Legislature(1997 - 1998)

03/14/1997 01:45 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                     HOUSE FINANCE COMMITTEE                                   
                         March 14, 1997                                        
                            1:45 P.M.                                          
                                                                               
  TAPE HFC 97-60, Side 1, #000 - end.                                          
  TAPE HFC 97-60, Side 2, #000 - end.                                          
  TAPE HFC 97-61, Side 1, #000 - end.                                          
                                                                               
  CALL TO ORDER                                                                
                                                                               
  Co-Chair  Therriault  called  the  House  Finance  Committee                 
  meeting to order at 1:45 p.m.                                                
                                                                               
  PRESENT                                                                      
                                                                               
  Co-Chair Therriault           Representative Kohring                         
  Representative Davies         Representative Martin                          
  Representative Davis          Representative Moses                           
  Representative Foster         Representative Mulder                          
  Representative Grussendorf                                                   
  Representative Kelly                                                         
                                                                               
  Co-Chair Hanley was absent from the meeting.                                 
                                                                               
  ALSO PRESENT                                                                 
                                                                               
  Representative Brian Porter; Paul Dillon, Attorney,  Juneau;                 
  Bob  Engelbrecht,  Alaska  Visitor's   Association;  Michael                 
  Lessmeier, Attorney, State Farm Insurance.                                   
                                                                               
  SUMMARY                                                                      
                                                                               
  HB 58     "An Act relating to civil  actions; amending Rules                 
            49  and  68,  Alaska  Rules  of  Civil  Procedure;                 
            amending  Rule 702, Alaska  Rules of Evidence; and                 
            providing for an effective date."                                  
                                                                               
            CSHB 58 (FIN)  was reported out of  Committee with                 
            an  "amend" recommendation;  and  with three  zero                 
            fiscal notes; and with two fiscal impact notes.                    
  HOUSE BILL NO. 58                                                            
                                                                               
       "An Act relating  to civil  actions; amending Rules  49                 
       and 68, Alaska Rules of  Civil Procedure; amending Rule                 
       702, Alaska  Rules of  Evidence; and  providing for  an                 
       effective date."                                                        
                                                                               
  PAUL DILLON, ATTORNEY,  JUNEAU testified against HB  58.  He                 
  began his presentation with a  hypothetical case involving a                 
                                                                               
                                1                                              
                                                                               
                                                                               
  family of three.  The father works for ARCO, the mother is a                 
  homemaker, and they have  a small child.  He  theorized that                 
  the mother, "Becky",  was seriously injured by  a commercial                 
  vehicle while stopped at a red  light.  Becky's injuries are                 
  serious, resulting in the  loss of limbs, back pain  and hip                 
  injuries,  and the  inability  to have  more  children.   He                 
  observed  that  her  past medical  costs  are  $200 thousand                 
  dollars;  future medical  expenses  are  estimated  at  $700                 
  thousand dollars; and  the commercial vehicle is  clearly at                 
  fault.                                                                       
                                                                               
  Mr.  Dillon continue  discussion  of "Becky's"  hypothetical                 
  case.    He  noted  that  under  HB  58  the jury  would  be                 
  instructed that there is a $300  thousand dollar cap on non-                 
  economic damages.  He theorized  that the jury awarded Becky                 
  a $1 million dollar judgement.   He maintained that under HB
  58 there could  be an immediate  reduction of 50 percent  of                 
  the judgement because  the commercial driver, at  the trial,                 
  blamed  the  repair shop  for faulty  breaks.   Due  to this                 
  testimony, the  jury determined that  there is a  50 percent                 
  award of  fault to  the break repair  shop.  He  pointed out                 
  that the  owner of the brake  repair shop is not  present at                 
  trial.   The  award  is further  reduced  by future  medical                 
  costs, since  the father's  insurance covers  future medical                 
  benefits.                                                                    
                                                                               
  Mr. Dillon observed that in  "Becky's" hypothetical case the                 
  remaining determination of  $300 thousand  dollars would  be                 
  further reduced by  the tax percentage that  would have been                 
  assessed  against   future   wages.     He  indicated   that                 
  interpretation of this provision is  unclear.  He questioned                 
  if the taxes  would be assessed  on the original $1  million                 
  dollar judgment, or  if only  non-economic damages would  be                 
  taxed.    He  observed that  neither  the  state or  federal                 
  government have  taxed non-economic  damages.   If the  full                 
  judgement was taxed by  28 percent Becky would be  left with                 
  $140 thousand  dollars.   He observed  that Becky would  not                 
  have enough money to pay her lawyers, court costs or medical                 
  experts.  He observed that lawyer fees could be greater than                 
  $100 thousand dollars  and medical experts could  cost "tens                 
  of thousands  of dollars".  In addition, the judgement could                 
  be paid in periodic payments.                                                
                                                                               
  Mr. Dillon maintained that the legislation affects Alaskans'                 
  right  to a jury  trial and  the right of  a jury  to make a                 
  determination on  awards.   Current statute  does not  allow                 
  someone to try the "phantom chair".  He pointed out that  if                 
  a phantom defendant  is brought into  the trial there is  no                 
  one to contest allegations of fault.                                         
                                                                               
  Mr. Dillon urged members to not include section 11.  Section                 
  11 requires that  "the amount  of damages  awarded shall  be                 
                                                                               
                                2                                              
                                                                               
                                                                               
  reduced by the amount  of federal and state income  tax that                 
  would have been paid..."                                                     
                                                                               
  BOB  ENGELBRECHT,  ALASKA  VISITOR'S  ASSOCIATION  spoke  in                 
  support  of  the legislation.    He asked  that recreational                 
  liability be added to the bill.  He observed that HB 300 was                 
  merged with the tort reform bill during the last legislation                 
  session.   The provisions of HB 300  were not included in HB
  58.  He observed that they would like to see an amendment to                 
  establish  the  responsibilities   of  people  who   operate                 
  commercial recreational activities and  the responsibilities                 
  of people who participate in those activities.                               
                                                                               
  Representative Martin MOVED  to adopt  Amendment 1 (copy  on                 
  file).  Representative J.  Davies OBJECTED.   Representative                 
  Porter  explained  that  the  amendment  clarifies  language                 
  regarding  delivery, or sale of electricity.   He noted that                 
  an  electrical service is a service not a product, including                 
  the entry into a consumer's home  and its application in the                 
  home.  He observed that there  was concern that the language                 
  would be interpreted to mean that delivery  or production to                 
  a neighborhood transfer would be a service and that from the                 
  transformer to the home would be considered a product.                       
                                                                               
  There being NO OBJECTION, Amendment 1 was adopted.                           
                                                                               
  Representative Martin MOVED  to adopt  Amendment 2 (copy  on                 
  file).  Representative  J. Davies OBJECTED.   Representative                 
  Porter  explained  that the  amendment  does not  change the                 
  legislation's intent.  The amendment  could clarify that the                 
  statute  of  repose  is  eight  years.    (The  statute   of                 
  limitation  is two  years.   Amendment 2 clarifies  that the                 
  statute of limitations  does not apply to  minors from birth                 
  to sixs-of-age.)  Within  the statute of repose  there would                 
  be an exception as it applies to children from  birth to six                 
  years  old.    This  would  cover concerns  regarding  birth                 
  injuries.   A  six year  old would  have  two more  years to                 
  introduce an action.                                                         
                                                                               
  Amendment 2 also clarifies that a school district may extend                 
  the statute of repose on new school construction when agreed                 
  to by contract.                                                              
                                                                               
  In  addition,  Amendment  2  clarifies  that one  case  adds                 
  "another person's rights."  This  is consistent with current                 
  case law.                                                                    
                                                                               
  Co-Chair  Therriault observed  that the mere  consumption of                 
  alcohol  does  not  imply  that  a  person's  acts  were not                 
  conscious.  Representative Porter observed that  consumption                 
  of  alcohol can mitigate  a sentence  but not  be used  as a                 
  defense.                                                                     
                                                                               
                                3                                              
                                                                               
                                                                               
  Representative Porter noted that the Alaska Court System has                 
  requested that  section 65,  the effective  date clause,  be                 
  deleted.                                                                     
  Co-Chair  Therriault  MOVED  to AMEND  Amendment  2,  delete                 
  "section 65" and  reflect the  change in the  title.   There                 
  being NO OBJECTION, it was so ordered.                                       
                                                                               
  There  being  NO  OBJECTION,  Amendment  2  as  amended  was                 
  adopted.                                                                     
                                                                               
  In  response  to  a question  by  Representative  J. Davies,                 
  Representative Porter explained  that Amendment 2  clarifies                 
  that the  statute of limitation  is extended to  eight years                 
  for children under six.  Co-Chair Therriault summarized that                 
  the  statute  of  repose  will   supercede  the  statute  of                 
  limitations in regards  to the exception for  children under                 
  six.                                                                         
                                                                               
  Representative Porter responded  to comments by  Mr. Dillon.                 
  He stated that homemaker duties can be quantified in dollars                 
  and fall under  economic damages, which  is not capped.   He                 
  stressed that the defense  of faulty brakes would have  come                 
  out during discovery.                                                        
                                                                               
  Representative J. Davies questioned why the defendant is not                 
  required to bring the  other party at fault into  the trial.                 
  Representative  Porter  responded   that  "people  who   are                 
  responsible, should  only be  responsible to  the extent  of                 
  their own responsibility."                                                   
                                                                               
  In  response to  a  question by  Representative Grussendorf,                 
  Representative  Porter discussed  section  11, reduction  of                 
  taxes.  He  emphasized that victims  should not be paid  for                 
  wages that they would not have received.  He  noted that the                 
  judgment is  not  taxed  by  the  federal  government.    He                 
  stressed that the  same wages  would have been  taxed.   The                 
  provision does not apply to judgments that are taxed.                        
                                                                               
  Representative J. Davies asked why it  is not left to juries                 
  to  decide  the  impact  of  taxes.   Representative  Porter                 
  maintained that  it would be  unusual for a  jury to make  a                 
  deduction of taxes  when the  IRS would  tax the  judgement.                 
  Representative Kelly suggested that juries would assume some                 
  level of taxation and add to the judgement.                                  
                                                                               
  Representative  Porter  clarified  that  collateral  benefit                 
  provisions exist  in current  statute.   He explained  that,                 
  under  current  statutes,   the  Court  deducts   collateral                 
  benefits from  the judgement.   Under  the legislation,  the                 
  jury would make the deduction.                                               
                                                                               
                                                                               
                                4                                              
                                                                               
                                                                               
  In   response  to   a  question   by   Co-Chair  Therriault,                 
  Representative Porter could not estimate the  economic value                 
  of a homemaker.                                                              
                                                                               
  Representative G.  Davis MOVED to adopt Amendment 3 (copy on                 
  file).     Co-Chair  Therriault  OBJECTED  for  purposes  of                 
  discussion.    Representative  J.  Davies   noted  that  the                 
  amendment would change  the statue  of repose from  8 to  10                 
  years.    He stated that at  ten years 98 percent  of claims                 
  would   be   discovered    within   the   allowed    period.                 
  Representative Porter  noted that  Representative J.  Davies                 
  was referring to construction claims.  Representative Porter                 
  responded  that  96.8   percent  of  all  claims   would  be                 
  discovered within  8 years.   He  stressed that  a ten  year                 
  statute  of  repose would  mandate  two additional  years of                 
  insurance coverage.  He observed that  the change would also                 
  affect  the  provision  for  children.   He  emphasized  the                 
  difficulty to defend against cases involving time-lapse.  He                 
  observed that the Alaska Supreme Court ruled:                                
                                                                               
       "A five-year statue  of limitations governs the  filing                 
       of  attorney grievances.    Alaska  Bar  R. 18.    This                 
       reflects a  judgment that five years is the outer limit                 
       of  time  in  which responding  attorneys  are  able to                 
       fairly  defend  themselves against  charges,  given the                 
       loss  of memory,  evidence, and  witnesses that  occurs                 
       over time."                                                             
                                                                               
  Representative  J. Davies  argued  that, in  the  case of  a                 
  construction  project,  there  are circumstances  where  the                 
  problem would not  be discovered for  more than many  years.                 
  He pointed out that a statute  of repose accrues based on  a                 
  fixed period of time.  A  statute of limitation accrues from                 
  the time one  would reasonably know  about the problem.   He                 
  spoke  in support  of  a ten  year  statute of  repose.   He                 
  stressed that there  would not be a huge  additional expense                 
  to keep documents  another two years  in order to catch  the                 
  majority of cases.  He observed that Representative Porter's                 
  concerns  are  attached  to  non-construction  issues.    He                 
  suggested  that  there could  be  two different  statutes of                 
  repose.                                                                      
                                                                               
  A roll call  vote was taken on the MOTION to adopt Amendment                 
  3.                                                                           
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Moses                                      
  OPPOSED:  G.   Davis,   Foster,   Kelly,  Kohring,   Martin,                 
  Therriault,                                                                  
                                                                               
  Representatives Mulder and Hanley were absent from the vote.                 
                                                                               
  The MOTION FAILED (3-6).                                                     
                                                                               
                                5                                              
                                                                               
                                                                               
  Representative  J.  Davies  WITHDREW  Amendments  4  and  5.                 
  Representative J. Davies  MOVED  to adopt Amendment 6  (copy                 
  on file).  Representative Kelly OBJECTED.  Representative J.                 
  Davies explained  that Amendment 6  would allow the  caps on                 
  non-economic damages to be tied  to the Consumer Price Index                 
  (CPI).  Representative Porter spoke against Amendment 6.  He                 
  stressed  that the Court would be  required to make constant                 
  CPI  adjustments.   He  pointed  out  that  statutes can  be                 
  revised.                                                                     
                                                                               
  Representative J. Davies responded that CPI calculations are                 
  simple  and  can be  calculated  quickly.   He  stressed the                 
  impact  of  inflation.    He  emphasized the  difficulty  of                 
  passing legislation to revise statutes.                                      
                                                                               
  Representative Porter observed that the legislation contains                 
  an accelerator.  He stressed that the value of the CPI is in                 
  national dispute.                                                            
                                                                               
  A roll call  vote was taken on the MOTION to adopt Amendment                 
  6.                                                                           
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Moses                                      
  OPPOSED:  G.   Davis,   Foster,   Kelly,  Kohring,   Martin,                 
  Therriault,                                                                  
                                                                               
  Representatives Mulder and Hanley were absent from the vote.                 
                                                                               
  The MOTION FAILED (3-6).                                                     
                                                                               
  Representative J. Davies MOVED to adopt Amendment 7 (copy on                 
  file).   Co-Chair  Therriault OBJECTED.   In  response to  a                 
  question  by Representative Porter explained that each claim                 
  is limited  by $300 thousand  dollars.  The  amendment would                 
  reduce the amount of money that children could get over loss                 
  of consortium.  Representative J.  Davies indicated that the                 
  amendment was not correctly drafted.                                         
                                                                               
                                                                               
  Representative J.  Davies expressed concern  that subsection                 
  (b) on page 5  could be interpreted that the  cap applies in                 
  aggravate.  He suggested adding "of a person" on page 5 line                 
  16.                                                                          
                                                                               
  Representative J. Davies  WITHDREW Amendment 7.  He MOVED to                 
  insert after  "claims", "of  a person"  on page  5 line  16.                 
  There being NO OBJECTION, it was so ordered.                                 
                                                                               
  Representative  J. Davies  WITHDREW  Amendment  8  (copy  on                 
  file).   He MOVED  to adopt Amendment 9 (copy on file).  Co-                 
  Chair  Therriault  OBJECTED  for   purposes  of  discussion.                 
                                                                               
                                6                                              
                                                                               
                                                                               
  Representative J.  Davies noted  that Amendment 9  addresses                 
  the limit on  punitive damages.  The  amendment would delete                 
  "four times the  amount of  compensatory damages awarded  or                 
  $600 thousand dollars, whichever is greater"; and add "three                 
  times the annual  net profit reasonably attributable  to the                 
  commercial activity."  He spoke in support of the amendment.                 
  He  noted  that the  amendment  would address  the situation                 
  where a  large corporation  makes a  business decision  that                 
  they  are  willing to  risk the  cost  of injuries  or death                 
  against the cost of instituting a change to the product.  He                 
  referred to the Exxon Valdez case.   He maintained that $600                 
  thousand dollars  is not  "a hammer  big enough  to get  the                 
  attention of a large  corporation."  He stated that  the cap                 
  should be appropriate to the size of the corporation.                        
                                                                               
  Representative Kelly pointed out that the  in the Exxon case                 
  they  would  have  been  required  to  pay  four  times  the                 
  compensatory damages since the legislation requires that the                 
  greater amount be paid.                                                      
                                                                               
  Representative Porter noted that the Exxon Valdez case would                 
  not be tried  under state law.   He stated that, if  it were                 
  decided under HB 58, that Exxon  would have been required to                 
  pay $3.5 billion dollars in  punitive damages at three times                 
  the compensatory  damages.  He  questioned which corporation                 
  would be  held responsible  under Representative  J. Davies'                 
  amendment,   the   Alaskan   corporation   or   the   parent                 
  corporation.    He  pointed  out   that  there  are  several                 
  definitions of "net profit".                                                 
                                                                               
  Representative Foster suggested that  the amendment would be                 
  detrimental to small  businesses.   He cited a  hypothetical                 
  case in which a company has  contaminated soil.  The company                 
  has insurance, but only made a small  profit.  The amount of                 
  damages  that  would   be  recoverable  would  be   minimal.                 
  Representative J. Davies argued  that $600 thousand  dollars                 
  would be too much for  a small company.  He  reiterated that                 
  the award needs  to relate  to the economic  ability of  the                 
  company.                                                                     
                                                                               
  A roll call vote was taken on the MOTION to  adopt Amendment                 
  9.                                                                           
                                                                               
  IN FAVOR: J. Davies, Grussendorf                                             
  OPPOSED:  G.   Davis,   Foster,   Kelly,  Kohring,   Martin,                 
  Therriault                                                                   
                                                                               
  Representatives Hanley, Mulder and Moses were absent for the                 
  vote.                                                                        
                                                                               
  The MOTION FAILED (2-6).                                                     
                                                                               
                                                                               
                                7                                              
                                                                               
                                                                               
  Representative J. Davies  MOVED to adopt Amendment  10 (copy                 
  on  file).   Co-Chair  Therriault  OBJECTED for  purposes of                 
  discussion.     Representative  J.  Davies   explained  that                 
  Amendment 10 would  delete section  11, reduction of  taxes.                 
  He  argued that  the  judge and  jury  should determine  the                 
  affect of taxes on the award.  He expressed concern with the                 
  victims' rights.                                                             
                                                                               
  Representative Porter  argued  against the  amendment.    He                 
  reiterate the  intent of  the provision  is to make  someone                 
  responsible for what a person lost, not make a profit.                       
                                                                               
  Representative   Grussendorf   spoke  in   support   of  the                 
  amendment.                                                                   
  Mr. Dillon discussed section 11.   He noted that the federal                 
  government is the taxing authority.  He observed that juries                 
  are told to take into account  taxes for past wages.  Juries                 
  are not told to take into  account taxes for future economic                 
  wages.    He did  not  know of  other  states  that makes  a                 
  deduction for taxes.  He stressed that the IRS will take its                 
  share of the award.                                                          
                                                                               
  In response  to a question  by Representative G.  Davis, Mr.                 
  Dillon maintained that  the argument  should not be  allowed                 
  that some form of damages should not be paid on the bases of                 
  the federal  government taxing or  not taxing.   He asserted                 
  that litigation will result from the provision.                              
                                                                               
  MICHAEL LESSMEIER,  ATTORNEY,  STATE  FARM  INSURANCE  spoke                 
  against the  amendment.   He observed  that economists  make                 
  projections of past wage lost.  Past wage lost is reduced by                 
  the amount that  one would  have to pay  for federal  income                 
  tax.    The  Alaska  Supreme  Court  ruled  that  juries  be                 
  instructed not to consider  future taxes.  He  stressed that                 
  the intent is to  clarified that persons are paid  for wages                 
  they actually would loose.  Net wages would be paid for  the                 
  future and the past.                                                         
                                                                               
  Representative    Grussendorf    summarized    that   future                 
  compensation is not taxed.  Mr. Lessmeier asserted that  the                 
  legislation would remove a windfall.                                         
                                                                               
  Representative J. Davies observed that juries are instructed                 
  not  to consider future taxes.   Mr. Lessmeier observed that                 
  the  State  Court  recognized the  unpredictability  of  the                 
  federal  system.    If federal  law  changes  (judgments are                 
  assessed a federal tax) the provisions  would not apply.  He                 
  acknowledged that there is a policy issue.                                   
                                                                               
  Representative J.  Davies noted  that the  verdict shall  be                 
  itemized.   In response to  a question by  Representative J.                 
  Davies, Mr.  Lessmeier explained that only  punitive damages                 
                                                                               
                                8                                              
                                                                               
                                                                               
  are subject to  tax and past  wage loss.  Representative  J.                 
  Davies clarified that  if they are subject  to taxation they                 
  would not  be reduced.   Representative  Porter stated  that                 
  federal  courts deduct  taxes that would  have been  paid on                 
  future wages.                                                                
                                                                               
  A roll call vote was taken on the  MOTION to adopt Amendment                 
  10.                                                                          
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Therriault                                 
  OPPOSED:  G. Davis, Foster, Kelly, Kohring, Martin                           
                                                                               
  Representatives  Hanley, Mulder  and Moses were  absent from                 
  the vote.                                                                    
                                                                               
  The MOTION FAILED (3-5).                                                     
                                                                               
  Representative J. Davies  MOVED to adopt Amendment  11 (copy                 
  on  file).   Co-Chair  Therriault  OBJECTED for  purposes of                 
  discussion.     Representative  J.  Davies   explained  that                 
  Amendment  11  would  apply  to the  periodic  payment.   He                 
  observed that  periodic payments  can be  made on  judgments                 
  over $100 thousand  dollars with  the exception of  attorney                 
  contingency  fees.    He  expressed  concern  that  periodic                 
  payments may  not be  large enough  to allow  a person  with                 
  large  medical bills to cover their  expenses.  Amendment 11                 
  would provide that periodic payments be made if the judgment                 
  exceeds  $100  thousand dollars,  "or  the total  of medical                 
  bills and other costs reasonably  expected to be incurred by                 
  the injured party  form the time  of the injury through  two                 
  years after the date of judgment, whichever is greater."                     
                                                                               
  (Tape Change, HFC 97-61, Side 1)                                             
                                                                               
  Representative  Porter  maintained  that  the  Court   would                 
  consider medical  bills prior to awarding periodic payments.                 
  He stated that medical  payments would be part of  the lump-                 
  sum  payment.   He observed  that the  legislation does  not                 
  limit how much the periodic payment will be or the length of                 
  payment.   He stressed  that periodic  payments are  usually                 
  agreed to by the parties.  He noted that future  wages would                 
  have been periodic.                                                          
                                                                               
  In  response  to  a  question  by Representative  G.  Davis,                 
  Representative Porter  explained that the  legislation would                 
  allow the plaintiff or defendant  to elect periodic payment.                 
  Representative  J.  Davies  pointed out  that  existing  law                 
  allows  the  injured  party the  option  to  except periodic                 
  payment.  He maintained  that this helps to assure  that the                 
  payment  is  a  reasonable apportionment.    The legislation                 
  would require the  Court at the  request of either party  to                 
  institute periodic payments.  He  expressed concern that the                 
                                                                               
                                9                                              
                                                                               
                                                                               
  injured party  could be  forced into  an injurious  periodic                 
  payment.                                                                     
                                                                               
  Representative Porter observed that studies  show that it is                 
  more likely that  the wealth of  a lump-sum payment will  be                 
  dissipated in an untimely fashion.                                           
                                                                               
  A roll call vote was taken on the MOTION to  adopt Amendment                 
  11.                                                                          
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Therriault                                 
  OPPOSED:  G. Davis, Foster, Kelly, Kohring, Martin                           
                                                                               
  Representatives Hanley, Mulder  and Moses  were absent  from                 
  the vote.                                                                    
                                                                               
  The MOTION FAILED (3-5).                                                     
                                                                               
  Representative J. Davies  MOVED to adopt Amendment  12 (copy                 
  on  file).   Co-Chair  Therriault  OBJECTED for  purposes of                 
  discussion.     Representative  J.  Davies   explained  that                 
  Amendment 12  refers to joint severability.   He stated that                 
  the  statue   of   repose  removes   certain   people   from                 
  responsibility.    He  stressed  that  they could  still  be                 
  apportioned a portion of fault.   The intent of Amendment 12                 
  is to  clarify that if a person is barred from being brought                 
  to the table by  the statute of repose  that they cannot  be                 
  apportioned a portion  of the fault.   He observed that  the                 
  responsibility of a  building owner increases overtime.   He                 
  acknowledged arguments that  a large portion of  the problem                 
  arises  from  poor  maintenance.     He  asserted  that  the                 
  responsibility  of   maintaining  the  building   should  be                 
  shifted, overtime, to  the building  owner or his  insurance                 
  carrier.  Once  the statute of  repose has been reached  and                 
  the  design  professionals are  no  longer liable,  then the                 
  owner should be fully responsible.  He alleged that a victim                 
  cannot be made whole under a circumstance where the fault is                 
  apportioned to someone who cannot be held responsible.                       
                                                                               
  Representative  Porter  spoke  against  Amendment  12.    He                 
  observed that the design portion of the statute of repose is                 
  15 years.  He maintained  that the amendment would eliminate                 
  the design portion of the statute of repose.                                 
                                                                               
  Representative  J. Davies observed that, in the case where a                 
  building collapses nine  years after it was designed, a case                 
  could be made that a jury could apportion 25 percent of  the                 
  responsibility to the  design professional.  He  argued that                 
  25  percent  would not  be  claimable by  the  injured party                 
  because of the statute of repose.                                            
  Representative  Porter  stressed  that the  amendment  would                 
  apply  to  all claims.   He  stressed  that the  majority of                 
                                                                               
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  claims  would  be made  before the  statute  of repose.   He                 
  stated  if  a   design  problem   is  gross  negligence   or                 
  fraudulent, or  where the  building specifications  were not                 
  followed  the  designer  could  still  be responsible.    He                 
  maintained  that  the  jury  would  not  find  the  designer                 
  responsible.  He  argued that the amendment  would take away                 
  the discretion of juries.                                                    
                                                                               
  Representative J. Davies  reiterated that if by  the statute                 
  of  repose a person is  removed from responsibility the jury                 
  should not  be allowed to apportion  a part of the  blame to                 
  that person.                                                                 
                                                                               
  A roll call vote was taken on the MOTION to adopt  Amendment                 
  12.                                                                          
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Moses                                      
  OPPOSED:  G. Davis, Foster,  Kelly, Kohring, Martin, Mulder,                 
  Therriault                                                                   
                                                                               
  Representative Hanley was absent from the vote.                              
                                                                               
  The MOTION FAILED (3-7).                                                     
                                                                               
  Co-Chair Therriault reviewed  the fiscal  notes.  He  stated                 
  that the fiscal notes appear to be reasonable and justified.                 
                                                                               
                                                                               
  Representative Martin MOVED  to report CSHB 58  (FIN) out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying  fiscal  notes.     Representative  J.   Davies                 
  OBJECTED for  purposes of amendment.   Representative Martin                 
  WITHDREW his motion.                                                         
                                                                               
  Representative J.  Davies MOVED to  delete section 21.   Co-                 
  Chair  Therriault  OBJECTED   for  purposes  of  discussion.                 
  Representative J. Davies  noted that section 21  pertains to                 
  offers  of  judgement.    He expressed  concern  that  if  a                 
  plaintiff  could be liable  for the entire  cost of attorney                 
  fees  if the judgement  is within 5  percent of  an offer to                 
  settle.    He  acknowledged  that  the section  will  reduce                 
  litigation.   He maintained that no one will be able to take                 
  the risk.  If a plaintiff is wrong they could be financially                 
  wiped out even if they win the suit.                                         
                                                                               
  Representative Porter stressed that most cases in Alaska are                 
  against  small businesses  that have  no ability  to face  a                 
  punitive damage complaint.  He  explained that the offer  of                 
  judgment allots actual attorney fees and costs from the time                 
  the  offer  is made  to  the  trial,  if  the offer  is  not                 
  accepted.   He acknowledged  that it  would not  be fair  if                 
  judgment was  missed by  1 percent.   He  stressed that  the                 
                                                                               
                               11                                              
                                                                               
                                                                               
  intent of the provision is to provide a motivation, for both                 
  sides, to make a reasonable offer and to settle.                             
                                                                               
  Representative J. Davies emphasized that plaintiffs are  not                 
  going  to   run  up  attorney  fees  if  the  settlement  is                 
  reasonable.   He spoke  in support  of a  sliding scale  for                 
  apportionment  of  attorney  fees.    Representative  Porter                 
  argued  that  plaintiff's  attorney  costs  would not  be  a                 
  consideration since they are provided by contingency fees.                   
                                                                               
  A roll call vote was taken  on the MOTION to adopt Amendment                 
  13.                                                                          
                                                                               
  IN FAVOR: J. Davies, Grussendorf, Moses                                      
  OPPOSED:  G. Davis, Foster,  Kelly, Kohring, Martin, Mulder,                 
  Therriault                                                                   
                                                                               
  Representative Hanley was absent from the vote.                              
                                                                               
  The MOTION FAILED (3-7).                                                     
                                                                               
  Representative Martin  MOVED to report CSHB 58  (FIN) out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying fiscal notes.  There being NO OBJECTION, it was                 
  so ordered.                                                                  
  ADJOURNMENT                                                                  
                                                                               
  The meeting adjourned at 3:50 p.m.                                           
                                                                               
                                                                               
                               12                                              

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