Legislature(1997 - 1998)
1997-04-16 Senate Journal
Full Journal pdf1997-04-16 Senate Journal Page 1169 HB 58 CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58(FIN) am 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; and amending Rule 511, Alaska Rules of Appellate Procedure was read the second time. Senator Kelly called the Senate. The call was satisfied. Senator Kelly moved and asked unanimous consent for the adoption of the Rules Senate Committee Substitute offered on page 1166. Senator Duncan objected, then withdrew his objection. There being no further objections, SENATE CS FOR CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58(RLS) An Act relating to civil actions; relating to independent counsel provided under an insurance policy; relating to attorney fees; amending Rules 16.1, 26, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rules 1 and 4, District Court Rules of Civil Procedure; amending Rule 702, Alaska Rules of Evidence; and amending Rule 511, Alaska Rules of Appellate Procedure (technical title change) was adopted and read the second time. Senator Donley offered Amendment No. 1 : Page 15, lines 26 - 31: Delete all material. Insert "this subsection must (1) be posted conspicuously in all admitting areas of the hospital; (2) consist of a sign at least two feet high and two feet wide, with print at least two inches high; (3) be published at least annually in a newspaper of general circulation in the area; and (4) be in substantially the following form: 1997-04-16 Senate Journal Page 1170 HB 58 Notice to Hospital Users and Notice of Limited Liability (Name of hospital) may not be responsible for the actions of emergency room physicians in (name of hospital's emergency room). The following emergency room physicians are independent contractors and are not employees of the hospital:" Senator Donley moved for the adoption of Amendment No. 1. Objections were heard. The question being: Shall Amendment No. 1 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) Second Reading Amendment No. 1 YEAS: 13 NAYS: 5 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Halford, Hoffman, Lincoln, Parnell, Pearce, Phillips, Torgerson, Ward, Wilken Nays: Green, Kelly, Leman, Miller, Sharp Excused: Mackie, Taylor and so, Amendment No. 1 was adopted. Senator Donley offered Amendment No. 2 : Page 16, line 7: Delete $500,000 Insert $1,000,000 Delete $1,500,000 Insert $2,000,000 Senator Donley moved for the adoption of Amendment No. 2. Objections were heard. 1997-04-16 Senate Journal Page 1171 HB 58 The question being: Shall Amendment No. 2 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 2 YEAS: 6 NAYS: 12 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln Nays: Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 2 failed. Senator Adams offered Amendment No. 3 : Page 10, line 17, after the word judgment. Insert: a. Prior to commencement of an Action: Upon receipt of a written offer of final settlement, prior to filing a complaint, in the form of an Offer of Judgment, pursuant to Alaska Civil Rule 68, an insurance company shall make payment of all monetary amounts, if any, due the offeror within 90 days of receipt of the written offer. If the judgment entered on the claim to which payment was made under this section is at least 10% greater than the insurance company payment, the insurance company shall pay all actual costs and the reasonable actual attorneys fees incurred by the offeror from the date the offer was made through judgment or the termination of action. This section is in addition to any other remedy held by an insured or offeror specified in statute or common law. b. After Commencement of an Action: Senator Adams moved for the adoption of Amendment No. 3. Senator Leman objected. 1997-04-16 Senate Journal Page 1172 HB 58 The question being: Shall Amendment No. 3 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 3 YEAS: 6 NAYS: 12 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln Nays: Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 3 failed. Senators Adams, Ellis, Duncan, Lincoln, Hoffman offered Amendment No. 4 : Sec.___AS__.__.__ is amended to add a new section to read: Sec.___. Insurance rates to be rolled back. (a) With the exception of wet marine insurance, all policies issued or renewed in Alaska after January 1, 1998 shall reflect a 5% reduction in premiums charged per unit of coverage. (b) No rate or premium increase will be allowed for a policy sold in the State of Alaska after January 1, 1998 without application to the director, division of insurance, Department of Commerce and Economic Development. (c) Before any rate increase may be approved the director shall conduct a hearing, the date, time and place of which shall be noticed in the Alaska Bar Rag and in at least one other newspaper of general circulation within the state no less than 60 days before commencement of the hearing. In addition the notice shall summarize the particulars of the requested rate increase. At the directors discretion, costs associated with this procedure may be charged to the carrier requesting the rate or premium increase. 1997-04-16 Senate Journal Page 1173 HB 58 (d) Upon application of any interested person or entity to intervene in these proceedings, the director shall allow such intervention. The director may order discovery and shall allow any interested person or entity, once having intervened in the proceeding, discovery as to issues relevant to the proceeding and consistent with the definition and scope of discover as set forth in the Alaska Rules of Civil Procedure. No hearing shall take place until the requesting carrier has fully complied with discovery requests submitted to it by the director and any other party or parties to the proceeding. (e) The carrier shall have the burden of proving that its requested rate increase is more likely than not in the public interest under all the circumstances. In the event that the rate of return to be enjoyed by the carrier in the face of the requested rate increase equals or exceeds the prejudgment interest rate on personal injury claims as then defined by statute, the rate increase shall be rebuttably presumed to be against the public interest. (f) Interveners shall be deemed public interest litigants. To the extent they successfully oppose requested rate increases they shall be awarded full reasonable costs and attorney fees to be paid by the requesting carrier. In the event that interveners are unsuccessful in opposing rate increases, they shall be awarded full reasonable costs and attorneys fees where the director determines that their efforts in opposing the rate increase were taken in good faith, were not frivolous, or substantially advanced the public interest. Senator Adams moved for the adoption of Amendment No. 4. Senator Green objected. The question being: Shall Amendment No. 4 be adopted? The roll was taken with the following result: 1997-04-16 Senate Journal Page 1174 HB 58 SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 4 YEAS: 5 NAYS: 13 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Duncan, Ellis, Hoffman, Lincoln Nays: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 4 failed. Senators Duncan, Lincoln offered Amendment No. 5 : Page 7, lines 18 - 27: Delete all material and insert: "(g) If the fact finder determines that the conduct proven under (b) of this section was motivated by financial gain and the average annual net income earned by the defendant for the five years before the year in which the trial began exceeded $1,000,000 a year, it may award an amount of punitive damages not to exceed the greatest of (1) the amount calculated under the limitation in (f) of this section; (2) the average net annual income earned by the defendant for the five years before the year in which the trial began; or (3) two times the amount of financial gain that the defendant received or expected to receive as a result of the defendant's misconduct." Senator Duncan moved for the adoption of Amendment No. 5. Objections were heard. Senator Leman moved and asked unanimous consent that he be allowed to abstain from voting due to a conflict of interest. Objections were heard and Senator Leman was required to vote. 1997-04-16 Senate Journal Page 1175 HB 58 The question being: Shall Amendment No. 5 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 5 YEAS: 6 NAYS: 12 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln Nays: Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 5 failed. Senator Lincoln offered Amendment No. 6 : Page 3, line 2: Delete federal Senator Lincoln moved for the adoption of Amendment No. 6. Senator Leman objected. The question being: Shall Amendment No. 6 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 6 YEAS: 6 NAYS: 12 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln Nays: Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 6 failed. 1997-04-16 Senate Journal Page 1176 HB 58 Senator Ellis offered Amendment No. 7 : Page 3, line 18: Delete 10 Insert 11 Page 3, line 20: Delete 10 Insert 11 Page 3, line 24, after the word from: Insert gross negligence Delete an Insert or Page 4, line 2: Delete prolonged Delete waste and Insert substance Page 4, line 3, after the word intentional: Insert or reckless Page 4, after line 8: Insert (f) breach of trust or fiduciary duty Page 4, line 14: Delete give notice of a potential Insert constitute accrual of a Senator Ellis moved for the adoption of Amendment No. 7. Senator Leman objected. Senator Ellis moved and asked unanimous consent that the question be divided. President Miller ruled the question divisible. Without objection, Amendment No. 7 was divided as follows: 1997-04-16 Senate Journal Page 1177 HB 58 Part A: Page 3, line 18: Delete 10 Insert 11 Page 3, line 20: Delete 10 Insert 11 Page 3, line 24, after the word from: Insert gross negligence Delete an Insert or Part B: Page 4, line 2: Delete prolonged Delete waste and Insert substance Page 4, line 3, after the word intentional: Insert or reckless Part C: Page 4, after line 8: Insert (f) breach of trust or fiduciary duty Part D: Page 4, line 14: Delete give notice of a potential Insert constitute accrual of a Senator Ellis moved for the adoption of Part A of Amendment No. 7. Objections were heard. Senator Leman moved and asked unanimous consent that he be allowed to abstain from voting due to a conflict of interest. Objections were heard and Senator Leman was required to vote. 1997-04-16 Senate Journal Page 1178 HB 58 The question being: Shall Part A of Amendment No. 7 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 7 - Part A YEAS: 5 NAYS: 13 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Duncan, Ellis, Hoffman, Lincoln Nays: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Part A of Amendment No. 7 failed. Senator Ellis moved for the adoption of Part B of Amendment No. 7. Senator Leman objected. The question being: Shall Part B of Amendment No. 7 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 7 - Part B YEAS: 9 NAYS: 9 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Parnell, Phillips, Wilken Nays: Green, Halford, Kelly, Leman, Miller, Pearce, Sharp, Torgerson, Ward Excused: Mackie, Taylor and so, Part B of Amendment No. 7 failed. Senator Ellis moved for the adoption of Part C of Amendment No. 7. Senator Pearce objected. 1997-04-16 Senate Journal Page 1179 HB 58 The question being: Shall Part C of Amendment No. 7 be adopted? The roll was taken with the following result: SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 7 - Part C YEAS: 8 NAYS: 10 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Halford, Hoffman, Lincoln, Ward Nays: Green, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Wilken Excused: Mackie, Taylor and so, Part C of Amendment No. 7 failed. Senator Ellis moved for the adoption of Part D of Amendment No. 7. Senator Leman objected. Senator Ellis moved and asked unanimous consent that he be allowed to withdraw his motion. Without objection, it was so ordered. Senator Duncan offered Amendment No. 8 : Page 5, lines 24 - 31: Delete all material. Insert "life expectancy in years multiplied by $30,000, whichever is greater, when the damages are awarded for severe permanent impairment or severe disfigurement." Senator Duncan moved for the adoption of Amendment No. 8. Senator Leman objected. The question being: Shall Amendment No. 8 be adopted? The roll was taken with the following result: 1997-04-16 Senate Journal Page 1180 HB 58 SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 8 YEAS: 6 NAYS: 12 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Donley, Duncan, Ellis, Hoffman, Lincoln Nays: Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 8 failed. Senator Ellis offered Amendment No. 9 : Page 9, lines 13 - 24: Delete all material Page 9, line 25: Delete Section 14 Insert Section 13 Renumber the following bill sections accordingly. Senator Ellis moved for the adoption of Amendment No. 9. Senator Leman objected. The question being: Shall Amendment No. 9 be adopted? The roll was taken with the following result: 1997-04-16 Senate Journal Page 1181 HB 58 SCS CS SSHB 58(RLS) am S Second Reading Amendment No. 9 YEAS: 5 NAYS: 13 EXCUSED: 2 ABSENT: 0 Yeas: Adams, Duncan, Ellis, Hoffman, Lincoln Nays: Donley, Green, Halford, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp, Torgerson, Ward, Wilken Excused: Mackie, Taylor and so, Amendment No. 9 failed. President Miller stated that SENATE CS FOR CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58(RLS) am S will be read a third time on April 17.