Legislature(1995 - 1996)
03/03/1995 01:13 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 3, 1995
1:13 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
All members present
COMMITTEE CALENDAR
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."
PASSED OUT OF COMMITTEE
*HB 150: "An Act relating to receipts for bail forfeited in
satisfaction for certain offenses."
SCHEDULED BUT NOT HEARD
*HB 151: "An Act relating to magistrate jurisdiction in
presumptive death proceedings."
SCHEDULED BUT NOT HEARD
*HB 153: "An Act relating to the surety bond for certain judicial
officers."
SCHEDULED BUT NOT HEARD
(* First Public Hearing)
WITNESS REGISTER
CONNIE ADAMSON
P.O. Box 353
Sutton, AK 99674
Telephone: (907) 745-1816
POSITION STATEMENT: Opposed HB 158
DAN MIDDAUGH, Alaska Health Project
1818 West Northern Lights Boulevard, No. 102
Anchorage, AK 99517
Telephone: (907) 276-2864
POSITION STATEMENT: Opposed HB 158
STEVE CONN, Executive Director
Alaska Public Interest Research Group (AKPIRG)
P.O. Box 101093
Anchorage, AK 99510
Telephone: (907) 278-3661
POSITION STATEMENT: Opposed HB 158
RHONDA SCOTT
3866 Helvetia Drive
Anchorage, AK 99508
Telephone: (907) 561-4959
POSITION STATEMENT: Opposed HB 158
DIXIE ALMS, Public School Speech Pathologist
P.O. Box 210272
Auke Bay, AK 99821
Telephone: (907) 790-2286
POSITION STATEMENT: Commented on HB 158
JIM FORBES, Assistant Attorney General
Fair Business Practices Section
Civil Division
Department of Law
1031 West 4th Avenue, No. 200
Anchorage, AK 99501
Telephone: (907) 269-5222
POSITION STATEMENT: Provided information on HB 158
MICHAEL LESSMEIER, Attorney
State Farm Insurance Company
One Sealaska Plaza, Suite 303
Juneau, AK 99801
Telephone: (907) 586-5912
POSITION STATEMENT: Provided information on HB 158
DANIELLA LOPER, Administrative Assistant
to Representative Brian Porter
Alaska State Legislature
State Capitol, Room 118
Juneau, AK 99801-1182
Telephone: (907) 465-3940
POSITION STATEMENT: Provided information on HB 158
PREVIOUS ACTION
BILL: HB 158
SHORT TITLE: CIVIL LIABILITY
SPONSOR(S): REPRESENTATIVE(S) PORTER, Toohey
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
02/27/95 (H) MINUTE(JUD)
03/01/95 (H) JUD AT 01:00 PM CAPITOL 120
03/01/95 (H) MINUTE(JUD)
03/03/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 150
SHORT TITLE: RECEIPTS FOR BAIL FORFEITURES
SPONSOR(S): JUDICIARY BY REQUEST
JRN-DATE JRN-PG ACTION
02/03/95 236 (H) READ THE FIRST TIME - REFERRAL(S)
02/03/95 236 (H) JUDICIARY
03/03/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 151
SHORT TITLE: MAGISTRATE PRESUMPTIVE DEATH JURISDICTION
BILL VERSION:
SPONSOR(S): JUDICIARY BY REQUEST
JRN-DATE JRN-PG ACTION
02/03/95 236 (H) READ THE FIRST TIME - REFERRAL(S)
02/03/95 236 (H) JUDICIARY
03/03/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 153
SHORT TITLE: BONDS FOR JUDGES
SPONSOR(S): JUDICIARY BY REQUEST
JRN-DATE JRN-PG ACTION
02/03/95 236 (H) READ THE FIRST TIME - REFERRAL(S)
02/03/95 236 (H) JUDICIARY
03/03/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-21, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:13
p.m. on Friday, March 3, 1995. A quorum was present.
HJUD - 03/03/95
HB 158 CIVIL LIABILITY
CHAIRMAN BRIAN PORTER stated that HB 158 would be the only bill
heard. The committee had concluded the public hearing on
Wednesday, but because they had anticipated it might go through
Friday, a few people were told they did not have to testify on
Wednesday, but could do so on Friday. Those few people were called
on to testify.
Number 040
CONNIE ADAMSON, Sutton Resident, testified via teleconference. She
said she is totally against any type of tort reform that does not
provide the plaintiff the same opportunities as the defense. She
feared tort reform would take away rights of the plaintiffs'
attorneys to access information from the defense counsel.
Number 055
DAN MIDDAUGH, Alaska Health Project, testified via teleconference,
objecting to the bill as it is presently written. He did not
believe it was fair and reasonable. Both the plaintiff and the
defense have the right to real and definable recompense in cases
involving accidents. He thought this bill would be against the
better interest of the majority of Alaskans.
Number 077
STEVE CONN, Executive Director, Alaska Public Interest Research
Group (AKPIRG), testified via teleconference. The subject of tort
reform is of interest to him both as Executive Director of AKPIRG
and also, for many years, as a Professor of Justice, at the
Criminal Justice Center where Representative Porter was a mentor.
It was no surprise to him to see another attempt to adjust the
system of civil litigation; however, the benefits of these changes
are essentially unproven. The impact of the changes previously
made to civil litigation should be looked at. These changes affect
every aspect of the civil litigation system, as well as the
malpractice insurance rates. AKPIRG did a study on the first
version of tort reform which led to our present workers'
compensation system. They also examined our present day system,
finding it to be a disaster and a failure that serves no one's best
interest. It allows litigation to occur when it should not. The
bill focuses change in the wrong direction.
Number 215
RHONDA SCOTT testified via teleconference. She felt the present
system was fair and that capping punitive damages does not send the
necessary message to the wrongdoer. She described an example where
Ford motor company was sued, and the punitive damages awarded in
the case equaled one month's profits for the company. This was a
punishment severe enough to sting them. To save money, Ford
knowingly built a dangerous car they knew would result in people
being killed. A punitive damage cap would not have allowed a
punitive damage award large enough to give them the right message.
This cap implies that a jury is not capable of making good
decisions. The cap needs to be large enough to give a company the
incentive to change. She also expressed that half of the award
should not go to the state's general fund. Why should the state
profit from someone else's personal lawsuit?
Number 335
DIXIE ALMS, Public School Speech Pathologist, understood the
committee would be talking about product liability. She came to
talk about DES, which is a drug used with women from the early
1940s until 1971.
CHAIRMAN PORTER told her product liability is out of the bill. He
then clarified that it is not clearly out of the bill yet, but he
was prepared to offer an amendment making it painfully clear
product liability is out of the bill.
MS. ALMS said she would hold her testimony until it was necessary.
Number 355
REPRESENTATIVE DAVID FINKELSTEIN argued that 90 percent of the
provisions in the bill will still apply to product liability. Only
one section, the statute of repose, is where the exemption is. He
then asked Jim Forbes, who was on line for testimony via
teleconference, if there was a more recent letter than March 8,
1994, which would outline the position of the department.
JIM FORBES, Assistant Attorney General, Fair Business Practices
Section, Civil Division, Department of Law, testified via
teleconference. He answered there is nothing more recent with
specific regard to HB 158.
REPRESENTATIVE FINKELSTEIN was interested in the views of the
Department of Law on many sections of this bill. He asked Mr.
Forbes to go through the sections of the bill, outlining the
constitutional problems or potential problems which would conflict
with court rules; or just practical problems in his experience that
exist.
Number 390
MR. FORBES summarized it. The analysis they did last year showed,
in large part, that the bill had constitutional flaws. The bill is
dealing with the right of the average citizen to access the court
system, and to be compensated for injuries. On the average, tort
reform does not have the effect of reducing insurance rates.
Insurance rates are effected more by the investments the insurance
companies make, and do not really have that much to do with the
types of tort reforms that have been adopted from state to state.
One out of every 500 Americans lives in Alaska, and insurance
premiums are scheduled primarily on a national basis. He finds
this bill unconstitutional, simply because it would not reduce
those insurance rates.
Number 470
REPRESENTATIVE FINKELSTEIN referred to Sections 5 and 3 relating to
the separate treatment for minors. What part of this section
reflects the reasoning behind existing law? Is it because of the
inability of minors to speak for themselves? What are the existing
laws involving minors?
Number 495
MR. FORBES said he was not an expert in children's cases. Courts
have said that if a party does not have the right to bring a claim
on their own behalf, it is a violation of the fundamental right of
due process to deny them the right to bring a cause of action. For
this year's bill, he was fairly confident that would be a major
consideration by the courts.
REPRESENTATIVE FINKELSTEIN asked if these sections would extinguish
the existing right of minors to due process.
MR. FORBES answered that the minor must depend upon a parent or
guardian to bring the claim; since the minor does not have the
capacity to bring the claim on his or her own behalf. These rights
are extinguished if the parent is neglectful or unwilling to bring
the child's claim forward to the court. The courts would have a
great deal of difficulty with that provision the way it is written.
REPRESENTATIVE FINKELSTEIN asked whether the conflict described was
a court case based on interpretation of statutes, or on the
constitution.
MR. FORBES explained that prisoners, in the past, did not have the
right to bring civil claims. In a case where a prisoner was
injured even before he went into prison, he could not file a
lawsuit while incarcerated, because his right did not exist. To
invoke the statute of limitations against that prisoner would
violate the due process provision of the Alaska Constitution.
REPRESENTATIVE FINKELSTEIN asked if Alaskan decisions on punitive
damages have been excessive; and if these excessive decisions are
the target of this legislation. He asked if there was a way to get
the number of cases awarding over $300,000.
MR. FORBES said someone in the Court System would know those
figures.
REPRESENTATIVE FINKELSTEIN asked Mr. Forbes if he had run across
many cases where there are large awards for punitive damages, in
state court.
MR. FORBES said he had run across a few cases with very large
punitive damage awards; but, in reality, you do not hear of many of
them being upheld.
REPRESENTATIVE FINKELSTEIN said he would like to get statistics for
Alaska state cases involving large punitive damage awards.
CHAIRMAN PORTER said in the last large case he recalled, the appeal
was denied, and the award was upheld. it was a $4.5 million
punitive damage award to an Alaskan company just a couple of weeks
ago. It is happening.
REPRESENTATIVE FINKELSTEIN was not doubting that it is happening,
he just wanted to know the totality of this category.
CHAIRMAN PORTER said the totality of the category is not the
problem. The problem is the exposure that businesses have to the
perhaps infrequent occurrence of that exposure, which it has to be
insured against. The insurance company has to recognize that there
is a risk, and they probably factor the odds of the risk into the
calculation of premiums. But if the rare occurrence happens to
fall upon their client, it has to be insured against. That is the
problem.
REPRESENTATIVE FINKELSTEIN agreed that is a problem, but it is not
the one and only problem. There is also the problem of making sure
companies and individuals that operate in the state of Alaska, who
act with reckless disregard for the interests of our citizens, are
punished when appropriate. While an anecdote or two may make the
case for one point; the point he was trying to make can only be
made by looking at the whole picture. How often are these actually
applied? Are these taken as a whole category, such that we would
agree that punitive damages are appropriate? He wished to find
some way of achieving this information before the bill reached the
next committee. It is very important information as to what has
happened. We are trying to solve a problem here; not just with
punitive damages, but in every section. We ought to know how often
these kinds of things occur in Alaska, and what the circumstances
have been; because it may make your case, and it may make my case.
Number 650
REPRESENTATIVE FINKELSTEIN asked Mr. Forbes about periodic payments
in Section 10. How do they fit into whatever IRS exemption exists?
CHAIRMAN PORTER said the amendment he would be offering later makes
it clear that if we changed the existing federal damage award tax
exemption, then obviously, we would not want to reduce the award by
that amount.
REPRESENTATIVE FINKELSTEIN said he agreed, that in the case of
periodic payments, he understood a lump sum payment to be clearly
exempt. Periodic payments are not necessarily exempt. Do we have
any information that says periodic payments are exempt under
existing law? Because if they are not necessarily exempt, then we
are, in fact, deducting taxes from them.
CHAIRMAN PORTER understood compensatory damage awards to be tax
exempt. He did not think making the payments periodically, would
automatically place them back into the taxable category.
REPRESENTATIVE FINKELSTEIN asked if Mr. Forbes had experience in
this.
MR. FORBES said no.
REPRESENTATIVE FINKELSTEIN said this is not a matter of state law.
This is a matter of what the IRS standards are. He said he would
like information on periodic payments, and how and if they fit into
tax exemption.
CHAIRMAN PORTER thought the amendment would cover that.
Number 690
REPRESENTATIVE FINKELSTEIN asked Mr. Forbes' views on the issue of
collateral benefits, and what gets introduced into the jury system.
MR. FORBES answered, not having done extensive research on it, the
law considers that insurance issues are something that should not
be considered by the jury when trying to determine economic
damages. For that reason, there has been a rule for a long time
that a plaintiff cannot introduce evidence showing that the
defendant has insurance to pay a claim. This evidence may cause a
jury to focus on something other than the actual damages that have
been proven in the case.
Number 715
REPRESENTATIVE FINKELSTEIN asked about Section 14, regarding
distribution of fault and inclusion of parties that are not in the
lawsuit. If you name a party that is protected somehow or other,
like the state, in regard to workers' compensation cases; or if it
is some party that just does not exist for one reason or other, say
they have disappeared from the scene, or cannot be reached; what
happens if the state is all of a sudden a party to these cases?
Does the state defend itself? How does it actually work when you
have three or four defendants, and one or two of them are
participating in the case, in terms of being named, but do not have
anything at risk?
MR. FORBES said the party being sued has rights to name another
party who they believe to be at fault. The trial would be more
unbalanced if the person was not available to defend himself or
herself.
Number 790
REPRESENTATIVE FINKELSTEIN referred to Section 21, regarding the
expert witness qualification, and asked if retired doctors were
being excluded?
CHAIRMAN PORTER said it depends on how long ago the doctor retired,
and whether or not he/she is still involved in any teaching or
practicing. The idea is that a court and jury wants to get
information that is as current as possible. Some doctors quit
practicing to become medical testimony experts, and spend 10 to 15
years in this endeavor, without having the benefit of updating
their medical knowledge or information. What this section is
attempting to do, is to make sure the courts and juries get current
information from the expert witnesses.
REPRESENTATIVE FINKELSTEIN felt this exclusionary provision would
only allow people to be expert witnesses if they did not have spare
time on their hands, and therefore, would not really be available
to testify.
REPRESENTATIVE CYNTHIA TOOHEY stated she has to take medical
classes all the time to keep up to date. Someone who is unaware of
the evolving medical developments, does not realize it is changing
daily. Unless you are involved with it daily, or doing some
extensive studying, you are not going to be qualified to do
anything.
REPRESENTATIVE FINKELSTEIN asked who fits into the category of
being certified by a board. Are those people who are making a
living being expert witnesses, certified? Do they fit into number
(2) at the top of page 13?
CHAIRMAN PORTER thought number (3) was more relevant to what
Representative Finkelstein was asking. That is a qualification on
currency; saying that within a year of the date of the alleged
occurrence giving rise to the claim, the expert witness was an
active health care provider, or devoted a substantial portion of
time teaching in an accredited school.
Number 850
REPRESENTATIVE FINKELSTEIN asked about the new definition of
professional negligence. It sounds like a critical definition. A
lot of medical cases seem to revolve around negligence. What is
the existing standard? What about someone who simply fails to
render services? Will that group be excluded by this definition?
CHAIRMAN PORTER said he presumed the current standard was listed in
case law as opposed to current statute. What we are trying to do
here, is list it in statute, so we know what we are talking about.
He could not imagine a situation that would not be covered under
this definition. This is not a restrictive definition, it is
totally expansive. It refers to a negligent act or omission by a
health care provider in rendering professional services. That
covers everything.
TAPE 95-21, SIDE B
Number 000
REPRESENTATIVE FINKELSTEIN feared this definition could be
interpreted another way. Someone could argue they were not
involved in negligence because they were not rendering any
professional services.
REPRESENTATIVE TOOHEY asked Mr. Forbes if he recommended putting no
caps for pain and suffering on auto liability policies.
MR. FORBES understood the Administration has a policy concern about
limiting access to the court system by ordinary Alaskans. Along
those lines, a $300,000 cap will deny certain middle class, or
ordinary Alaskans, access to the courts when they are injured. As
it relates to automobile accidents, he would give those separate
considerations, because minimum insurance requirements are the
legislature's determination on what you have to do to prove you are
a responsible individual, capable of responsibly operating a car on
highways. The $300,000 cap would certainly discourage some people
from making a claim.
REPRESENTATIVE TOOHEY assumed Mr. Forbes did not want to put a cap
on these policies.
MR. FORBES did not feel a cap would be unreasonable; but let's face
it, $300,000 is not what it used to be.
Number 090
REPRESENTATIVE TOOHEY asked if, under our current system, two
people were injured; one is injured by a person with automobile
coverage of $100,000; and the other is injured by a driver of a
state truck; do they both collect the same amount for pain and
suffering? Assume they have the exact same injuries.
MR. FORBES said they probably would not collect the same amount.
Number 180
MIKE LESSMEIER, Attorney, State Farm Insurance Company, has done
almost exclusively trial work. State Farm has approximately 32
percent of the automobile liability insurance market in the state,
and approximately 43 percent of the homeowners market. He said
there are basically four purposes of tort reform. One is to take
the windfalls that exist in our system, and try to eliminate them.
This bill does a good job of that. The second purpose ought to be
to increase predictability, because the cases they are involved in
that cost the most to defend, and that cost the system the most,
are the cases that we cannot predict the result of. Punitive
damages is a good example of that, because what happens with
punitive damages, is, when you ask about the awards, you see the
tip of the iceberg. You do not see the number of cases that are
actually defended, that do not result in any awards. That is a
tremendous cost to the system. That is a policy issue you have to
decide, but it is an issue. The third issue you ought to look at
is to clarify the intent of the voters, particularly with respect
to the 1988 initiative. It is connected to the issue of
predictability. If you can reduce the amount of money spent on
both sides on attorneys, and put more money into the injured
person's pocket, that is a wonderful goal, and that is what the
goal of tort reform ought to be.
MR. LESSMEIER responded to some of the testimony. He said State
Farm has a different viewpoint from Mr. Forbes, with respect to how
insurance companies set rates. State Farm sets rates based on its
experience in Alaska. He suspected the Division of Insurance would
take great issue with the statement that rates are based on
investment income. That is not an appropriate way to underwrite
insurance business, so if you looked at the malpractice carriers,
and the automobile insurance carriers, he thought you would find
that those rates are based on Alaska experience. Alaska experience
is going to be directly affected by the changes you either choose
to make or do not choose to make in this bill.
MR. LESSMEIER also responded to the issue of access to the court
system, based on a cap. He felt the issue of a cap was a policy
issue that everyone has to decide, but he did not see that as an
access issue. Going by Representative Toohey's example, we
currently require automobile insurance caps at $50,000, $100,000
and $25,000. That has not reduced access to the tort system. It
is almost inconceivable that there would be a case out there that
would have $300,000 of non-economic damages that would not warrant
an attorney taking it, because to get $300,000 of non-economic
damages, you are going to have some economic damages as well.
Typically, you will find the economic awards to be at least equal
to, or higher than the non-economic award. In California, there
has been a reduction in access to the court system because of the
cap they had. The level of the cap is a policy issue. You simply
need to decide how much predictability you want to have in your
system, because when you take the big exposure out of the system,
you are increasing predictability, and lowering the cost of
litigation, the areas of dispute. You probably have another
benefit as well. In a way, you increase access, because the very
same person Representative Toohey is talking about may be injured
by someone that has a higher level of insurance. You might make
that level of insurance more available to people. In that way, you
would give greater access to at least that level of coverage. That
is one of the issues you have to think about, regardless of where
you draw the line. Today we have a lottery system and this debate
has been going on for ten years. We have a system of
fortunate/unfortunates today. They are unfortunate enough to be
seriously injured, but fortunate to be injured by someone who
happens to be in the state of Alaska. Would we be better off if we
had more people that had a certain level of coverage available?
That is really the issue.
Number 555
REPRESENTATIVE CON BUNDE asked if the cost of insurance would
decrease with the passage of this bill.
Number 560
MR. LESSMEIER said in California, it took ten years to find that
the medical malpractice legislation was going to be effective.
They spent five years with the tort reform initiative before they
found out what the Supreme Court was going to do with it. What you
will find, is if these provisions are effective immediately, that
means they will actually be effective with respect to cases that
arise after July 1 of 1996. You will see a couple of years where
we continue to deal with cases that have arisen under the present
system of law. Yes, you would see definite improvements if this
bill is passed.
CHAIRMAN PORTER announced the conclusion of the public testimony
portion of the hearing, and began introducing amendments.
REPRESENTATIVE BETTYE DAVIS expressed that she felt there were
other ways some of these issues could be resolved rather than
through this bill. She understood it was not a victims' rights
bill, but would correct some concerns insurance companies and
doctors might have; but she also felt they were eroding away some
benefits, or doing harm to those who cannot help themselves,
particularly, children. There is a portion of this bill that would
not be very good for them. She had no problem with the section
that would do away with the windfalls, giving the system some
predictability. If litigation fees can be reduced, she had no
problem with that, either. She did not feel that would really
happen, though. She believed this bill would increase litigation
costs, because every time there are new regulations, there are
always new challenges. If there is a problem with malpractice
insurance, could we not cap that? Are there not other ways we can
solve some of these issues?
CHAIRMAN PORTER noted during the course of offering amendments,
there would be much debate and opportunity to discuss what we think
the bill will or will not do.
REPRESENTATIVE DAVIS felt some portions of the bill would take away
responsibility from the wrongdoer; specifically taking
responsibility away from hospitals and putting it back on the
patient. She said she had a problem with that.
Number 640
CHAIRMAN PORTER said there was an amendment that deals with that,
and they could debate it when it is offered. He offered his first
amendment:
Page 4, lines 27-29, delete all materials and insert:
"(1) the personal injury, death, or property damage
resulted from
(A) an intentional act or gross negligence;
(B) fraud or fraudulent misrepresentation;
(C) breach of an express warranty or guarantee; or
(D) a defective product; in this subparagraph, "product"
means an object that has intrinsic value, is capable of
delivery as an assembled whole or as a component part, and
is introduced into trade or commerce;"
CHAIRMAN PORTER explained this adds the things that are not
intended to be within the statute of repose. This provides that
product liability is not intended to be considered under the
statute of repose.
REPRESENTATIVE AL VEZEY objected. He did not understand why we
would not want to include product liability in the statute of
repose.
CHAIRMAN PORTER said he did not intend to support the amendments he
has seen so far, except these three. The reason being, while some
of them are seeking to mitigate, compromise, and work things out;
we have spent two years on this bill, in that formative process.
If we go any further the bill will start to lose its capacity to
perform the goals we are seeking, which is reduction of rates and
costs that have been described. Product liability within this
state affects a small population, because we do not have a lot of
manufacturing within the state of Alaska. If that changes, and he
hopes it will, maybe we will want to revisit this, including
product liability at that time. But right now, there are just so
many battles he can fight. That is why it is being excluded.
REPRESENTATIVE VEZEY removed his objection.
Hearing no further objection or discussion, the amendment was
adopted.
Number 730
CHAIRMAN PORTER described Amendment 2. On Page 4, line 28, after
"from":
Insert: "prolonged exposure to a hazardous waste,"
This would actually become (A) of Amendment 1.
CHAIRMAN PORTER explained that this applies to hazardous waste on
property you buy that goes undiscovered for more than eight years.
We are allowing that to be excluded from the statute of repose.
REPRESENTATIVE BUNDE made a motion to move the amendment.
REPRESENTATIVE FINKELSTEIN said there was constant argument about
the definition of hazardous waste. He felt they should use the
term "environmental discharge."
CHAIRMAN PORTER objected to the inclusion of the term
"environmental discharge."
REPRESENTATIVE FINKELSTEIN asked to be directed to the definition
of the term "hazardous waste."
REPRESENTATIVE VEZEY stated it is in the federal register.
CHAIRMAN PORTER noted it was discussed last year and "hazardous
waste" is clearly defined in statute and in regulation. You could
go one of two ways: You could either try to specifically,
absolutely define it, at taking the risk of leaving out something
that is subsequently discovered to be hazardous waste; or else
leave it open with the possibility that someone might try to get
out of it, by saying the substance is not hazardous waste; but then
lose the ability to take in things that develop later on. If we
said this applies to only things presently defined in the statute
as hazardous waste, in ten years we will still be held to that
definition, while other substances should have been added to the
list.
REPRESENTATIVE GREEN made a motion to adopt Amendment 2. Hearing
no objection, Amendment 2 was adopted.
CHAIRMAN PORTER then offered Amendment 3. On Page 8, line 17,
after "death":
Insert "; this paragraph does not apply to economic damages
that are subject to federal or state income taxes"
REPRESENTATIVE BUNDE made a motion to move the amendment.
CHAIRMAN PORTER explained that there were concerns about this.
While current law states that compensatory damage awards are not
taxable, what would happen if, for some reason, the federal law
changed, and they became taxable? This section would address that
concern, as this paragraph does not apply to economic damages that
are subject to federal or state income taxes.
TAPE 95-22, SIDE A
Number 000
REPRESENTATIVE VEZEY objected to Amendment 3. Would the economic
damages tax be subject only to state law?
CHAIRMAN PORTER said it refers to federal OR state tax.
REPRESENTATIVE VEZEY stated the bill says the amount of economic
damages awarded shall be reduced by the amount of federal and state
income tax that would be paid, and with this new amendment, that
exclusion would not apply if there was either a state or federal
income tax on the amendment, or both. He felt the paragraph could
be reworded to refer to the amount that these taxes from which it
was exempt, would be reduced. He was not sure we were saying what
was really intended there.
REPRESENTATIVE TOOHEY asked if it would be more clear to say
"federal AND/OR state income tax."
REPRESENTATIVE VEZEY felt the word should be "or", not "and".
REPRESENTATIVE FINKELSTEIN agreed adding the word "and" made it
worse.
Number 190
CHAIRMAN PORTER felt it was correct the way it was written. He was
going to presume the bill drafter was right. He made a motion to
move the amendment. Hearing no objection, Amendment 3 was adopted.
Number 210
REPRESENTATIVE BUNDE made a motion to move Amendment 4, offered by
Representative Davis. It would delete all material on page 1,
lines 9 through 11.
CHAIRMAN PORTER objected for the purpose of discussion.
REPRESENTATIVE DAVIS said the reason for her suggestion is because
no data has been presented indicating much of an increase in
malpractice insurance premiums. In fact, she has seen materials
showing those premiums are going down.
CHAIRMAN PORTER argued they did have testimony indicating insurance
rates in Alaska, as compared with other states, have risen
outrageously. Information is available to indicate that.
REPRESENTATIVE DAVIS heard that the information was based upon the
Alaska's economy. We pay more for everything else here. It has
nothing to do with anything but the cost of doing business in
Alaska.
After no further discussion a roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Vezey, Toohey, Green and Porter voted no. The Amendment
failed on a vote of two to five.
Number 250
REPRESENTATIVE DAVIS then moved her Amendment 5 which would delete
all material on page 2, lines 18 through 19.
CHAIRMAN PORTER objected for discussion.
REPRESENTATIVE DAVIS felt this would help to ensure that
appropriate compensation would be available to people who are
injured. HB 158 will prevent injured people from recovering
anything. Many of the provisions will increase litigation.
CHAIRMAN PORTER clarified, saying the belief that this legislation
would increase litigation has, to a degree, some merit; considering
there will be new provisions for attorneys to take a shot at.
However, that does not make it not worth the effort of trying to
fix things that many people believe are broken. Consequently, one
of the things that is broken is that patients are unable to obtain
compensation, because they are unable to afford insurance; and in
some cases, cannot afford to get their cases through the courts.
Some attorneys will not take cases unless the potential award is
significantly high.
REPRESENTATIVE FINKELSTEIN argued under this bill, there would be
even much less money available to the attorneys, giving them even
less of an incentive to take cases.
There was a roll call vote taken on Amendment 5. Representatives
Finkelstein and Davis voted yes. Representatives Bunde, Toohey,
Green and Porter voted no. The amendment failed with a vote of two
to four.
Number 360
REPRESENTATIVE DAVIS moved her next amendment, Amendment 6. It
would change the statute of repose from 8 years to 12 years in two
places: Page 4, line 16, and Page 4, line 19.
REPRESENTATIVE VEZEY objected.
REPRESENTATIVE DAVIS felt eight years was not quite a sufficient
amount of time. Other state's statutes of repose vary.
Number 390
CHAIRMAN PORTER mentioned that a few other states have as little as
three years. He read down a list very quickly: 4, 4, 4, 3, 3, 3,
4, 5, 6, 6, 5, 4, 3, 7, and a couple of 10s. He did not see any
twelves. In 1986, Alaska passed a law to have a seven year statute
of repose. The court had difficulty with that for other reasons.
He felt eight years was reasonable, and objected to the amendment.
He explained the problem with having twelve years is that a
contractor would have to keep insurance long after he retired.
A roll call vote was taken. Representatives Finkelstein and Davis
voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter
voted no. The amendment failed on a vote of two to five.
Number 500
REPRESENTATIVE DAVIS moved her next amendment, Amendment 7. It
would delete all material on page 6, line 22, through page 7, line
16, (Section 6). This would completely eliminate the non-economic
damages section.
CHAIRMAN PORTER objected. He stated one of the goals is
predictability and reasonableness in damages. The $300,000 limit
is reasonable and obviously, predictable. There are states which
have caps lower than this.
REPRESENTATIVE FINKELSTEIN argued that non-economic damage awards
become very significant, for situations involving horrible
disfigurements, etc. It is loss of your life.
CHAIRMAN PORTER said the thing that is upsetting to him is that the
current attitude of so many people seems to be that money will make
up for someone's injury, and for them becoming a quadriplegic.
Once someone is a quadriplegic, there is no way to make him/her
whole. That is life.
REPRESENTATIVE DAVIS agreed they cannot be made whole, and money is
not everything, but money does help in situations when you do have
these kinds of injuries.
CHAIRMAN PORTER argued that a half a million dollars is a lot of
help.
REPRESENTATIVE VEZEY noted they seem to have lost sight of the fact
that no cap exists for economic damages. The jury can make the
person whole to the greatest extent that money can make an
individual whole.
REPRESENTATIVE DAVIS also felt the juries could decide on non-
economic damage awards without having the caps.
A roll call vote was taken. Representatives Finkelstein and Davis
voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter
voted no. Amendment 7 failed on a vote two to five.
Number 750
REPRESENTATIVE DAVIS moved Amendment 8. On page 8, line 19,
replace the word "shall" with "may." She felt the word "shall"
would place an extreme burden on the court system.
CHAIRMAN PORTER explained that the word "shall" would eliminate the
ability to protect against; if a court decided they wanted to, for
some reason; allowing periodic payments. In most cases, this has
been the history; plaintiffs want their money up front, rather than
in periodic payments, even though they would have received, in
their normal life, that much money up front. In those cases where
a court, for whatever reason they had elected not to do that; we
would run into the risk of having the loss of that money to the
defendant, over the period of time with which the payments would
have been spread. Consequently, if they were seriously injured,
they would be more susceptible to becoming wards of the state. For
that reason, he objected.
TAPE 95-22, SIDE B
Number 000
DANIELLA LOPER, Aide to Representative Porter, said that in states
that have periodic payments, some are discretionary and some are
mandatory.
Number 040
REPRESENTATIVE GREEN asked, under Section 10, where it says "paid
in a lump sum," is there any question that will be paid by the
defendant?
CHAIRMAN PORTER stated it is only the amount that exceeds $100,000.
The only portion that would be considered for periodic payments, is
the amount of an award over $100,000. So notwithstanding whatever
contingent fee arrangement the plaintiff had with his attorney, the
plaintiff would receive two thirds of $100,000 right up front, (if
the fee arrangement was 33 and 1/3 percent). The plaintiff would
receive 2/3 of $100,000. Then, the amount that is left to be
spread for periodic payments, would be reduced by the 1/3 (if that
were the contingent fee arrangement); and then spread over the
period of time, so that he would get the benefit of some money in
the first year, and $66,000, plus.
Number 125
REPRESENTATIVE GREEN said they should add the words "by the
defendant", so that in the future, it will be obvious from the
language that that is where the funds are coming from.
REPRESENTATIVE GREEN said the hypothetical situation that caused
him grief is the case where a fellow gets a judgement for 1/2 of a
million dollars, and he gets $100,000 a year, and the attorney is
going to get a third of that, at present worth value, that would be
otherwise due the attorney who was representing this person. It is
conceivable that over a five year period, present worth discount
would not be enough to discount that portion, so the guy ends up
owing money.
MR. LESSMEIER clarified that that would never happen under this
bill. The reason being because you do not structure the entire
$500,000 dollars. You would structure only the amount the person
is entitled to after they pay their attorney. If the attorney has
a contingency agreement of a third, the attorney would take that
one third right off of the $500,000 thousand.
CHAIRMAN PORTER asked Representative Green if he could think of
wording that would work for him, and he would ask Ms. Loper to work
with him on it.
REPRESENTATIVE GREEN agreed to do that.
Number 210
A roll call vote was taken. Representatives Finkelstein and Davis
voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter
voted no. The amendment failed on a vote of two to five.
Number 225
REPRESENTATIVE DAVIS moved Amendment 9, deleting all material on
page 8, lines 14 - 17, and inserting "Number (2), The amount of
federal and state income tax that would be paid on gross earnings
on the tax rate, in effect on the date of the injury or death may
be considered by the jury in awarding economic damages for loss of
past or future gross earnings."
CHAIRMAN PORTER objected.
REPRESENTATIVE DAVIS believed that the way the bill is written, it
would require a jury to make so many predictions in every case in
every year that future earnings are awarded; that the change could
result in a real injustice to the injured person. She believes her
language is better than what was there before.
CHAIRMAN PORTER reminded the committee that we did amend this to
hopefully provide that if the law changes, and the state taxes this
money, or the federal government decides to tax this money, this
deduction would not be made. It would cause the court to have to
make estimates, but that is outweighed by the reality that it is
inappropriate to pay somebody money that they did not have coming.
MR. LESSMEIER explained that for the jury to determine past wage
loss would be easy under this bill, because it says "they shall be
reduced by the amount of federal and state income taxes that would
be paid under tax rates, in effect, on the date of injury or
death."
REPRESENTATIVE FINKELSTEIN said if you fill out the tax forms for
the next few years, under the current tax laws, you will arrive at
a particular figure. Is it not going to require at least,
conceptually filling out the tax forms to see what bottom line they
would bring you, based on that person's current status, and
projecting it into the future?
MR. LESSMEIER said yes, he thought that was right.
REPRESENTATIVE FINKELSTEIN said we all know filling out taxes, even
for one year, is not easy and we are going to put this before the
jury?
MR. LESSMEIER said it really is no different than what is already
put before the jury in terms of past wage loss, and we do not go to
trial very often about a difference in figuring past wage loss.
When you apply, you have an application of an existing tax schedule
to estimate earnings. There is not going to be great room for
dispute about that. The United States Supreme Court, in a case
called Norfolk and Western Railroad Company, versus Leapoeld,
decided this was an appropriate thing to do back in 1980. If you
were to take out the language, "under tax rates in effect on the
date of this injury or death," then yes, you would inject the very
problem that you are concerned about. This bill was drafted to
avoid that.
REPRESENTATIVE FINKELSTEIN said the argument will be what the tax
laws of the state, at this time, are going to produce when
projected into the future. You may say it will not be much of an
issue, but from your determination, if the person is in the 28
percent category, and the bottom line of the other party, based on
their calculations, places them in the 15 percent category, that is
a big difference. That is hundreds of thousands of dollars. That
is an issue based on how you fill out your tax forms that a jury is
going to decide.
MR. LESSMEIER suggested that is a quantifiable thing, being far
easier for juries to determine with expert testimony, than things
like pain and suffering, loss of enjoyment of life, etc.
REPRESENTATIVE FINKELSTEIN said it may be, but it is a huge new
area that gets into all sorts of things, and it may be smaller than
some other determinations, but it is going to be a new big one.
MR. LESSMEIER said it is not really new, because what the
economists do right now is reduce these future economic damage
awards to present value. This is one more calculation they would
be required to do, but you would not see a great deal of debate
about it.
REPRESENTATIVE FINKELSTEIN said he is convinced Mr. Lessmeier was
wrong. Just the difference between 15 and 28 percent, which could
be the determination of whether they are going to get a deduction
for a particular piece of property they own, whether that piece of
property falls into the category of allowable deduction or not, and
whether that triggers them at 15 or 18, that alone would be enough.
Number 375
REPRESENTATIVE VEZEY said it does not take a rocket scientist to
determine what level of income is taxed at 15 percent, versus what
level of income is taxed at 28 percent. He said this, keeping in
mind that he is not capable of doing his own income taxes.
REPRESENTATIVE FINKELSTEIN said that was right, but there are all
these allowable deductions - every factor that goes into how you
treat your own taxes, and what goes into an audit, those are all
debatable issues before a jury. The IRS has a million things you
can treat differently. If taxes were simple, if we had a flat tax,
it would be different, but we do not. We have the most complicated
set of things that go into the calculation. His only point in all
this was to say that these items will now be before the jury. How
big of an issue they become, he did not know, but it is a whole new
area, and that is what worries him.
REPRESENTATIVE BUNDE said maybe he was not understanding something,
but say, a person is injured in a particular tax year. You go back
to their last time they filed taxes, and see what percent of taxes
they paid at that time.
REPRESENTATIVE FINKELSTEIN said conditions have changed now;
property that may have been the basis for their deduction, and
being able to itemize, may not be property that is in their
possession anymore. That may actually be involved in the dispute
in the first place, and you have burned up and they went with it.
These things just are not simple, and there is nothing in here that
says any automatic period. It is every kind of detail, like the
one you just raised, those are left to a jury to decide, and there
may be some simple way to do it, but this is not going to achieve
it. It is all going to be left up to a debate before a jury.
CHAIRMAN PORTER added, as is the merits of the entire case. After
no further discussion, a roll call vote was taken on Amendment 9.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 430
REPRESENTATIVE DAVIS moved Amendment 10:
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REPRESENTATIVE DAVIS said there is no reason to give half of the
punitive damages to the state. She felt it may even be
unconstitutional, but knew that Chairman Porter had mentioned that
it has been done in other states.
CHAIRMAN PORTER said the idea of giving it to the state, as opposed
to the defendant, is that after consideration of economic and non-
economic damages, the defendant has been made whole. The punitive
damage is a punishment to the defendant, whose actions cause a
hazard to everyone, as opposed to just the individual who was
harmed.
REPRESENTATIVE FINKELSTEIN said that though there is some
philosophical appeal to what he was saying, the problem is
practical in the system we have. We could pick a whole different
system to deal with these kinds of problems. We could make the
state or federal government be the great determining factor of what
is right and wrong, having this monstrous District Attorney's
Office going out and prosecuting everything that occurs. They
would go out and make the case, and every penny that came in from
a judgement would go to the state. He does not disagree with that
concept, necessarily, but we have this other system that gives
encouragement, through the system for people to pursue their own
claims at their own cost, to attempt to determine what is right or
wrong. The state only has to be involved at the level of providing
the court. So while it is an appealing concept, taking your
argument to the extreme, we would never have punitive damages if we
made them 100 percent.
After no further discussion, a roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 535
REPRESENTATIVE DAVIS made a motion to move Amendment 11:
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Page 17, lines 1 - 3:
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Page 17, line 7:
Delete: "sec. 21"
Insert: "sec. 20"
Page 17, line 9:
Delete: "sec. 26"
Insert: "sec. 25"
REPRESENTATIVE DAVIS said she wanted to delete the section that
says "prejudgment interest cannot be awarded for future economic or
non-economic or punitive damages." Current law does not allow for
prejudgment in punitive damages. There would be longer litigations
when there is no incentive for them to settle.
Number 550
CHAIRMAN PORTER felt there would be more litigation if someone
thought they were exposed to having to pay prejudgment interest on
future benefits. Prejudgment interest, almost by definition, is
interest on what you would do between the time the case was filed,
and the award. It seems illogical to pay prejudgment interest on
money that you were not entitled to in the first place, prior to
your being entitled to it. For that reason he objected to the
amendment.
REPRESENTATIVE FINKELSTEIN expressed he felt a bit at a
disadvantage, because every time he has a question, they call up a
representative of the insurance industry. He would like to ask
questions of someone on the other side. This is not really a fair
proceeding if there is only one industry that is represented. He
found Mr. Lessmeier's testimony to be very helpful, and he has
answered a number of his questions, but there is two sides to this
issue, and as we know, it is a very complicated thing. He could
not pretend to represent what actually goes on in the court room.
He has never even sat and watched one of these cases. How is he
possibly to know?
CHAIRMAN PORTER said his questions involve facts, not philosophy,
and if Jeff Feldman was sitting here, he would answer the question
the same way Mike Lessmeier would as to whether or not somebody
gets interest on money that is not paid when it is due. You get
it, but it is called post interest, it is not called prejudgment
interest.
REPRESENTATIVE FINKELSTEIN felt the fact that he cannot have Mr.
Feldman or someone else present to answer his questions is very
unfair. This is becoming a one sided forum, when the insurance
industry's views are the only thing left of the public. We had
plenty of public input covering a variety of things. Why should it
be summarized down to one industry's point of view?
CHAIRMAN PORTER stated to this point it has just been
Representative Finkelstein's point of view against his own. Mike
has not offered anything.
Number 650
REPRESENTATIVE FINKELSTEIN said the point of this is to replicate
what the earning power of that money was at the particular time the
court has determined that it is based on. It is a very complicated
subject. He still felt that if we were going to hear from
representatives on one side of this issue, we ought to be able to
hear from the other side. We have, over and over again, used, as
an expert, a person who represents a particular industry, and he
had never seen Representative Porter hold a hearing that way
before.
CHAIRMAN PORTER told Representative Finkelstein that if it his
impression that any information that Mr. Lessmeier has provided is
slanted, then we will not ask him any more questions. We will not
avail ourselves of an attorney who is here and might have a better
perspective on these questions than we do. That is fine, if that
is the way you want to do it. We will debate these sections
ourselves.
REPRESENTATIVE FINKELSTEIN wanted to note, for the record, how this
hearing was conducted.
CHAIRMAN PORTER said Representative Finkelstein has, and certainly
may, note his opinion. They have not asked anything other than
factual information, and that is what they have been getting.
REPRESENTATIVE FINKELSTEIN said he would be glad to review the
record with Chairman Porter, and he thought he could prove
otherwise.
After no further discussion, a roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
REPRESENTATIVE DAVIS made a motion to adopt Amendment 12:
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Insert: "sec. 25"
A roll call vote was taken. Representatives Finkelstein and Davis
voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter
voted no. The amendment failed on a vote of two to five.
TAPE 95-23, SIDE A
Number 000
REPRESENTATIVE FINKELSTEIN offered Amendment 13:
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Page 16, line 23:
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Insert: "sec. 16"
Page 17, line 1:
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Insert: "sec. 18"
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Insert: "sec. 20"
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Insert: "sec. 25"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 200
REPRESENTATIVE FINKELSTEIN offered Amendment 14:
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Delete: "personal injury, death, or"
Page 4, line 21:
Delete: "personal injury, death, or"
Page 4, line 24:
Delete: personal injury, death, or"
Page 4, line 27:
Delete: personal injury, death, or"
Page 5, lines 3 - 6:
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Page 14, line 16:
Delete: "personal injury, death, or"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 225
REPRESENTATIVE FINKELSTEIN offered Amendment 15:
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Insert: "sec. 13"
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Insert: "sec. 16"
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Insert: "sec. 18"
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Insert: "sec. 20"
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Insert: "sec. 20"
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Insert: "sec. 21"
CHAIRMAN PORTER objected.
Number 450
A roll call vote was taken. Representatives Finkelstein and Davis
voted yes. Representatives Bunde, Toohey, Vezey, Green and Porter
voted no. The amendment failed on a vote of two to five.
REPRESENTATIVE FINKELSTEIN offered Amendment 16.
Page 6, line 30:
Delete: "$300,000"
Insert: "$1,500,000"
Page 7, line 1:
Delete: "$500,000"
Insert: "$3,000,000"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote to two to five.
Number 530
REPRESENTATIVE FINKELSTEIN offered Amendment 17:
Page 7, lines 15 - 16:
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CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 575
REPRESENTATIVE FINKELSTEIN offered Amendment 18:
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Insert: "a new subsection"
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CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 715
REPRESENTATIVE FINKELSTEIN offered Amendment 19:
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Insert: "sec. 13"
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Insert: "sec. 18"
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Insert: "sec. 18"
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CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
REPRESENTATIVE FINKELSTEIN offered Amendment 20:
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Delete: "person [PARTY TO THE ACTION]
Insert: "party to the action"
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Delete: "(2) the percentage of the total fault [OF ALL
OF THE PARTIES TO EACH CLAIM] that is allocated to each
claimant, defendant, third-party defendant, [AND] person
who has been released from liability under AS 09.17.091,
or other person responsible for the damages to each
claimant regardless of whether the other person,
including an employer, is or could have been named as a
party to the action [AS 09.16.040]."
Insert: "(2) the percentage of the total fault of all of
the parties to each claim that is allocated to each
claimant, defendant, third-party defendant, and person
who has been released from liability under AS 09.178.091
[AS 09.16.040]."
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Delete: "as determined under (a) of this section, an
assessment of a percentage of fault against a person who
is not a party may only be used as a measure for
accurately determining the percentages of fault of a
named party. Assessment of a percentage of fault against
a person who is not a party does not subject that person
to civil liability in that action and may not be used as
evidence of civil liability in another action"
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CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, and Porter voted no. The amendment failed,
two to four.
Number 780
REPRESENTATIVE FINKELSTEIN offered Number 21:
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CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 830
REPRESENTATIVE FINKELSTEIN offered Amendment 22:
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TAPE 95-23, SIDE B
Number 000
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 085
REPRESENTATIVE FINKELSTEIN offered Amendment 23:
Page 13, line 19 through page 14, line 12:
Delete all material.
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Bunde, Toohey, Vezey, Green and Porter voted no. The amendment
failed on a vote of two to five.
Number 160
REPRESENTATIVE FINKELSTEIN offered Amendment 24:
Page 17, line 17:
Delete: "This Act takes effect July 1, 1995."
Insert: "This Act takes effect only if the Director of
the Division of Insurance certifies to the Lieutenant
Governor and the revisor of statutes that the liability
insurance rates filed with the Division of Insurance on
January 1, 1995, have been reduced by at least 10
percent. In this section, "liability insurance" means
insurance described under AS 21.12.070(a)(2). *Sec. 37.
If the condition described in sec. 36 of this Act is
fulfilled, this Act takes effect 30 days after the date
of the certification described in sec. 36 of this Act."
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Toohey, Vezey, Green and Porter voted no. The amendment failed,
two to four.
REPRESENTATIVE FINKELSTEIN offered Amendment 25:
Page 7, line 20 - 21 delete: "of malice or conscious acts
showing deliberate disregard of another person by the
person from whom punitive damages are sought."
Page 7, line 20 after "evidence of" insert: "outrageous
conduct, acts done with malice or bad motives, or
reckless indifference to the interests of another."
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Toohey, Vezey, Green and Porter voted no. The amendment failed on
a vote of two to five.
Number 410
CHAIRMAN PORTER offered Amendment 26:
Page 8, line 24:
Insert after "lump sum", "to the attorney by judgment
debtor"
Hearing no objection, the amendment was adopted.
CHAIRMAN PORTER offered Amendment 27:
Page 8, line 29:
Insert, after "state", or "self-insured municipality or
borough, "or"...
Hearing no objection, the amendment was adopted.
Number 525
REPRESENTATIVE FINKELSTEIN offered Amendment 28:
Page 6, lines 16 - 17:
Delete: "Notwithstanding the disability of minority
described under AS 09.10.140(a), a"
Insert: "A"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Toohey, Vezey, Green and Porter voted no. The amendment failed on
a vote of two to four.
REPRESENTATIVE FINKELSTEIN offered Amendment 29:
Page 3, line 31, through page 4, line 2:
Delete all material.
Page 11, line 19, through page 12, line 9:
Delete all material.
Page 16, lines 27 - 31:
Delete all material.
Page 17, line 1:
Delete: "sec. 19"
Insert: "sec. 18"
Page 17, line 4:
Delete: "sec. 21"
Insert: "sec. 20"
Page 17, line 7:
Delete: "sec. 21"
Insert: "sec. 20"
Page 17, line 9:
Delete: "sec. 26"
Insert: "sec. 25"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Toohey, Vezey, Green and Porter voted no. The amendment failed on
a vote of two to four.
Number 665
REPRESENTATIVE FINKELSTEIN offered Amendment 30:
Page 1, line 2:
Delete: "Rule of Evidence"
Insert: "Rules of Evidence 411 and"
Page 11, after line 18:
Insert a new bill section to read:
"* Sec. 17. AS 09.25 is amended by adding a new section
to read: Sec. 09.25.035. EVIDENCE OF LIABILITY
INSURANCE. A claimant in an action for personal injury
or death may introduce evidence that a person defending
a claim is insured by a policy of liability insurance.
In this section, "liability insurance" means a policy of
insurance described under AS 21.12.070(a)(2)."
Page 16, after line 26:
Insert a new bill section to read:
"*Sec. 30. AS 09.17.075, enacted in sec. 17 of this Act,
has the effect of amending Alaska Rule of Evidence 411 by
providing that evidence of liability insurance may be
introduced by a claimant in a civil action for personal
injury or death."
Page 16, line 27:
Delete: "sec. 17"
Insert: "sec. 18"
Page 17, line 1:
Delete: "sec. 19"
Insert: "sec. 20"
Page 17, line 4:
Delete: "sec. 21"
Insert: "sec. 22"
Page 17, line 7:
Delete: "sec. 21"
Insert: "sec. 22"
Page 17, line 9:
Delete: "sec. 26"
Insert: "sec. 27"
CHAIRMAN PORTER objected. A roll call vote was taken.
Representatives Finkelstein and Davis voted yes. Representatives
Toohey, Vezey, Green and Porter voted no. The amendment failed on
a vote of two to four.
Number 850
REPRESENTATIVE GREEN made a motion to move HB 158, as amended, out
of committee with individual recommendations and attached fiscal
notes.
REPRESENTATIVE FINKELSTEIN objected.
TAPE 95-24, SIDE A
Number 001
A roll call vote was taken. Representatives Finkelstein and Davis
voted no. Representatives Toohey, Vezey, Green and Porter voted
yes. CSHB 158(JUD) passed out of committee on a vote of four to
two.
ADJOURNMENT
The House Judiciary Committee adjourned at 6:10 p.m.
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