Legislature(1995 - 1996)

1996-05-01 Senate Journal

Full Journal pdf

1996-05-01                     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.