as follows: 24 (1) if the offer was served no later than 60 days after both parties 25 made the disclosures required by the Alaska Rules of Civil Procedure the offeree 26 shall pay 100 percent of the offeror's reasonable actual attorney fees [OFFEREE 27 IS THE PARTY MAKING THE CLAIM, THE INTEREST RATE SHALL BE 28 REDUCED BY FIVE PERCENT A YEAR]; 29 (2) if the offer was served more than 60 days after both parties 30 made the disclosures required by the Alaska Rules of Civil Procedure but more 31 than 90 days before the trial began, the offeree shall pay 75 percent of the
01 offeror's reasonable actual attorney fees; 02 (3) if the offer was served 90 days or less but more than 10 days 03 before the trial began, the offeree shall pay 50 percent of the offeror's reasonable 04 actual attorney fees [OFFEREE IS THE PARTY DEFENDING AGAINST THE 05 CLAIM, THE INTEREST RATE SHALL BE INCREASED BY FIVE PERCENT A 06 YEAR]. 07 * Sec. 22. AS 09.30.065 is amended by adding new subsections to read: 08 (b) If an offeror receives costs and reasonable actual attorney fees under (a) 09 of this section, that offeror shall be considered the prevailing party for purposes of an 10 award of attorney fees under the Alaska Rules of Civil Procedure. Notwithstanding 11 (a) of this section, if the amount awarded an offeror for attorney fees under the Alaska 12 Rules of Civil Procedure is greater than a party would receive under (a) of this section, 13 the offeree shall pay to the offeror attorney fees specified under the Alaska Rules of 14 Civil Procedure and is not required to pay reasonable actual attorney fees under (a) of 15 this section. A party who receives attorney fees under this section may not also 16 receive attorney fees under the Alaska Rules of Civil Procedure. 17 (c) If an offeror makes more than one offer of judgment, the last offer served 18 on the adverse party shall be considered to be a revocation of any prior offer of 19 judgment. 20 * Sec. 23. AS 09.30.070(a) is amended to read: 21 (a) Notwithstanding AS 45.45.010, the [THE] rate of interest on judgments 22 and decrees for the payment of money, including prejudgment interest, is three 23 percentage points above the 12th Federal Reserve District discount rate in effect 24 on January 2 of the year in which the judgment or decree is entered [10.5 25 PERCENT A YEAR], except that a judgment or decree founded on a contract in 26 writing, providing for the payment of interest until paid at a specified rate not 27 exceeding the legal rate of interest for that type of contract, bears interest at the rate 28 specified in the contract if the interest rate is set out in the judgment or decree. 29 * Sec. 24. AS 09.30.070 is amended by adding a new subsection to read: 30 (c) Prejudgment interest may not be awarded for future economic damages, 31 future noneconomic damages, or punitive damages.
01 * Sec. 25. AS 09.50.280 is amended to read: 02 Sec. 09.50.280. Judgment for plaintiff; punitive damages. If judgment is 03 rendered for the plaintiff, it shall be for the legal amount found due from the state with 04 [LEGAL] interest as provided under AS 09.30.070 [FROM THE DATE IT BECAME 05 DUE] and without punitive damages. 06 * Sec. 26. AS 09.55.440(a) is amended to read: 07 (a) Upon the filing of the declaration of taking and the deposit with the court 08 of the amount of the estimated compensation stated in the declaration, title to the estate 09 as specified in the declaration vests in the plaintiff, and that property is condemned 10 and taken for the use of the plaintiff, and the right to just compensation for it vests in 11 the persons entitled to it. The compensation shall be ascertained and awarded in the 12 proceeding and established by judgment. The judgment must include interest at the 13 rate of 10.5 percent a year [SET OUT IN AS 09.30.070] on the amount finally 14 awarded that [WHICH] exceeds the amount paid into court under the declaration of 15 taking. The interest runs from the date title vests to the date of payment of the 16 judgment. 17 * Sec. 27. AS 09.55.535(k) is amended to read: 18 (k) The provisions of AS 09.43.010 - 09.43.180 (Uniform Arbitration Act) 19 apply to arbitrations under this section if they do not conflict with the provisions of 20 this section; arbitrations under this section shall be conducted in accordance with 21 procedures established by any rules of court which may be adopted and according to 22 provisions of AS 09.55.540 - 09.55.547, 09.55.554 - 09.55.560 [AS 09.55.540 - 23 09.55.548 AND AS 09.55.554 - 09.55.560], and AS 09.65.090. 24 * Sec. 28. AS 09.55.536(a) is amended to read: 25 (a) In an action for damages due to personal injury or death based upon 26 the provision of professional services by a health care provider, including a person 27 providing services on behalf of a governmental entity, when the parties have not 28 agreed to arbitration of the claim under AS 09.55.535, the court shall appoint within 29 20 days after filing of answer to a summons and complaint a three-person expert 30 advisory panel unless the court decides that an expert advisory opinion is not necessary 31 for a decision in the case. When the action is filed, the court shall, by order,
01 determine the professions or specialties to be represented on the expert advisory panel, 02 giving the parties the opportunity to object or make suggestions. 03 * Sec. 29. AS 09.55.536(c) is amended to read: 04 (c) Not more than 30 days after selection of the panel, the panel [IT] shall 05 make a written report to the parties and to the court, answering the following questions 06 and other questions submitted to the panel by the court in sufficient detail to explain 07 the case and the reasons for the panel's answers: 08 (1) Why did the claimant seek [WHAT WAS THE DISORDER FOR 09 WHICH THE PLAINTIFF CAME TO] medical care? 10 (2) Was a correct diagnosis made? If not, what was incorrect 11 about the diagnosis [WHAT WOULD HAVE BEEN THE PROBABLE OUTCOME 12 WITHOUT MEDICAL CARE]? 13 (3) Was the treatment or lack of treatment [SELECTED] appropriate? 14 If not, what was inappropriate about the treatment or lack of treatment [FOR 15 THE CASE]? 16 (4) Was the claimant injured during the course of evaluation or 17 treatment or by failure to diagnose or treat [DID AN INJURY ARISE FROM THE 18 MEDICAL CARE]? 19 (5) If the answer to question 4 is "yes," what [WHAT] is the nature 20 and extent of the medical injury? 21 (6) What specifically caused the medical injury? 22 (7) Was the medical injury caused by unskillful care? Explain. 23 (8) If a medical injury had not occurred, what would have been the 24 likely outcome of the medical case [HOW WOULD THE PLAINTIFF'S 25 CONDITION DIFFER FROM THE PLAINTIFF'S PRESENT CONDITION]? 26 * Sec. 30. AS 09.55.536(f) is amended to read: 27 (f) Discovery may not be undertaken in a case until the report of the expert 28 advisory panel is received or 60 days after selection of the panel, whichever occurs 29 first. However, the court may relax this prohibition upon a showing of good cause by 30 any party. If the panel has not completed its report within the 30-day period 31 prescribed in (c) of this section, the court may, upon application, grant the panel [IT]
01 an additional 30 days. 02 * Sec. 31. AS 09.55.536 is amended by adding a new subsection to read: 03 (i) This section applies regardless of whether a party in the action or the health 04 care provider whose professional services are the subject of the action is a 05 governmental entity or in the public or private sector. 06 * Sec. 32. AS 09.55.560(1) is amended to read: 07 (1) "health care provider" means an acupuncturist licensed under 08 AS 08.06; an audiologist licensed under AS 08.11; a chiropractor licensed under 09 AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under 10 AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under 11 AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under 12 AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational 13 therapist licensed under AS 08.84; a physician licensed under AS 08.64; a podiatrist; 14 a psychologist and a psychological associate licensed under AS 08.86; [AND] a 15 hospital as defined in AS 18.20.130, including a governmentally owned or operated 16 hospital; [AND] an employee of a health care provider acting within the course and 17 scope of employment; an ambulatory surgical facility and other organizations 18 whose primary purpose is the delivery of health care, including a health 19 maintenance organization, individual practice association, integrated delivery 20 system, preferred provider organization or arrangement, and a physical hospital 21 organization. 22 * Sec. 33. AS 09.55.560 is amended by adding new paragraphs to read: 23 (4) "professional negligence" means a negligent act or omission by a 24 health care provider in rendering professional services; 25 (5) "professional services" means service provided by a health care 26 provider that is within the scope of services for which the health care provider is 27 licensed and that is not prohibited under the health care provider's license or by a 28 facility in which the health care provider practices. 29 * Sec. 34. AS 09.60 is amended by adding a new section to read: 30 Sec. 09.60.080. Contingent fee agreements. If an attorney contracts for or 31 collects a contingency fee in connection with an action for personal injury, death, or
01 property damage and the damages awarded by a court or jury include an award of 02 punitive damages, the contingent fee due the attorney shall be calculated after that 03 portion of punitive damages due the state under AS 09.17.020(d) has been deducted 04 from the total award of damages. 05 * Sec. 35. AS 09.65 is amended by adding a new section to read: 06 Sec. 09.65.096. Civil liability of hospitals for certain physicians. (a) A 07 hospital is not liable for civil damages as a result of an act or omission by an 08 emergency room physician who is not an employee or actual agent of the hospital if 09 the hospital provides notice that the emergency room physician is an independent 10 contractor and the emergency room physician is insured as described under (c) of this 11 section. The hospital is responsible for exercising reasonable care in granting 12 privileges to practice in the hospital, for reviewing those privileges on a regular basis, 13 and for taking appropriate steps to revoke or restrict privileges in appropriate 14 circumstances. The hospital is not otherwise liable for the acts or omissions of an 15 emergency room physician who is an independent contractor. The notice required by 16 this subsection must be posted conspicuously in all admitting areas of the hospital, 17 published at least annually in a newspaper of general circulation in the area, and must 18 be in substantially the following form: 19 Notice of Limited Liability 20 The following emergency room physicians are independent 21 contractors and are not employees of the hospital: 22 (List specific emergency room physicians) 23 (b) This section does not preclude liability for civil damages that are the 24 proximate result of the hospital's negligence or intentional misconduct. 25 (c) A hospital is not immune from liability under (a) of this section for an act 26 or omission of an emergency room physician who is an independent contractor unless 27 the emergency room physician has liability insurance coverage in the amount of at 28 least $500,000 for each incident and the coverage is in effect and applicable to those 29 health care services offered by the emergency room physician that the hospital is 30 required to provide by law or by accreditation requirements. 31 (d) In this section,
01 (1) "emergency room physician" means a physician who provides health 02 care services in a hospital emergency room; 03 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 04 governmentally owned or operated hospital; 05 (3) "independent contractor" means an emergency room physician who 06 is not an employee or actual agent of the hospital in connection with the rendition of 07 the health care services. 08 * Sec. 36. AS 09.65.210 is repealed and reenacted to read: 09 Sec. 09.65.210. Damages resulting from commission of a felony or while 10 under the influence of alcohol or drugs. A person who suffers personal injury or 11 death or the person's personal representative under AS 09.55.570 or 09.55.580 may not 12 recover damages for the personal injury or death if the injury or death occurred while 13 the person was 14 (1) engaged in the commission of a felony, the person has been 15 convicted of the felony, including conviction based on a guilty plea or plea of nolo 16 contendere, and the felony substantially contributed to the personal injury or death; 17 (2) engaged in conduct that would constitute the commission of an 18 unclassified felony, a class A, or a class B felony for which the person was not 19 convicted and the conduct 20 (A) substantially contributed to the personal injury or death; and 21 (B) is proven by the defendant in the civil trial by clear and 22 convincing evidence; 23 (3) fleeing after the commission, by that person, of conduct that would 24 constitute an unclassified felony, a class A felony, or a class B felony or being 25 apprehended for conduct that would constitute an unclassified felony, a class A felony, 26 or a class B felony if the conduct 27 (A) during the flight or apprehension substantially contributed 28 to the injury or death; and 29 (B) is proven by the defendant in the civil trial by clear and 30 convincing evidence; 31 (4) operating a vehicle, aircraft, or watercraft while under the influence
01 of intoxicating liquor or any controlled substance in violation of AS 28.35.030, was 02 convicted, including conviction based on a guilty plea or plea of nolo contendere, and 03 the conduct substantially contributed to the personal injury or death; or 04 (5) engaged in conduct that would constitute a violation of 05 AS 28.35.030 for which the person was not convicted if the conduct substantially 06 contributed to the personal injury or death and the conduct is proven by the defendant 07 in the civil trial by clear and convincing evidence. 08 * Sec. 37. AS 09.68 is amended by adding a new section to read: 09 Sec. 09.68.130. Collection of settlement information. (a) Except as 10 provided in (c) of this section, the Alaska Judicial Council shall collect and evaluate 11 information relating to the compromise or other settlement of all civil litigation. The 12 information, including the case name and file number, a general description of the 13 claims being settled, the dollar amount of the settlement, to whom the settlement was 14 paid, and any nonmonetary terms, shall be collected on a form developed by the 15 council for that purpose. 16 (b) The information received by the council under (a) of this section is 17 confidential. This restriction does not prevent the disclosure of summaries and 18 statistics in a manner that does not allow the identification of particular cases or 19 parties. 20 (c) The requirements of (a) of this section do not apply to the following types 21 of cases: 22 (1) divorce and dissolution; 23 (2) adoption, custody, support, visitation, and emancipation of children; 24 (3) children-in-need-of-aid cases under AS 47.10 or delinquent minors 25 cases under 47.12; 26 (4) domestic violence protective orders under AS 18.66.100 - 27 18.66.180; 28 (5) estate, guardianship, and trust cases filed under AS 13; 29 (6) small claims under AS 22.15.040. 30 * Sec. 38. AS 21.06 is amended by adding a new section to read: 31 Sec. 21.06.087. Insurance report. (a) The director shall require reporting of
01 and shall compile information necessary to evaluate the effect of the measures enacted 02 in this Act on the availability and cost of insurance in the state. 03 (b) Information described in (a) of this section shall be provided by all insurers 04 doing business in this state in the format specified by the director and must include 05 factual information stating premiums, claims, losses, expenses, and solvency of the 06 company as a whole. Information shall be compiled by the division in a way that 07 protects the identity of individual insureds. 08 (c) The director shall adopt regulations to implement and interpret this section, 09 including requiring insurers doing business in the state to provide information 10 necessary for the division to carry out its responsibilities under (a) and (b) of this 11 section. If there are indications of market disruption, the director may waive all or 12 part of the reporting requirements in this section. 13 (d) Beginning June 1, 2000, the information compiled under (a) of this section 14 shall be reported annually to the governor and the judiciary committees of both houses 15 of the legislature. 16 (e) The division may consult with the Alaska Judicial Council when 17 determining what information to require to be reported under (a) - (c) of this section 18 and when implementing the compilation required under (a) of this section. 19 * Sec. 39. AS 21.89.100(d) is amended to read: 20 (d) If the insured selects independent counsel at the insurer's expense, the 21 insurer may require that the independent counsel have at least four years of experience 22 in civil litigation, including defense experience in the general subject area at issue in 23 the civil action, and malpractice insurance. Unless otherwise provided in the insurance 24 policy, the obligation of the insurer to pay the fee charged by the independent counsel 25 is limited to the rate that is actually paid by the insurer to an attorney in the ordinary 26 course of business in the defense of a similar civil action in the community in which 27 the claim arose or is being defended. In providing independent counsel, the insurer 28 is not responsible for the fees and costs of defending an allegation for which 29 coverage is properly denied and shall be responsible only for the fees and costs 30 to defend those allegations for which the insurer either reserves its position as to 31 coverage or accepts coverage. The independent counsel shall keep detailed
01 records allocating costs accordingly. A dispute between the insurer and insured 02 regarding attorney fees that is not resolved by the insurance policy or this section shall 03 be resolved by arbitration under AS 09.43. 04 * Sec. 40. AS 21.89.100 is amended by adding a new subsection to read: 05 (h) When an insured is represented by independent counsel, the insurer may 06 settle directly with the plaintiff if the settlement includes all claims based upon the 07 allegations for which the insurer previously reserved its position as to coverage or 08 accepted coverage, regardless of whether the settlement extinguishes all claims against 09 the insured. 10 * Sec. 41. AS 23.30.015(g) is amended to read: 11 (g) If the employee or the employee's representative recovers damages from 12 the third person, the employee or representative shall promptly pay to the employer the 13 total amounts paid by the employer under (e)(1)(A) - (C) [(e)(1)(A), (B), AND (C)] 14 of this section [,] insofar as the recovery is sufficient after deducting all litigation costs 15 and expenses. Any excess recovery by the employee or representative shall be 16 credited against any amount payable by the employer thereafter. If the employer is 17 allocated a percentage of fault under AS 09.17.080, the amount due the employer 18 under this subsection shall be reduced by an amount equal to the employer's 19 equitable share of damages assessed under AS 09.17.080(c). 20 * Sec. 42. AS 44.77.015(a) is amended to read: 21 (a) For the purposes of filing claims for medical services provided under 22 AS 47.07 or AS 47.25.120 - 47.25.300, "promptly," in AS 44.77.010(a), means (1) 23 within six months after the date of service, or as provided in (b) of this section, if 24 there is no third-party claim, or (2) within 12 months after the date of service if there 25 is a third-party claim. Except as provided in (c) of this section, a claim may not be 26 paid if it is not filed promptly; an inference to the contrary may not be drawn from 27 AS 09.10.053 [AS 09.10.050], AS 09.50.250 - 09.50.300, or AS 37.25.010. 28 * Sec. 43. Rule 16.1(c), Alaska Rules of Civil Procedure, is amended to read: 29 (c) Motion to Set Trial and Certificate. Unless otherwise ordered by the 30 court, a [A] motion to set trial may not be filed until after the meeting of parties 31 under (n) of this rule has occurred and the scheduling order under Rule 16(b) has
01 been issued [105 DAYS AFTER SERVICE OF THE SUMMONS AND 02 COMPLAINT]. A party seeking to obtain a trial date must serve and file a motion to 03 set trial together with a certificate, signed by counsel, stating: 04 (1) That the issues in the case have actually been joined; 05 (2) That all parties have completed discovery or have a reasonable 06 opportunity to do so within the next 60 days; 07 (3) That the procedure for listing witnesses and exhibits and providing 08 exhibit copies, as set forth in [PARAGRAPH] (d) of this rule has been completed; 09 (4) Whether trial by jury has been timely demanded; 10 (5) The estimated number of days for the trial, including estimates for 11 each party's case and for jury selection; 12 (6) The names, addresses and telephone numbers of all attorneys and 13 pro se parties who are responsible for the conduct of the litigation; 14 (7) Which, if any, statute or rule entitles the case to preference on the 15 trial calendar; 16 (8) That the parties have complied with [PARAGRAPH] (k) of this 17 rule. 18 * Sec. 44. Rule 16.1(n), Alaska Rules of Civil Procedure, is repealed and reenacted to read: 19 (n) Meeting of Parties. Except when otherwise ordered, the parties shall, as 20 soon as practicable after the exchange of initial disclosures required under Rule 21 26(a)(1) and in any event at least 14 days before a scheduling conference is held or 22 a scheduling order is due under Rule 16(b), meet to discuss the nature and basis of 23 their claims and defenses and the possibilities for a prompt settlement of the case and 24 to develop a proposed discovery plan. The attorneys of record and all unrepresented 25 parties that have appeared in the case are jointly responsible for arranging and being 26 present or represented at the meeting, for attempting in good faith to agree on the 27 proposed discovery plan, and for submitting to the court within 10 days after the 28 meeting a written report outlining the proposed discovery plan. The proposed 29 discovery plan shall indicate the parties' views and proposals concerning 30 (1) what changes should be made in the timing or forms of subsequent 31 disclosures under the rules, including a statement as to when the disclosures required
01 under Rule 26(a) were made; 02 (2) the subjects on which discovery may be needed, when discovery 03 should be completed, and whether discovery should be conducted in phases or be 04 limited to or focused upon particular issues; 05 (3) what changes should be made in the limitations on discovery 06 imposed under these rules and what other limitations should be imposed; 07 (4) whether a scheduling conference is unnecessary; 08 (5) whether there will be dispositive or partially dispositive motions 09 filed in the case and whether other deadlines should be set aside pending resolution of 10 the dispositive or partially dispositive motions by the court; and 11 (6) any other orders that should be entered by the court under Civil 12 Rule 16(b) and (c). 13 * Sec. 45. Rule 41(a), Alaska Rules of Civil Procedure, is amended by adding a new 14 paragraph to read: 15 (3) Settlement Information. If a voluntary dismissal under this rule 16 is the result of compromise or other settlement of the parties, the parties shall submit 17 to the Alaska Judicial Council the information required under AS 09.68.130. A notice 18 of dismissal made under (1)[a] of this subsection must be accompanied by a 19 certification signed by or on behalf of the plaintiff that the information required under 20 AS 09.68.130 has been submitted to the Alaska Judicial Council. A stipulation of 21 dismissal made under (1)[b] of this subsection must be accompanied by a certification 22 signed by or on behalf of all parties who have appeared in the action. The 23 requirements of this paragraph do not apply to the types of cases listed in 24 AS 09.68.130(c). 25 * Sec. 46. Rule 72.1(g), Alaska Rules of Civil Procedure, is amended to read: 26 (g) Discovery. Except by leave of court, no discovery may be conducted until 27 the report of the Panel has been filed or until 60 [80] days after selection of the Panel 28 [HAVE ELAPSED FROM THE DATE THE CASE IS AT ISSUE], whichever is first 29 to occur, unless discovery is further stayed for good cause by order of the court. 30 * Sec. 47. Rule 95(b), Alaska Rules of Civil Procedure, is amended to read: 31 (b) In addition to its authority under (a) of this rule and its power to punish
01 for contempt, a court may, after reasonable notice and an opportunity to show cause 02 to the contrary, and after hearing by the court, if requested, impose a fine not to 03 exceed $10,000.00 [$1,000.00] against any attorney who practices before it for failure 04 to comply with these rules or any rules promulgated by the supreme court. 05 * Sec. 48. Rule 95, Alaska Rules of Civil Procedure, is amended by adding a new 06 subsection to read: 07 (c) If the trier of fact determines that a party to a civil action has intentionally 08 made a false statement of a material fact in connection with the prosecution or defense 09 of a civil action, the court shall enter judgment against the party making the false 10 statement on the issue to which the false statement relates. If the civil action involves 11 multiple claims and the false statement does not apply to all claims, the judgment 12 required under this subsection shall apply only to those claims to which the false 13 statement relates. 14 * Sec. 49. Rule 511, Alaska Rules of Appellate Procedure, is amended by adding a new 15 subsection to read: 16 (e) Settlement Information. If a dismissal under (a) or (b) of this rule is the 17 result of compromise or other settlement between the parties, the parties shall submit 18 to the Alaska Judicial Council the information required under AS 09.68.130. A 19 dismissal by agreement under (a) of this rule must be accompanied by a certification 20 signed by the attorneys of record for all parties that the information required under 21 AS 09.68.130 has been submitted to the Alaska Judicial Council. A dismissal by the 22 appellant or petitioner made under (b) of this rule must be accompanied by a 23 certification signed by the appellant's or petitioner's attorney of record. The 24 requirements of this subsection do not apply to the types of cases listed in 25 AS 09.68.130(c). 26 * Sec. 50. Rule 16.1(k)(4), Alaska Rules of Civil Procedure, is repealed. 27 * Sec. 51. AS 09.55.548 is repealed. 28 * Sec. 52. AS 09.17.020(d), as enacted by sec. 10 of this Act, has the effect of amending 29 Rule 58, Alaska Rules of Civil Procedure, by requiring the court to require that a certain 30 percentage of an award of punitive damages be deposited into the general fund. 31 * Sec. 53. AS 09.17.040(a), as amended by sec. 11 of this Act, has the effect of amending
01 Rule 58, Alaska Rules of Civil Procedure, by requiring the court to reduce an award of 02 damages by certain tax rates in effect on the date of injury or death if taxable. 03 * Sec. 54. AS 09.17.040(d), as amended by sec. 12 of this Act, has the effect of amending 04 Rule 58, Alaska Rules of Civil Procedure, by requiring that certain judgments be paid 05 periodically if requested by a party, with a lump sum payment for certain attorney fees. 06 * Sec. 55. AS 09.17.040(e), as amended by sec. 13 of this Act, has the effect of amending 07 Rule 58, Alaska Rules of Civil Procedure, by imposing certain requirements when a judgment 08 is paid by periodic payments. 09 * Sec. 56. AS 09.17.040(f), as amended by sec. 14 of this Act, has the effect of amending 10 Rule 58, Alaska Rules of Civil Procedure, by requiring that certain judgments include any 11 increases for future inflation. 12 * Sec. 57. AS 09.17.080(a), as amended by sec. 16 of this Act, has the effect of amending 13 Rule 49, Alaska Rules of Civil Procedure, by requiring the jury to answer the special 14 interrogatory listed in AS 09.17.080(a)(2) regarding the percentages of fault to be allocated 15 among the claimants, defendants, third-party defendants, persons who have been released from 16 liability, or other person who is responsible for the damages. 17 * Sec. 58. AS 09.20.185, enacted by sec. 20 of this Act, has the effect of amending 18 Rule 702, Alaska Rules of Evidence, by requiring certain qualifications from a person 19 testifying as an expert witness. 20 * Sec. 59. AS 09.30.065, as amended by secs. 21 and 22 of this Act, has the effect of 21 amending Rule 68, Alaska Rules of Civil Procedure, by requiring the offeree to pay costs and 22 reasonable actual attorney fees on a sliding scale of percentages in certain cases, by 23 eliminating provisions relating to interest and by providing that a subsequent offer revokes 24 prior offers. 25 * Sec. 60. AS 09.30.070(c), added by sec. 24 of this Act, has the effect of amending 26 Rule 58, Alaska Rules of Civil Procedure, by providing that prejudgment interest may not be 27 awarded for future economic or noneconomic damages. 28 * Sec. 61. ALTERNATIVE DISPUTE RESOLUTION. (a) It is the intent of this 29 legislation to create a pilot alternative dispute resolution procedure within the existing civil 30 litigation system in order to promote the timely, inexpensive, and efficient resolution of civil 31 disputes.
01 (b) The Alaska Judicial Council shall consult with the Alaska Dispute Settlement 02 Association, review court sanctioned alternative dispute resolution programs in other states and 03 in the federal court system, and make recommendations to assist the legislature and the Alaska 04 Court System in the establishment of a pilot program for alternative dispute resolution within 05 the Alaska Court System. The Alaska Judicial Council shall submit a written report to the 06 legislature and to the Alaska Supreme Court within six months after the effective date of this 07 Act. The report must include specific types of programs, specific types of cases within each 08 program that are amenable to alternative dispute resolution, the cost to the parties and to the 09 Alaska Court System under these programs, and the qualifications of the neutral parties, 10 including nonlawyers, who will provide dispute resolution services under the program. 11 (c) In this section, "alternative dispute resolution" is limited to arbitration, mediation, 12 and early neutral evaluation. 13 * Sec. 62. APPLICABILITY. This Act applies to all causes of action accruing on or after 14 the effective date of this Act. 15 * Sec. 63. SEVERABILITY. Under AS 01.10.030, if any provision of this Act or the 16 application of a provision of this Act to any person or circumstance is held invalid, the 17 remainder of this Act and the application to other persons shall not be affected. 18 * Sec. 64. This Act takes effect July 1, 1997.