Legislature(1995 - 1996)
02/27/1995 01:05 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 27, 1995
1:05 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
* HB 188: "An Act creating the crime of indecent viewing and
photography."
HEARD AND HELD
HB 21: "An Act relating to revocation of a driver's license for
illegal possession or use of a controlled substance or
illegal possession or consumption of alcohol by a person
at least 13 but not yet 21 years of age; and providing
for an effective date."
PASSED OUT OF COMMITTEE
HB 23: "An Act relating to referrals involving dental
services."
PASSED OUT OF COMMITTEE
* HB 158: "An Act relating to civil actions; amending Alaska Rules
of Civil Procedure 49, 68, and 95; amending Alaska Rule
of Evidence 702; and providing for an effective date."
HEARD AND HELD
HB 25: "An Act revising Rule 16, Alaska Rules of Criminal
Procedure, relating to discovery and inspection in
criminal proceedings, to adopt the comparable federal
rule."
BILL POSTPONED
(* First public hearing)
WITNESS REGISTER
REPRESENTATIVE JERRY MACKIE
Alaska State Legislature
State Capitol, Room 404
Juneau, AK 99801-1182
Telephone: (907) 465-4925
POSITION STATEMENT: Sponsor of HB 188
MORRIS VERVERS, Superintendent
Klawock School District
P.O. Box 9
Klawock, AK 99925
Telephone: (907) 755-2917
POSITION STATEMENT: Testified in favor of HB 188
MARGOT KNUTH, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-4037
POSITION STATEMENT: Provided information on CSHB 21
REPRESENTATIVE GARY DAVIS
Alaska State Legislature
State Capitol, Room 420
Juneau, AK 99801-1182
Telephone: (907) 465-2693
POSITION STATEMENT: Sponsor of HB 23
DR. JULIE ROBINSON
Alaska Dental Society
3400 Spenard Road
Anchorage, AK 99501
Telephone: (907) 243-2156
POSITION STATEMENT: Testified in favor of HB 23
BARBARA GABIER, Program Coordinator
Division of Occupational Licensing
Department of Commerce and Economic Development
P.O. Box 110806
Juneau, AK 99811-0806
Telephone: (907) 465-2534
POSITION STATEMENT: Testified in favor of HB 23
ANNE CARPENETI, Committee Aide
House Judiciary Committee
State Capitol, Room 120
Juneau, AK 99801-1182
Telephone: (907) 465-4990
POSITION STATEMENT: Provided information on HB 158
PREVIOUS ACTION
BILL: HB 188
SHORT TITLE: INDECENT PHOTOGRAPHY
SPONSOR(S): REPRESENTATIVE(S) MACKIE, Porter, Phillips, Robinson,
Navarre, Green, James, Kubina, Elton
JRN-DATE JRN-PG ACTION
02/20/95 419 (H) READ THE FIRST TIME - REFERRAL(S)
02/20/95 419 (H) JUDICIARY, FINANCE
02/22/95 456 (H) COSPONSOR(S): KUBINA
02/23/95 469 (H) COSPONSOR(S): ELTON
02/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 21
SHORT TITLE: DRIVER'S LIC REVOCATION;ALCOHOL/DRUGS
SPONSOR(S): REPRESENTATIVE(S) PORTER, TOOHEY
JRN-DATE JRN-PG ACTION
01/06/95 26 (H) PREFILE RELEASED
01/16/95 26 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 26 (H) TRA, JUD, FIN
02/08/95 (H) TRA AT 01:00 PM CAPITOL 17
02/08/95 (H) MINUTE(TRA)
02/10/95 294 (H) TRA RPT CS(TRA) 4DP 3NR
02/10/95 294 (H) DP: JAMES, MACLEAN, WILLIAMS, G.DAVIS
02/10/95 294 (H) NR: MASEK, BRICE, SANDERS
02/10/95 295 (H) 3 ZERO FN (DPS, LAW, DHSS) 2/10/95
02/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 23
SHORT TITLE: REFERRALS INVOLVING DENTAL SERVICES
SPONSOR(S): REPRESENTATIVE(S) G.DAVIS BY REQUEST
JRN-DATE JRN-PG ACTION
01/06/95 26 (H) PREFILE RELEASED
01/16/95 26 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 26 (H) HES, JUD
02/07/95 (H) HES AT 03:00 PM CAPITOL 106
02/07/95 (H) MINUTE(HES)
02/08/95 266 (H) HES RPT 6DP
02/08/95 266 (H) DP: ROKEBERG, G.DAVIS, BUNDE, TOOHEY
02/08/95 266 (H) DP: ROBINSON, BRICE
02/08/95 266 (H) ZERO FISCAL NOTE (DCED) 2/8/95
02/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 158
SHORT TITLE: CIVIL LIABILITY
SPONSOR(S): REPRESENTATIVE(S) PORTER, Toohey, Mulder
JRN-DATE JRN-PG ACTION
02/06/95 253 (H) READ THE FIRST TIME - REFERRAL(S)
02/06/95 253 (H) JUDICIARY, FINANCE
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) MINUTE(JUD)
02/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL,Porter,Green,Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUDICIARY, FINANCE
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
01/27/95 (H) MINUTE(JUD)
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
01/30/95 (H) MINUTE(JUD)
02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519
02/06/95 (H) JUD AT 01:00 PM CAPITOL 120
02/06/95 (H) MINUTE(JUD)
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
02/08/95 (H) MINUTE(JUD)
02/13/95 (H) JUD AT 01:00 PM CAPITOL 120
02/13/95 (H) MINUTE(JUD)
02/15/95 (H) JUD AT 01:00 PM CAPITOL 120
02/15/95 (H) MINUTE(JUD)
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/17/95 (H) MINUTE(JUD)
02/22/95 (H) JUD AT 01:00 PM CAPITOL 120
02/22/95 (H) MINUTE(JUD)
02/27/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-17, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:05
p.m. on Monday, February 27, 1995. A quorum was present. CHAIRMAN
BRIAN PORTER stated the following bills would be heard: HB 188,
CSHB 21, HB 23, and then a work session on HB 158. He called
Representative Jerry Mackie to come forward and introduce HB 188.
HJUD - 02/27/95
HB 188 - INDECENT PHOTOGRAPHY
REPRESENTATIVE JERRY MACKIE, Sponsor of HB 188 read the following
sponsor statement:
"HB 188 establishes the crime of indecent viewing and photography
for anyone viewing, making a picture or video taping an
individual's nakedness without their knowledge or consent. I
introduced the bill in response to an incident that occurred
recently in one of my schools which revealed a major loophole in
the state's invasion of privacy laws. The incident was the
inadvertent discovery by students of a hidden video surveillance
system in the girls' locker room.
"Following the discovery, the initial reaction of dismay rapidly
changed to strong feelings of anger, betrayal, and embarrassment
throughout the community. In all small communities, the school
gymnasium and shower facilities are used by practically everyone in
town. They are also used by many visitors from neighboring
communities that come to participate in local events. So the
hidden recording system had potential implications for a whole lot
of people in the region, both students and adults.
"Equally distressing was the revelation that neither the state's
invasion of privacy laws nor the child pornography laws applied to
the situation. Unauthorized, hidden photographic surveillance by
itself is not prohibited, even if the unsuspecting person is naked.
There is no foundation then to the public's expectation and trust
that privacy exists and is protected especially in places like
lavatories, bathrooms, and dressing rooms.
"I introduced HB 188 to close this loophole in our privacy laws so
that there is a deterrent to the commission of indecent viewing and
photographing in the future."
Number 105
REPRESENTATIVE AL VEZEY had questions about security surveillance.
It is addressed on page 2, subsection (d). He asked if you were
doing a security surveillance, and you went back to look at the
video tapes to find out who the person is, how are you going to
know what sex the person is, if you do not know who the person is?
REPRESENTATIVE MACKIE explained there are instances where there are
security surveillance systems that protect buildings. If they are
properly posted, and it is within the realm of security
surveillance, if an individual went up and bared themself in front
of a security surveillance camera, whoever is viewing that camera
cannot be charged with an offense. It is actually protecting those
that have legitimate security systems in their homes or public
facilities. It is an affirmative defense for the owners of those
security systems so they cannot be charged under this law. That is
the reason that needed to be in there.
Number 145
REPRESENTATIVE VEZEY said the biggest thing that concerns him is
that it exempts persons in security surveillance only if they are
the same sex as the person being viewed. That appears to be quite
a burden to place on the person with the security system, and their
employees. In respect for property owners' rights, why should we
require that a legitimate enterprise post that they are doing
security surveillance? If something happened to the posted notice,
would the people doing the surveillance be convicted of a felony?
Signs get ripped down and vandalized.
Number 175
REPRESENTATIVE MACKIE said people just need to make reasonable
attempts to make sure the signs are posted. For example, if a
school decides to have security surveillance cameras in a locker
room because the locker rooms keep being vandalized, as long as it
is a member of the same sex who is just viewing the room, that
should be allowed for security reasons.
Number 200
REPRESENTATIVE VEZEY thought they should put a period right after
the word "system" and not worry about the "ifs," "ands" or "buts."
REPRESENTATIVE MACKIE did not want to disallow the affirmative
defense. The whole purpose of this bill is to say that if you have
a reasonable expectation to the right to privacy, then you should
be afforded that right. If it is posted that there is security
surveillance, it is probably not going to be somewhere where you
are taking a shower and certainly not being monitored by a person
of the opposite sex.
CHAIRMAN PORTER said they would hold the bill, while a committee
substitute was drafted with a little different language
incorporating these concerns.
Number 300
MORRIS VERVERS, Superintendent, Klawock School District, testified
via teleconference. He described the events that happened in their
school. A student spotted a hidden camera in the girls locker room
which led to a series of video equipment systems in the attic,
including the capacity for videotaping and viewing from several
different angles in the girls locker room. The police and state
troopers investigated the situation. This was psychologically
traumatic to the students and staff, who were offered counseling.
At that time they were not aware this incident was not a violation
of law. Had they known at the time this deed was not in violation
of the law, the trauma would have been much greater. The only
thing this individual can be charged with is misuse of equipment
and possible damage to the locker room, but nothing regarding
invasion of privacy. He wanted to see a bill passed that would
protect students from this kind of thing happening. He agreed the
language on posting a notice was a bit complicated, and was in
support of cleaning that up a little.
Number 370
REPRESENTATIVE VEZEY asked if anyone had looked into what civil
recourse was available.
MR. VERVERS replied there had been no stone unturned in the
Attorney General's Office, including the possibility of someone
suing the school for violation of privacy.
REPRESENTATIVE VEZEY asked if any individuals involved had looked
into recourse in the civil courts for personal violations of their
civil rights.
MR. VERVERS thought some groups have looked into it, but he was not
aware of any of them pursuing it to the point where it could be
determined whether they have a legitimate case.
REPRESENTATIVE MACKIE made it known to the committee the individual
has been charged with criminal mischief for drilling holes in the
ceiling of the school, and misusing some of the school's video
equipment. That was the most they could do. He urged the
committee to further look into this matter, and form the language
to close up this loophole.
CHAIRMAN PORTER noted it has been suggested on page 2, line 11, the
definition of "picture" include, after the word "electronic" on
line 12, "magnetic" so as to include video taping in this category.
He wanted to delete everything in the section on page 2, line 14,
after the word "that", and add "Private exposure means that a
person is exposed in a place or under circumstances that the person
would reasonably believe they were not being viewed and would not
be produced in a picture. He suggested they put these three
considerations into a committee substitute. He then closed the
discussion on HB 188.
HJUD - 02/27/95
CSHB 21 - DRIVER'S LIC. REVOCATION;ALCOHOL/DRUGS
Number 585
REPRESENTATIVE CYNTHIA TOOHEY, bill sponsor, explained the bill.
House Bill 21 closes a small, but important loophole in House Bill
299 which passed last year. The administrative license revocation
can only occur when there has been a violation of the pertinent
state law. That law should be amended to include municipal
ordinance as well as state law. House Bill 21 does this. There
are zero fiscal notes from the Department of Public Safety, the
Department of Health and Social Services, and the Department of
Law. The simple fix will cost the state nothing, but will increase
the effectiveness of the law. She proposed an amendment, on page
2, line 23; it was pointed out that one would assume that a
municipal ordinance would pertain to drug or alcohol violations;
qualification would leave no doubt.
Number 615
MARGOT KNUTH, Assistant Attorney General, Department of Law,
Criminal Division, testified in support of this legislation. She
asked the committee to consider another technical change that would
address the existing problem with the "use it - lose it" law. We
are requiring both probable cause and personal observation by the
officer. For the underlying offenses, probable cause is sufficient
for a case to be made, and for there to be a conviction. So we
have an anomalous situation where the child can be convicted, but
is not subject to the "use it - lose it" provision, when it is
appropriate that there be consistency. One place this occurs is on
page 1, line 7. With this change it would read, "if a peace
officer has probable cause to believe that a person is at least 14
years of age". The same change could be made on page 2, line 17
and 18, replacing "and based on personal observations" with "to
believe". Then it would read, "...one, that the officer had
probable cause to believe that the person was at least 14 years of
age and under 21 years of age." This would create harmony in the
law with what we are doing with the violations and with citing
these juveniles.
MS. KNUTH stated the second issue that has come up with the "use it
- lose it" since the law was enacted, is whether military police
qualify as peace officers, allowing them to enforce this law. They
would like to, but are not certain whether they are included or
not.
CHAIRMAN PORTER noted that a military police officer is not a peace
officer by federal law. You cannot be a police officer and serve
in the military at the same time.
Number 790
REPRESENTATIVE VEZEY thought they could put into the statute that
this particular situation includes military officers. He mentioned
this bill does not make the peace officer have to see the juvenile
in the act of drinking.
CHAIRMAN PORTER added the minor who is, visually, obviously
intoxicated, cannot right now, be arrested. The juvenile can only
be cited, given a ticket, and sent on his way. That is what we are
trying to change. We want to be able to take this individual into
custody because he is in a position of potential danger. A
juvenile could not have his license suspended under the "use it -
lose it," as it stands now.
REPRESENTATIVE JOE GREEN made a motion to adopt Version G of the
committee substitute as their working draft.
Number 800
REPRESENTATIVE TOOHEY made a motion to move the amendment offered
by Margot Knuth, as described above. Seeing no objection, the
amendment passed. She then made a motion to move Amendment Number
2, which would delete from page 2, line 23, "a violation of AS
11.71, [OR] AS 04.16.050, or a municipal ordinance;" and insert:
"(A) a violation of AS 11.71 or AS 04.16.050; or (B) possession or
use of a controlled substance or alcohol in violation of a
municipal ordinance." There was no objection to the amendment so
it was adopted.
REPRESENTATIVE CON BUNDE made a motion to move CSHB 21, as amended,
with individual recommendations and zero fiscal notes, out of
committee. Seeing no objection, it was so ordered.
HJUD - 02/27/95
HB 23 - REFERRALS INVOLVING DENTAL SERVICES
Number 848
REPRESENTATIVE GARY DAVIS, sponsor of the bill, read his sponsor
statement:
"House Bill 23 would prohibit the receipt of compensation by a
dentist for referring a person to another dentist or dental
practice. The American Dental Association Code of Ethics prevents
dentists from profiting from referrals. This legislation codifies
the ethical concern relating to referrals.
"In Section 2, the receipt of compensation by a person or
advertisement referring a dental service is prohibited unless the
compensation for referral is disclosed at the time of referral.
This legislation will help ensure that patients are being referred
to a dentist or dental practice as a result of their quality
service.
"The Alaska Dental Society has had several breeches of their ethics
code and their board has requested this legislation. I feel this
is an appropriate legislative function of the Board of Dental
Examiners under AS 08.36.315."
TAPE 95-17, SIDE B
Number 000
REPRESENTATIVE DAVIS continued to explain the two main reasons for
this bill. One is the public's protection, the other is to comply
with the National Dentistry Code of Ethics.
REPRESENTATIVE GREEN thought the dental society could handle their
ethics problems without involving the government.
REPRESENTATIVE DAVIS answered that is a legal question he cannot
answer, because it is not specifically stated in statute, under
their duties and functions, whether a board or the state has
jurisdiction.
Number 165
DR. JULIE ROBINSON, past President, American Dental Society,
testified via teleconference from Anchorage. She described this
bill to be a consumer protection measure. It is in accord with the
American Dental Association Code of Ethics which forbids fee
splitting, and other means of compensation for referrals. The
Dental Society believes if an agency advertises a referral service
for which a participating dentist is paying a fee, then they should
disclose that information to the consumer. In the past, the
consumer has been led to believe the participating dentists are
recommended by the American Dental Association, when in fact, they
are paying for this referral service. The quality of the dental
service is not considered or verified. The American Dental Society
hopes this legislation will protect the consumer from misleading
advertisement.
Number 200
REPRESENTATIVE BUNDE asked if the Code of Ethics does not apply to
all dentists; in that you can be a licensed dentist, but not a
member of the Dental Society.
DR. ROBINSON answered that was correct.
REPRESENTATIVE VEZEY said if a dentist does not belong to the
Dental Society, are still subject to the Dental Board, which cannot
pose its ethical standards at this time.
DR. ROBINSON said she thought that was correct. The power of the
board is limited. They have only one dentist on their list of
referral. She believed this needed to be in place in order for the
board to do something about it.
Number 245
REPRESENTATIVE VEZEY said he did not care what the Dental Society
does. That is a private association. We are talking about the
Alaska Dental Board.
Number 290
BARBARA GABIER, Program Coordinator, Division of Occupational
Licensing, Department of Commerce and Economic Development,
responded to the questions regarding the Code of Ethics. Those
licensing boards who have adopted a code of ethics have been
required to do so either through statute or regulation. When they
have authority to adopt such regulations, they do have to adopt
them by reference of a specific date of code of ethics. At this
point, she was not aware if the Board of Dental Examiners had
adopted a code of ethics. She added, the Board of Dental Examiners
did receive a copy of this bill at their last board meeting and did
not make any comments one way or the other.
REPRESENTATIVE BUNDE thought the problem was more widespread than
what he is hearing. If this only affects one or two dental offices
throughout the state, it sounds like the problem might self
correct, and these people will go away. He could not imagine a
referral service could keep going with only one or two clients.
REPRESENTATIVE TOOHEY said this is a very widespread problem among
the states, and we are just becoming a part of the problem.
CHAIRMAN PORTER thought this would provide an ounce of prevention.
REPRESENTATIVE TOOHEY moved to pass HB 23 out of committee with
individual recommendations and zero fiscal notes. Hearing no
objection, it was so ordered.
HJUD - 02/27/95
HB 158 - CIVIL LIABILITY
Number 360
CHAIRMAN PORTER, sponsor of the bill, stated he would explain it,
section by section. He explained that a tort is a private or civil
wrong. It occurs as a result of an act or omission for which a
civil suit can be brought. It involves almost everything, except
crimes. He informed the committee members they were free to stop
him to ask questions. He described what is in the Sectional
Summary, beginning with Section 2:
"GENERAL STATUTE OF REPOSE: A law that prevents suits from being
brought after a certain period of time, regardless of whether or
not the statute of limitations has expired. Statutes of repose
begin running when a product is sold or a procedure is performed,
instead of at the time an injury is discovered.
"The purpose of this section is to make it clear that legal actions
involving personal injury, death, or property damage must be
brought within a fair and reasonable time. All crimes have a
statute of limitations in our legal code. The same standard of
fairness should also apply to civil lawsuits.
"This section is considered a statute of repose, prescribing an
eight year period within which any civil action involving injury,
death, or property damage must be filed with the courts. The time
period is measured from the date the construction was completed or
the last act that allegedly caused the harm.
"The eight year period would not apply if the injury, death,
property damage was caused by an intentional act or if there was
intentional concealment of facts that resulted in a delay of over
eight years before the basis for legal action was known. This
section does apply if a shorter period of time for bringing a
particular legal action imposed under another provision of law
applies. The terms for completed construction are defined and
clarified so as not to be misinterpreted by litigants or courts."
Number 550
REPRESENTATIVE TOOHEY asked about DES, a fertility drug given to
mothers in the 1950s.
CHAIRMAN PORTER said the statute of repose previously addressed
product liability. There is some specific language that was in the
bill last year regarding product liability which we have taken out.
There was also, under Section 2, "The last act alleged to have
caused the personal injury, death, or property damage..." could
allude to a general statement on product liability, and that is not
our intent. The amendment he would offer later on will take that
out. This applies to construction and medical cases, but not to
product liability.
Number 575
REPRESENTATIVE FINKELSTEIN asked about a situation under Section 2,
where, perhaps a building is constructed over four years, and the
act alleged to have caused personal injury is the faulty pouring of
the concrete. It sounds like Section 1 applies to a building, does
Section 2 apply as well? In this case, it would not be eight years
from completion of the building, it would be only five years from
completion of the building.
CHAIRMAN PORTER answered that the substantial completion of the
construction would be the specific qualification for the time that
would start any construction claim; not when the subcontractor has
done things prior to the substantial completion.
CHAIRMAN PORTER continued, "Section 3, LIMITATION ON ACTIONS
AGAINST HEALTH CARE PROVIDERS: A law that requires lawsuits to
begin within a specified time period from when the plaintiffs knew
they were injured. When the statute of limitations has expired,
the lawsuit can no longer be brought.
"Under current law, in medical malpractice claims, one may file a
claim within two years upon discovering the injury. This section
states that the two-year limitation does not apply to minors under
the age of six. Minors must bring legal actions within two years
or before their eighth birthday - whichever is longer. Tolling of
the time limitation provides additional protection for minors. The
clock stops, if fraud by a parent, guardian, insurer, or health
provider, is the reason action was not taken. Time is also
extended for minors if there was an intentional concealment of
facts, or the undiscovered presence of a foreign body with no
therapeutic or diagnostic purpose, provided this specification
applies to the legal action being brought.
"The third part of this amendment defines terms to ensure that the
statute is understood and applied fairly."
CHAIRMAN PORTER then went on to explain that the eight years
statute of repose would apply to a situation where a foreign body,
such as a forceps, is left inside of a person's rib cage during
surgery. He continued, "Section 4, CERTAIN STATUTORY LIABILITIES
TO BE BROUGHT IN TWO YEARS: This section removes unclear and
conflicting language from the statute. The existing two-year limit
for actions involving libel, slander, assault, battery, seduction,
or false imprisonment remains the same.
"Section 5, GENERAL STATUTE OF LIMITATIONS: This section places
a two-year limit on actions involving injury, death, or property
damage after the date claimants could reasonably believe they had
a claim.
"It requires that a person commence a civil action for personal
injury, death, or property damage within two years of the time the
person knows or should have known of the injury, death or damage.
It provides that this section does not apply if a shorter period of
time is required under another provision of law."
Number 675
REPRESENTATIVE FINKELSTEIN asked what the definition for "accrual
of action" was.
CHAIRMAN PORTER answered "accrual of action" is a common legal
term, that is defined in statute.
Number 685
ANNE CARPENETI, Committee Aide, said it is defined in Title 9.
CHAIRMAN PORTER said "Section 6, NONECONOMIC DAMAGES: Money
awarded that does not compensate the injured person for monetary
loss, but rather, for example, for pain and suffering.
"Economic damages: Money awarded to an injured person to
compensate for his or her actual monetary loss. For example,
economic damages compensate for medical costs and lost wages.
"This section extends the definition for noneconomic losses to
include claims for wrongful death as well as personal injury. The
definition is clarified by removing "negligence" which is difficult
to establish or disprove. The change further defines noneconomic
losses to include loss of consortium, (i.e., the right to a
husband's or wife's fellowship).
"This section provides that damages for noneconomic losses are
limited to certain types of injuries, such as pain and suffering;
limits damages for noneconomic losses to $300,000, except that
damages are limited to $500,000 for certain specified injuries;
provides an exception for damages awarded against a person
committing or attempting to commit a felony; provides that multiple
injuries sustained as a result of a single incident shall be
treated as a single injury for the purpose of this section."
Number 765
CHAIRMAN PORTER continued, "Section 7, PUNITIVE DAMAGES: Sometimes
called exemplary damages, punitive damages are awarded in to punish
a defendant for a malicious, intentional act rather than one that
is merely negligent.
"The current statute allows punitive damages to be awarded when
there is `clear and convincing evidence,' but, does not explain
evidence in what actions. This section requires that punitive
damages may not be awarded unless malice or conscious acts showing
deliberate disregard of another person by the person from whom the
punitive damages are sought is shown.
"Section 8, LIMIT OF PUNITIVE DAMAGE AWARD: Any awards for
punitive damages will be at most $300,000 or up to three times the
amount of compensatory damages awarded. Further, one-half of the
award will be deposited into the general fund of the state.
"Section 9, DAMAGE CALCULATION: The term `death' is added so that
the statute applies to damages awarded for legal actions involving
both personal injury and death.
"The added text states that after past and future economic and
noneconomic losses have been calculated by the court, the amount of
state and federal taxes that would have been paid is subtracted
from the award. The amount of tax should be calculated using the
state and federal tax rate at the time of the injury or death.
"IRS code 104(A)(2) allows income from awards involving personal
injury or death to be exempt. Under current statutes, awards are
calculated as the gross loss to the claimant. Therefore, the
prevailing party is awarded their actual past and projected loss,
plus the amount they would have paid in taxes under normal
circumstances. Claimants are being compensated as if future
earnings were tax exempt.
"This section ensures that the prevailing party is fairly
compensated for actual after-tax losses. Specifying how the tax
rates should be calculated removes the need to speculate how much
future taxes will be and prevents future litigation for award
adjustments."
TAPE 95-18, SIDE A
Number 000
CHAIRMAN PORTER said, "Section 10, PERIODIC PAYMENTS: Under a
periodic payment system, lawsuit awards are paid to the plaintiff
throughout his or her lifetime, for the period of disability or for
any other set period, instead of a lump sum.
"This section changes the phrase `an injured party' to `a party.'
This allows anyone involved in the suit, rather than just the
claimant, to request periodic payments for amounts awarded for
future damages.
"Requires that future economic and noneconomic damages that exceed
$100,000 be paid periodically whether or not it is requested by a
party. Provides that a portion of a judgment owed to an attorney
under a contingent fee agreement, must be reduced to present value
and paid in a lump sum."
Number 070
REPRESENTATIVE GREEN asked about the possible scenario where there
is going to be $100,001 payment over a three year period, and the
attorney's fee is one-third. If you discount the second and third
year to the present, it is conceivable that the awardee would be
out for almost his first year's compensation. Because a third of
that is brought forward to the second and third year, according to
the way this is written.
CHAIRMAN PORTER said the attorney's fee is taken out of the award,
reduced to present value, and given to the attorney. Still you are
right. If, for example, there were a three-year award of $50,000
each, that would be $150,000 due the plaintiff. If the contingent
fee was 50 percent, which is quite high, but if it were, that would
reduce it to $75,000, and that is what would be spread out over
three years. The $75,000 would be given to the attorney in a lump
sum, while the remaining $75,000 would be spread out over a three
year period to the plaintiff.
Number 175
CHAIRMAN PORTER explained "Section 11, SECURITY FOR PERIODIC
PAYMENTS: Requires that the court require security be posted for
periodic payments, except when the obligation is recognized by the
state or an insurer. Requires that the judgment include increases
for future anticipated inflation. Provides to the judgment
creditor damages caused by the failure to make periodic payments,
including costs and attorney fees.
"Section 12, INFLATION ADJUSTMENTS FOR PERIODIC PAYMENTS: The
words `for personal injury or death' are added to the statute.
This section clarifies what types of damage awards are being
regulated by this statute.
"Courts must specify the percentage or the method for increases by
future periodic payments will increase to cover inflation.
"By specifying the amount or method allowed for inflation, the
amendment prevents future litigation for an adjustment of the
original award.
Number 300
"Section 13, COLLATERAL BENEFITS: A trial where the jury is not
told that the injured person has received money for their injury
from other sources, such as an insurance policy or another
defendant.
"This prevents unjust enrichment from claimants who collect
multiple awards for the same loss.
"Prohibits a claimant from recovering damages that duplicate
amounts received from collateral sources. Provides exceptions for
certain collateral sources that are subrogated to the claimant, and
for death benefits and workers' compensation benefits. Allows a
person defending a claim to introduce evidence of amounts received
from certain collateral sources. Prohibits a person who provides
a collateral benefit that is introduced into evidence from
recovering that amount from the claimant or being subrogated the
rights of the claimant.
Number 360
"Section 14, APPORTIONMENT OF FAULT: Provides that the court shall
determine each party's equitable share of the obligation to each
claimant. Provides that assessment may only be used to measure
percentages of fault and not to subject a person to civil
liability.
"The word `party' creates a loophole that restricts apportionment
of fault to those named in the legal action. By considering all
persons or entities which contributed to a loss, each is fairly
apportioned a degree of fault based on their own actions.
"Thus, this section provides that the court shall determine each
party's equitable share of the obligation to each claimant.
Provides that an assessment may only be used to measure percentages
of fault and not to subject a person to civil liability.
"Section 15, APPORTIONMENT OF FAULT: Changes the statute number to
conform with revised law and clarifies the rules so that all
parties that contributed to injury or death are fairly considered
when assessing the percentage of fault.
"Section 16, EFFECT OF RELEASE: Provides that a release given in
good faith does not discharge another person from liability, but
does reduce the total amount awarded by the jury or court by the
amount stipulated in the release or the consideration paid for it,
whichever is greater.
Number 450
"Section 17, OFFERS OF JUDGMENT: The existing statute says that
prior to 10 days before trial begins, either party can make an
offer to settle a claim, plus accrued costs. This must be accepted
within 10 days and correctly recorded by the clerk.
"If the court's judgment is less favorable to the recipient of the
offer, the person who refused the offer must pay the offerer's
costs and attorney fees incurred since the date when the higher
offer to settle was made."
Number 520
REPRESENTATIVE FINKELSTEIN felt this provision would cover
unreasonable offers as well as reasonable offers.
REPRESENTATIVE VEZEY agreed the wording was vague.
CHAIRMAN PORTER continued, "Section 18, PREJUDGMENT INTEREST: The
section changes the interest rates on judgments and decrees from a
set 10.5 percent a year to a floating rate of 3 percent above the
federal discount rate in effect January 2nd of the year of the
judgment. This rate is not used if a different rate has previously
been agreed to by contract.
"Federal discount rates have been as low as 1 percent (1942) and as
high as 14 percent (1981). Allowing annual adjustments for
prejudgment interest brings charges in line with the current market
and prevents unfairly high or low rates.
"Provides that the rate of interest on judgments and decrees,
including prejudgment interest, is equal to prejudgment interest
for certain future damages or punitive damages.
"Section 19, PREJUDGMENT INTEREST: The purpose for the prejudgment
interest is to allow claimants reimbursement of funds that would
normally have been in their possession plus any interest that
amount could have earned prior to the trial. This is not the case
in damages awarded for future losses and these sums can be invested
and interest earned on the funds.
"Prejudgment interest is subject to federal income tax and attorney
fees commission.
"Section 20, UNIFORM ARBITRATION ACT: Amends the section on
application of the Uniform Arbitration Act so that it applies to
the statutes as listed after adoption of House Bill 158.
"Section 21, MEDICAL EXPERT WITNESS QUALIFICATION: This section
establishes qualifications for an expert witness to testify on
issues relating to appropriate medical standard of care unless the
witness is a health care provider.
"MEDICAL BOARD OVERSIGHT OF MEDICAL EXPERT WITNESSES: Establishes
guidelines for the court as to when to allow a medical expert
witness to testify in cross-examination.
"Section 22, DEFINITIONS: Provides definitions for professional
negligence and professional services.
"Section 23, CONTINGENT ATTORNEY FEE AGREEMENTS: Provides that if
an attorney collects a contingency fee in connection with an award
of punitive damages, the contingent fee due the attorney shall be
calculated after that portion of punitive damages due the state has
been deducted from the total award of damages.
Number 530
"Section 24, CIVIL LIABILITY OF HOSPITALS FOR NON EMPLOYEES: The
purpose of this section is to clarify the circumstances in which
hospitals are held directly liable for the actions of health care
providers not employed by the hospital. Current law permits
claimants to sue only the hospital rather than the independent
contractor who may have less ability to pay.
"Provides that a hospital is not liable for civil damages resulting
from an act or omission by a health care provider who is not an
employee or actual agent of the hospital. However, the hospital
must provide notice that the health care provider is an independent
contractor and a notice of limited liability must be posted in all
admissions areas and published in area newspapers annually.
"The hospitals must also use caution and prudence in granting
privileges to independent health care providers, have a review
proceeding to monitor independent contractors, and be prepared to
revoke or restrict privileges when needed.
"Hospitals are liable for civil damages if the hospital or its
employees were negligent or acted with intentional misconduct.
"The final section defines health care providers and hospitals as
the terms are used in this statute.
Number 610
"Section 25, DAMAGES RESULTING FROM COMMISSION OF A CRIME:
Provides that a person committing, attempting to commit, or fleeing
from the commission of a felony whose action substantially
contributed to the person's injury or death, is prohibited from
recovering damages from personal injury or death.
"Section 26, SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS;
SANCTIONS: Sanctions for failure to sign a pleading or filing a
frivolous lawsuit is a matter in the discretion of the trial court.
This section imposes monetary sanctions against any attorney in
civil cases from filing frivolous, unnecessary and legally
deficient pleadings.
"If it is alleged or appears that a pleading, motion, or other
paper is signed in violation of this section, the court, upon
motion or upon its own initiative, may set the matter for hearing.
If the court determines that the motion is in violation, monetary
sanctions will be implemented.
Number 640
"Section 27, Repealing AS 09.55.548.
"Section 28 through 33, Technical sections relating to amending
Alaska Rule of Civil Procedure 49.68.702 and 95.
"Section 34, Severability.
"Section 35, This Act applies to all causes of action accruing on
or after the effective date of this Act.
"Section 36, This Act takes effect July 1, 1995."
Number 650
CHAIRMAN PORTER stated the work session on HB 158 was over, and on
Wednesday, March 1, the bill would be open to public testimony.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:05 p.m.
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