Legislature(1995 - 1996)
01/27/1995 01:05 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HJUD - 01/27/95 HB 9 - DAMAGE TO PROPERTY BY MINORS Number 180 REPRESENTATIVE GENE THERRIAULT, sponsor of HB 9 explained the victim's rights bill. It encourages parents to take responsibility for juveniles, and provides an increase in monetary recourse for property loss to victims. It would raise the limit from 2,000 dollars to $10,000. The national average is $10,000 to $15,000. The $2,000 figure dates back to 1957. The bill stems from cases such as two Fairbanks schools loosing $50,000 in vandalism damages. Although the vandals were caught, the school district was unable to recover most costs. REPRESENTATIVE THERRIAULT also proposed amending the bill to add garnishment of the juvenile's permanent fund checks to satisfy up to $10,000 for damages. This does not pertain to runaway children who have been reported missing. He talked about replacing the language "wilful or malicious", with updated terms. Number 400 REPRESENTATIVE CYNTHIA TOOHEY asked whether parents of foster children would be held liable for damages caused by the foster child. Number 430 REPRESENTATIVE THERRIAULT cited AS 34.50.020 which exempts foster parents from this type of liability. Number 450 REPRESENTATIVE GREEN wondered about the financial liability of a non-custodial parent who pays child support payments. Number 465 REPRESENTATIVE THERRIAULT felt the liability would fall upon the person having legal guardianship of the child. Number 470 CHAIRMAN PORTER noted this bill would not change the answer to that interesting question. It would just raise the amount. Number 475 REPRESENTATIVE VEZEY said he has never heard of anyone using this statute to recover $2,000 worth of damages and, therefore, wondered if the bill was futile. Number 478 REPRESENTATIVE THERRIAULT had known of cases relying on this statute to recover damages. Number 485 REPRESENTATIVE VEZEY asked if they had to go to civil court, and prove accusations in order to achieve this recovery; and if people would do that for $10,000. He said he would pay someone $10,000 to avoid going to court. REPRESENTATIVE BUNDE felt something was better than nothing. He also felt the bill held a preventative nature. Parents might be more interested as to where their children are in the evenings if they know they can be held liable for up to $10,000 for damages done by a dependent. Number 563 SHELDON WINTERS, ATTORNEY, STATE FARM INSURANCE COMPANY, explained the insurance aspects of the bill (the language "wilful and malicious" and the amount of the proposed increase). Doing away with the wilful or malicious standard would change the essence of what the statute has always been about, which is vandalism. MR. WINTERS expressed concern over increasing the amount of recourse. Home owners insurance policies were never meant to cover these types of claims, yet insurance companies will sometimes cover them at $2,000. If raised to $10,000, insurance companies will stop paying the claims. He noted the following statistics: 69 percent of vandalism claims have been under $1,000, 85 percent have been less than $2,000, 96 percent have been less than $5,000, and 99 percent have been less than $10,000. Number 730 CHAIRMAN PORTER asked if State Farm is excepting and paying claims up to $2,000 that they do not have to pay, but would not do so if the claims went up to $10,000. Number 745 GEORGE BINGHAM, STATE FARM INSURANCE COMPANY, said these figures are based on two years worth of claims that State Farm paid under home owners policies in Alaska. He could not say what percent of vandalism claims were caused by minors. They would not provide defense if a minor was named in a tort action, unless the parent were named for negligent supervision. Then they would pay up to $2,000. MR. WINTERS clarified that these policies were never designed to cover vandalism, but they do pay up to $2,000 because it is not worth fighting. Number 798 CHAIRMAN PORTER asked if the wording "wilful or malicious" were taken out, would the standard be the regular tort civil standard, or would there be no standard? Number 800 MR. WINTERS thought there would be a strong argument that there would be no standard. Number 803 REPRESENTATIVE GREEN asked what State Farm did on claims exceeding $5,000. Number 804 MR. BINGHAM said they were paid under the person's own homeowner's policy. It was not something paid to the victim. Number 860 JAN RUTHERDALE, ASSISTANT ATTORNEY GENERAL, JUVENILE DELINQUENCY SECTION, DEPARTMENT OF LAW noted people do have the small claims court option; if $2,000 or $10,000 seems too small to fight over in court. TAPE 95-4, SIDE A Number 000 CHAIRMAN PORTER asked the committee if there were suggestions for amendments. Number 033 REPRESENTATIVE DAVIS asked if the parents would be liable for those children in state custody, if the child destroyed some property; and whether the state would be exempt from that. Number 045 ELMER LINDSTROM, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT OF HEALTH and SOCIAL SERVICES, stated that what you do not see in the bill is AS 34.50.020(b), referred to earlier, which is the immunity protection for the state or its agents, which includes foster parents. This bill does not change that statute. Number 065 REPRESENTATIVE DAVIS said that covers the state, not the parent. She thought the parent would be liable under this bill regardless. REPRESENTATIVE THERRIAULT answered Ms. Davis' question. If the child is out of the parent's home in state custody, the state has assumed legal custody, therefore, the parent is no longer in control, and they are no longer liable. Number 085 REPRESENTATIVE DAVIS asked to be shown that in the statute, because there are things parents are liable for even though the child is in physical custody of the state. They have to pay part of the money for their board, or whatever; so she wondered what the bill would really change. Number 100 MR. LINDSTROM believed that under section 1, lines 8 and 9 of page 1, it does speak to having legal custody of an unemancipated minor. If they were in custody of the Department of Health and Social Services, the parents would not have custody, the state would, and that would trigger section (b) which speaks to the state's immunity in that situation. Number 110 REPRESENTATIVE THERRIAULT said under that circumstance, the parent would have immunity, because the child was not in his/her custody. Number 155 CHAIRMAN PORTER asked the committee's wish regarding the use of the permanent fund being available at 100 percent rather than 55 percent. REPRESENTATIVE BUNDE made a motion to adopt Amendment 1. Chairman Porter said in the information in his packet, Amendment 1 is referred to as C.1, dated January 23, 1995. REPRESENTATIVE DAVIS objected. Number 190 A roll call vote was taken. Representatives Finkelstein, Toohey, Vezey, Bunde, Green and Porter voted in favor of Amendment 1. Representative Davis voted against the amendment. So Amendment 1 was adopted. CHAIRMAN PORTER then brought up line 9 on the bill for discussion. Number 195 REPRESENTATIVE FINKELSTEIN did not believe there would be a problem with the original language, "malicious or wilful." A motion was made to move Amendment 2, which would change page 1, line 9 to read, after the words 18 years, "... who as a result of a knowing or intentional act, steals real or personal property ...". Hearing no objection, and Amendment 2 was adopted. Number 270 REPRESENTATIVE BUNDE made motion to move CS HB 9 with appropriate fiscal notes and individual recommendations out of committee. REPRESENTATIVE VEZEY asked what the statutory liability for the parents would be if the act was not malicious or wilful. Number 335 REPRESENTATIVE FINKELSTEIN said it would be up to the jury. REPRESENTATIVE BUNDE noted that any claim you seek recovery for in district court has an upper limit of $50,000. Number 348 CHAIRMAN PORTER felt the liability hinged upon the proof of "knowingly or intentionally." Number 375 SHELDON WINTERS clarified that under this statute, a parent has to be proven negligent in supervising that child. Number 390 REPRESENTATIVE VEZEY understood this to mean that a parent is not liable for a child unless the parent is negligent. Number 392 MR. WINTERS replied that is why we have this statute. Without it, you would have to prove liability on behalf of the parent. It does not matter what the parent did. You are liable strictly if your kid acts maliciously or intentionally. This statute adds liability on the parent. You do not have to prove any liability up to $10,000. Number 400 CHAIRMAN PORTER agreed that this language makes strict liability for "knowingly or intentionally". Number 435 CHAIRMAN PORTER said hearing no objection, the bill is passed from committee.
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