Legislature(1995 - 1996)
1996-05-01 Senate Journal
Full Journal pdf1996-05-01 Senate Journal Page 3772 HB 158 SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) An Act relating to civil actions; amending Rules 13(e), 68, 79(b), 82(b), and 95, Alaska Rules of Civil Procedure which had been held (page 3725) was read the third time. Amendment No. 4 was not offered. Senator Miller moved that the bill be returned to second reading for the purpose of a specific amendment, that being Amendment No. 5. Without objection, the bill was returned to second reading. Senator Miller offered Amendment No. 5 : Page 14, line 12: Delete "nonparty" Insert "party attorney" Page 14, line 14: Delete "representative of a party" Insert "party's attorney" Page 15, line 1, add a new subsection: (h) Neither the state, nor an agent or employee of the state acting within the scope of that agency or employment, is subject to liability under this section. 1996-05-01 Senate Journal Page 3773 HB 158 Senator Miller moved for the adoption of Amendment No. 5. Senator Adams objected. The question being: Shall Amendment No. 5 be adopted? The roll was taken with the following result: SCS CSHB 158(RLS) Second Reading Amendment No. 5 YEAS: 12 NAYS: 8 EXCUSED: 0 ABSENT: 0 Yeas: Frank, Green, Halford, Kelly, Leman, Miller, Pearce, R.Phillips, Rieger, Sharp, Taylor, Torgerson Nays: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Salo, Zharoff and so, Amendment No. 5 was adopted. SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) am S was automatically in third reading. Senator Rieger moved and asked unanimous consent that the Senate return to second reading for the purpose of rescinding its previous action in failing to adopt Amendment No. 3 (page 3664). Without objection, it was so ordered. Senator Rieger moved that the Senate rescind its previous action in failing to adopt Amendment No. 3. Without objection, the Senate rescinded its previous action. The question being: Shall Amendment No. 3 be adopted? The roll was taken with the following result: 1996-05-01 Senate Journal Page 3774 HB 158 SCS CSHB 158(RLS) am S Second Reading Amendment No. 3 YEAS: 11 NAYS: 9 EXCUSED: 0 ABSENT: 0 Yeas: Frank, Green, Halford, Kelly, Leman, Miller, Pearce, R.Phillips, Rieger, Sharp, Torgerson Nays: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Salo, Taylor, Zharoff and so, Amendment No. 3 was adopted. SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) am S was automatically in third reading. Amendment No. 6 was not offered. Senator Phillips moved that the bill be returned to second reading for the purpose of a specific amendment, that being Amendment No. 7. Without objection, the bill was returned to second reading. Senator Phillips offered Amendment No. 7 : Page 1, line 2, following "Procedure": Insert "; and providing for an effective date" Page 5, following line 18: Insert a new bill section to read: "* Sec. 4. AS09.10.055 is repealed and reenacted to read: Sec. 09.10.055. STATUTE OF REPOSE FOR IMPROVEMENTS TO REAL PROPERTY. (a) Notwithstanding AS09.10.140, a person may not bring an action for personal injury, death, or property damage, if the action is based on a defect in the design, planning, supervision, construction, or inspection or observation of construction of an improvement to real property unless the action is brought within 15 years of the date of substantial completion of the improvement. 1996-05-01 Senate Journal Page 3775 HB 158 (b) Notwithstanding (a) of this section, if personal injury, death, or property damage occurs in the 15th year after substantial completion of the improvement, a person may bring a negligence action to recover damages if the negligence action is brought within one year after the date on which the personal injury, death, or property damage occurs. (c) This section does not apply (1) to an action against a person who was in actual possession and lawful control of the improvement at the time the defect caused the personal injury, death, or property damage; (2) if the personal injury, death, or property damage was caused intentionally or resulted from gross negligence, fraud, fraudulent concealment, fraudulent misrepresentation, or breach of an express warranty or guarantee; or (3) if a longer period of time for bringing the action was provided under a contract. (d) In this section, "substantial completion" means the date when construction is sufficiently completed to allow the owner or a person authorized by the owner to occupy the improvement or use the improvement in the manner for which it was intended." Renumber the following bill sections accordingly. Page 5, following line 28: Insert a new bill section to read: "* Sec. 6. AS09.10.070 is repealed and reenacted to read: Sec. 09.10.070. ACTIONS FOR TORTS AND CERTAIN STATUTORY LIABILITIES TO BE BROUGHT IN TWO YEARS. A person may not bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise; (2) upon a statute for a forfeiture or penalty to the state; or (3) upon a liability created by statute, other than a penalty or forfeiture, unless the action is commenced within two years." Renumber the following bill sections accordingly. 1996-05-01 Senate Journal Page 3776 HB 158 Page 7, following line 2: Insert a new bill section to read: "* Sec. 9. AS09.17.010 is repealed and reenacted to read: Sec. 09.17.010. NONECONOMIC DAMAGES. (a) In an action to recover damages for personal injury based on negligence, damages for noneconomic losses shall be limited to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, and other nonpecuniary damage. (b) The amount of damages awarded by a court or a jury under (a) of this section may not exceed $500,000 for each claim based on a separate incident or injury. (c) The limit under (b) of this section does not apply to damages for disfigurement or severe physical impairment." Renumber the following bill sections accordingly. Page 7, following line 7: Insert a new bill section to read: "* Sec. 11. AS09.17.020 is repealed and reenacted to read: Sec. 09.17.020. PUNITIVE DAMAGES. Punitive damages may not be awarded in an action, whether in tort, contract, or otherwise, unless supported by clear and convincing evidence." Renumber the following bill sections accordingly. Page 7, following line 29: Insert a new bill section to read: "* Sec. 14. AS09.17.040(e) is repealed and reenacted to read: (e) The court may require security be posted in order to ensure that funds are available as periodic payments become due. The court may not require security to be posted if an authorized insurer, as defined in AS21.90.900, acknowledges to the court its obligation to discharge the judgment." Renumber the following bill sections accordingly. 1996-05-01 Senate Journal Page 3777 HB 158 Page 8, following line 11: Insert a new bill section to read: "* Sec. 16. AS09.17.040(f) is repealed and reenacted to read: (f) A judgment ordering payment of future damages by periodic payment shall specify the recipient, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Payments may be modified only in the event of the death of the judgment creditor, in which case payments may not be reduced or terminated, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately before death. In the event the judgment creditor owed no duty of support to dependents at the time of the judgment creditor's death, the money remaining shall be distributed in accordance with a will of the deceased judgment creditor accepted into probate or under the intestate laws of the state if the deceased had no will." Renumber the following bill sections accordingly. Page 8, following line 25: Insert a new bill section to read: "* Sec. 18. AS09.17.080(a) is repealed and reenacted to read: (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability." Renumber the following bill sections accordingly. 1996-05-01 Senate Journal Page 3778 HB 158 Page 9, following line 5: Insert a new bill section to read: "* Sec. 20. AS09.17.080(c) is repealed and reenacted to read: (c) The court shall determine the award of damages to each claimant in accordance with the findings, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault." Renumber the following bill sections accordingly. Page 9, following line 29: Insert a new bill section to read: "* Sec. 23. AS09.30.065 is repealed and reenacted to read: Sec. 09.30.065. OFFERS OF JUDGMENT. At any time more than 10 days before the trial begins either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service, and the clerk shall enter judgment. An offer not accepted within 10 days is considered withdrawn and evidence of that offer is not admissible except in a proceeding to determine the form of judgment after verdict. If the judgment finally entered on the claim as to which an offer has been made under this section is not more favorable to the offeree than the offer, the interest awarded under AS09.30.070 and accrued up to the date judgment is entered shall be adjusted as follows: (1) if the offeree is the party making the claim, the interest rate shall be reduced by five percent a year; (2) if the offeree is the party defending against the claim, the interest rate shall be increased by five percent a year." Renumber the following bill sections accordingly. 1996-05-01 Senate Journal Page 3779 HB 158 Page 10, following line 7: Insert a new bill section to read: "* Sec. 25. AS09.30.070(a) is repealed and reenacted to read: (a) The rate of interest on judgments and decrees for the payment of money is 10.5 percent a year, except that a judgment or decree founded on a contract in writing, providing for the payment of interest until paid at a specified rate not exceeding the legal rate of interest for that type of contract, bears interest at the rate specified in the contract if the interest rate is set out in the judgment or decree." Renumber the following bill sections accordingly. Page 15, following line 12: Insert a new bill section to read: "* Sec. 32. AS09.65.210 is repealed and reenacted to read: Sec. 09.65.210. DAMAGES RESULTING FROM COMMISSION OF A FELONY. A person who suffers personal injury or death may not recover damages for the personal injury or death if the injuries or death occurred while the person was engaged in the commission of a felony, the person has been convicted of the felony, including conviction based on a guilty plea or plea of nolo contendere, and the felony substantially contributed to the injury or death. This section does not affect a right of action under 42 U.S.C. 1983." Renumber the following bill sections accordingly. Page 16, following line 5: Insert a new bill section to read: "* Sec. 34. AS05.50; AS09.10.075; AS09.17.020(b), 09.17.020(c), 09.17.020(d), 09.17.091; AS09.55.551, 09.55.560(4), 09.55.700; AS09.65.096, 09.65.190; and AS09.68.125 are repealed." Renumber the following bill sections accordingly. Page 16, line 6: Delete "sec. 14" Insert "secs. 22 and 23" 1996-05-01 Senate Journal Page 3780 HB 158 Page 16, line 9: Delete "sec. 18" Insert "sec. 28" Page 16, line 12: Delete "sec. 18" Insert "sec. 28" Page 16, line 15: Delete "sec. 20" Insert "sec. 30" Page 16, line 18: Delete "sec. 20" Insert "sec. 30" Page 16, line 21: Delete "sec. 22" Insert "sec. 33" Page 16, line 27: Delete "Sections 7 and 8" Insert "Sections 10 and 12" Page 16, line 28, following "of": Insert "secs. 10 and 12 of" Page 16, line 29: Following "date": Insert "of secs. 10 and 12" Delete "secs. 7 and 8 of this Act, this" Insert "secs. 10 and 12 of this Act, each section of this" Page 16, line 30, following "date": Insert "of that section" 1996-05-01 Senate Journal Page 3781 HB 158 Page 16, following line 30: Insert new bill sections to read: "* Sec. 43. Sections 4, 6, 9, 11, 14, 16, 18, 20, 23, 25, 32, and 34 of this Act take effect only if the director of the division of insurance fails to certify to the revisor of statutes on or before June 30, 2001, that the liability insurance rates filed with the division of insurance on July 1, 1996, have been reduced by at least 10 percent as of June1, 2001. The director of the division of insurance shall promptly certify to the revisor of statutes if liability insurance rates decrease by 10 percent or more as described under this section. In this section, "liability insurance" has the meaning given in AS21.12.070(a)(2). * Sec. 44. If secs. 4, 6, 9, 11, 14, 16, 18, 20, 23, 25, 32, and 34 of this Act take effect, they take effect July1, 2001." Senator Phillips moved for the adoption of Amendment No. 7. Objections were heard. The question being: Shall Amendment No. 7 be adopted? The roll was taken with the following result: SCS CSHB 158(RLS) am S Second Reading Amendment No. 7 YEAS: 9 NAYS: 11 EXCUSED: 0 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Lincoln, R.Phillips, Salo, Taylor, Zharoff Nays: Frank, Green, Halford, Hoffman, Kelly, Leman, Miller, Pearce, Rieger, Sharp, Torgerson and so, Amendment No. 7 failed. SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) am S was automatically in third reading. Senator Phillips moved that the bill be returned to second reading for the purpose of a specific amendment, that being Amendment No. 8. Without objection, the bill was returned to second reading. 1996-05-01 Senate Journal Page 3782 HB 158 Senator Phillips offered Amendment No. 8 : Page 16, following line 23: Insert a new bill section to read: "* Sec. 29. REPORT. The director of the division of insurance shall determine the effects of this Act on the liability insurance rates in this state and shall present a report of the director's findings to the legislature by January 1, 1998. In this section, "liability insurance" has the meaning given in AS 21.12.070(a)(2)." Renumber the following bill sections accordingly. Senator Phillips moved for the adoption of Amendment No. 8. Without objection, Amendment No. 8 was adopted. SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) am S was automatically in third reading. The question being: Shall SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) am S An Act relating to civil actions; amending Rules 13(e), 68, 79(b), 82(b), and 95, Alaska Rules of Civil Procedure pass the Senate? The roll was taken with the following result: SCS CSHB 158(RLS) am S Third Reading - Final Passage YEAS: 11 NAYS: 9 EXCUSED: 0 ABSENT: 0 Yeas: Frank, Green, Halford, Kelly, Leman, Miller, Pearce, R.Phillips, Rieger, Sharp, Torgerson Nays: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Salo, Taylor, Zharoff and so, SENATE CS FOR CS FOR HOUSE BILL NO. 158(RLS) passed the Senate. 1996-05-01 Senate Journal Page 3783 HB 158 Senator Halford moved for the adoption of the Court Rule changes. The question being: Shall the Court Rule changes be adopted? The roll was taken with the following result: SCS CSHB 158(RLS) am S Adopt Court Rule Changes? YEAS: 11 NAYS: 9 EXCUSED: 0 ABSENT: 0 Yeas: Frank, Green, Halford, Kelly, Leman, Miller, Pearce, R.Phillips, Rieger, Sharp, Torgerson Nays: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Salo, Taylor, Zharoff and so, the Court Rule changes failed. Senator Phillips gave notice of reconsideration.