Legislature(2003 - 2004)

05/06/2003 08:06 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 214-PUNITIVE DAMAGES AGAINST EMPLOYERS                                                                        
                                                                                                                                
CHAIR SEEKINS announced HB 214 to be up for consideration.                                                                      
                                                                                                                                
REPRESENTATIVE  RALPH SAMUELS, sponsor  of HB  214, said  the bill                                                              
creates  new guidelines  for  damages  against an  employer  under                                                              
vicarious liability.  It stipulates that an employer  shall not be                                                              
responsible  for paying  damages  unless he  okayed  the act.  The                                                              
point  is  if a  company  did  nothing  wrong,  it should  not  be                                                              
punished, which is what punitive damages are for.                                                                               
                                                                                                                                
The  bill does  not have  anything to  do with  direct damages  or                                                              
compensatory   damages.  Language   comes  from  restatements   of                                                              
National  Standards.  The  Alaska   Supreme  Court  found  in  the                                                              
Laidlaw case,  that if it  had come up  in trial, they  would have                                                              
leaned toward the National Standards.                                                                                           
                                                                                                                                
SENATOR FRENCH  said he thought  the purpose  of this bill  was to                                                              
overturn the result of the Laidlaw case.                                                                                        
                                                                                                                                
REPRESENTATIVE  SAMUELS said he  didn't know  how the  case ended,                                                              
but he knows what the court said.                                                                                               
                                                                                                                                
SENATOR  FRENCH said  the one  place  this bill  differs from  the                                                              
restatement  of National  Standard  has to  do  with the  employee                                                              
working in a managerial capacity for the employer.                                                                              
                                                                                                                                
REPRESENTATIVE  SAMUELS said  they wanted  to make  sure they  had                                                              
someone who had control over the policies of the company.                                                                       
                                                                                                                                
SENATOR FRENCH  said he noticed  that the restatement  was careful                                                              
to add to  the managerial reference  "who was acting in  the scope                                                              
of  employment."  This  bill  says you  can  only  award  punitive                                                              
damages if  the employee was a  manager of the employer,  not that                                                              
they were acting within the scope of employment.                                                                                
                                                                                                                                
MS.  SARAH  NELSON, Staff  to  Representative  Samuels,  responded                                                              
that  there are  two different  kinds  of this  law, the  narrower                                                              
complicity of  rule and the  one that is  acting within  the scope                                                              
of employment. They were aiming at a narrower construction.                                                                     
                                                                                                                                
MS.  MARSHA  DAVIS,  General  Counsel,   Era  Aviation,  said  she                                                              
thought  that language  was  left  out because  it  resulted in  a                                                              
tighter  definition  than the  restatement,  but  it broadens  the                                                              
number of people it would affect.                                                                                               
                                                                                                                                
TAPE 03-38, SIDE B                                                                                                            
                                                                                                                              
SENATOR FRENCH  asked if this would  penalize the lead  on a night                                                              
shift for Exxon or BP.                                                                                                          
                                                                                                                                
MS. DAVIS  replied  that you would  have to  ask yourself  whether                                                              
that  individual  has sufficient  authority  and  control to  make                                                              
decisions for the  alter ego - the employer. They  are looking for                                                              
someone who can create and alter company policies.                                                                              
                                                                                                                                
SENATOR OGAN  said the most  infamous case of vicarious  liability                                                              
he could  think of was  Joe Hazelwood on  the Exxon  Valdez. Exxon                                                              
has a policy that  you don't drink and drive their  ships. So, are                                                              
they suddenly not liable because he violated their policy?                                                                      
                                                                                                                                
MS. DAVIS  replied that  the $5 million  in punitive  damages were                                                              
assessed  against  Exxon  directly.  Mr.  Hazelwood  had  punitive                                                              
damages for  $5,000. This  bill wouldn't  touch anything  that has                                                              
to do  with maritime  law, but it  would make  Exxon or  BP liable                                                              
for Mr. Hazelwood's punitive damage assessment.                                                                                 
                                                                                                                                
SENATOR  FRENCH  asked  if  she   thought  this  bill  would  have                                                              
produced a different result in the Laidlaw case.                                                                                
                                                                                                                                
MS. DAVIS  replied she didn't  think it would,  but it would  be a                                                              
very  close  question.  The  question was  did  Laidlaw  know  the                                                              
individual had a  drug/alcohol problem and yet allow  him to drive                                                              
the van.  The jury  could conclude that  was reckless  behavior on                                                              
the part  of Laidlaw  and that  would have  the same result,  that                                                              
Laidlaw was responsible for the punitive damages.                                                                               
                                                                                                                                
MS.  DAVIS said  one reason  the vicarious  liability should  stay                                                              
with the  employee is that lawyers  go after the deep  pockets. In                                                              
this  case  Laidlaw  was  liable  to pay  the  $100,000  that  was                                                              
assessed and the employee got off scot-free.                                                                                    
                                                                                                                                
     It's appropriate  if you're going to punish  someone for                                                                   
     the wrong  doing that they  actually be punished  rather                                                                   
     than sliding  that punishment to what is  essentially an                                                                   
     innocent  party in the  transaction  and allows the  bad                                                                   
     behavior  to proceed  on because  they  [don't have  the                                                                   
     deepest pocket.]                                                                                                           
                                                                                                                                
SENATOR FRENCH  asked why they  wouldn't include the  phrase "held                                                              
in  the course  and scope  of employment"  since  that's the  test                                                              
they used in Laidlaw.                                                                                                           
                                                                                                                                
MS.  DAVIS  replied  that  under   Alaska  law,  you  couldn't  be                                                              
determined  to be vicariously  liable without  an initial  finding                                                              
that  the  conduct  of  the  employee  was  within  the  scope  of                                                              
employment.  It's a bit  duplicative to  have a precondition  that                                                              
presumes  the  action  was  within the  scope  of  employment.  It                                                              
wouldn't  hurt  anything  to put  it  back  in,  but it  would  be                                                              
duplicative.                                                                                                                    
                                                                                                                                
SENATOR THERRIAULT  asked  if is he  acting as  an employee  if he                                                              
lets an employee use one of his mobile rigs over the weekend.                                                                   
                                                                                                                                
MS.  DAVIS  said  the  question  would  be  whether  his  business                                                              
receives any compensation for that use.                                                                                         
                                                                                                                                
SENATOR THERRIAULT said no.                                                                                                     
                                                                                                                                
MS. DAVIS  said she  would question  whether  any conduct  by that                                                              
employee could be tied back to his business.                                                                                    
                                                                                                                                
MR. JIM  WILSON, Alaska Air Carriers,  supported HB 214  saying it                                                              
would reduce the  cost of their insurance. They  have an extensive                                                              
training program,  but one pilot  didn't follow procedure  and use                                                              
the mirror  to observe external  loads carried under  the aircraft                                                              
when landing  in a confined area.  His blades hit a stump  and the                                                              
aircraft  was totaled.  Fortunately,  there  were  no injuries  or                                                              
deaths, but had  there been, they could have  seen punitive damage                                                              
suits. The  pilot put the company  at risk and those are  the kind                                                              
of things he is concerned about.                                                                                                
                                                                                                                                
SENATOR FRENCH asked  if he was sued or whether  any money changed                                                              
hands.                                                                                                                          
                                                                                                                                
MR.  WILSON replied  it was  an  expensive accident;  they lost  a                                                              
helicopter and the pilot lost his job.                                                                                          
                                                                                                                                
SENATOR  ELLIS asked  if he thought  his insurance  rate would  go                                                              
down with this legislation.                                                                                                     
                                                                                                                                
MR. WILSON  replied his  insurance underwriter  told him  it would                                                              
be one of the tools that would help it go down.                                                                                 
                                                                                                                                
SENATOR ELLIS asked  Mr. Wilson if the insurance  underwriter said                                                              
he  would  reduce  his  insurance  premium if  he  got  this  bill                                                              
passed.                                                                                                                         
                                                                                                                                
MR. WILSON  repeated he  just said  it would be  one of  the tools                                                              
that would make it go down.                                                                                                     
                                                                                                                                
SENATOR ELLIS  said after the  bill has  been signed into  law, he                                                              
wanted Mr.  Wilson to tell him  how much his insurance  went down.                                                              
"I'll be really excited if that, in fact, ever happens."                                                                        
                                                                                                                                
MR. WILSON said he believed it would.                                                                                           
                                                                                                                                
MS.  PAM LABOLLE,  President, Alaska  State  Chamber of  Commerce,                                                              
supported HB 214.  Prior to the passage of tort reform  in 1996 or                                                              
97,  the insurance  rates  in this  state  were  escalating at  an                                                              
astonishing rate. A  great deal of it was because  of the punitive                                                              
damage  assessments, because  you  can't insure  against  punitive                                                              
damages because they are used to punish a wrongdoer.                                                                            
                                                                                                                                
If  you go  to  court, however,  you  run the  risk  of getting  a                                                              
punitive  assessment and  that causes  many  businesses and  their                                                              
insurance companies  to settle out of court rather  than take that                                                              
chance. She  said the  insurance rate  might not  go down,  but it                                                              
could  level  out   or  rise  slightly  versus   the  astronomical                                                              
increases  that  happened  before   passage  of  the  tort  reform                                                              
legislation and the punitive damages definition.                                                                                
                                                                                                                                
CHAIR SEEKINS  said that negotiating  an insurance rate is  a long                                                              
process, especially  with a business.  He agreed that  rates could                                                              
fall or at  least not rise as fast  as they find ways  to keep the                                                              
truly responsible parties liable for their actions.                                                                             
                                                                                                                                
SENATOR FRENCH  said he thought  this bill restricts  the doctrine                                                              
too far.                                                                                                                        
                                                                                                                                
     Reading  the  Laidlaw  is  kind  of  an  eye-opener  for                                                                   
     anybody  with a  child who  goes to  school, because  in                                                                   
     the Laidlaw  case this bus driver  was, as far as  I can                                                                   
     tell,  smoking marijuana  every single  day and  showing                                                                   
     up to  work after  having smoked  marijuana and,  in the                                                                   
     course of her  job, rolled the bus with a  bunch of kids                                                                   
     in  it  and hurt  the  kids.  The  trial jury,  as  they                                                                   
     sometimes  do, kind of  lays down  a big heavy  punitive                                                                   
     award,  which the  trial court  reduced substantially  -                                                                   
     because  contrary  to  popular opinion,  there  is  some                                                                   
     oversight  of punitive damage  awards. Frankly,  I think                                                                   
     a  bus  company  that  employs  a  bus  driver  that  is                                                                   
     smoking marijuana  every single day should  tighten down                                                                   
     the  screws  a  little  bit  to  make  sure  that  isn't                                                                   
     happening. If  it takes a punitive damage  award to make                                                                   
     them  tighten down  the screws,  I'm okay  with that.  I                                                                   
     think this  bill needs to be  amended to make  sure that                                                                   
     employees  acting within the  scope of their  employment                                                                   
     are   included   within   the    definition   of   those                                                                   
     individuals who put the company on the hook.                                                                               
                                                                                                                                
He  would  be much  more  comfortable  if  the bill  mirrored  the                                                              
language of the restatement, which is the national standard.                                                                    
                                                                                                                                
SENATOR  THERRIAULT said  he needed  more time  to go through  the                                                              
issues.                                                                                                                         
                                                                                                                                
SENATOR  SEEKINS   said  they  would  hold  HB   214  for  further                                                              
consideration.  There being  no  further business  to come  before                                                              
the committee, he adjourned the meeting at 9:20 a.m.                                                                            

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