Legislature(1993 - 1994)

03/11/1994 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
               HOUSE JUDICIARY STANDING COMMITTEE                              
                         March 11, 1994                                        
                            1:15 p.m.                                          
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Rep. Brian Porter, Chairman                                                  
  Rep. Jeannette James, Vice-Chair                                             
  Rep. Pete Kott                                                               
  Rep. Joe Green                                                               
  Rep. Jim Nordlund                                                            
  Rep. Cliff Davidson (1:40 p.m.)                                              
  Rep. Gail Phillips (1:45 p.m.)                                               
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  HB 292:   "An Act relating to civil actions; amending Alaska                 
            Rules of Civil Procedure 49 and 68; and providing                  
            for an effective date."                                            
                                                                               
            HEARD AND HELD                                                     
                                                                               
  *HB 445:  "An Act relating to operating or driving a motor                   
            vehicle, commercial motor vehicle, aircraft, or                    
            watercraft."                                                       
                                                                               
            NOT HEARD                                                          
                                                                               
  *HB 460:  "An Act relating to bail after conviction for                      
            various felonies if the defendant has certain                      
            previous felony convictions."                                      
                                                                               
            NOT HEARD                                                          
                                                                               
  HB 376:   "An Act relating to services for and protection of                 
            vulnerable adults; and providing for an effective                  
            date."                                                             
                                                                               
            NOT HEARD                                                          
                                                                               
  (* First public hearing.)                                                    
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  DANIELLA LOPER, Committee Counsel                                            
  House Judicial Standing Committee                                            
  Alaska State Legislature                                                     
  Capitol Building, Room 118                                                   
  Juneau, AK  99811                                                            
  Phone:  465-6841                                                             
  POSITION STATEMENT:  Informational testimony regarding                       
                       HB 292                                                  
                                                                               
  MICHAEL FORD                                                                 
  Legislative Legal Counsel                                                    
  Legislative Affairs Agency                                                   
  Goldstein Building, Room 404                                                 
  130 Seward Street                                                            
  Juneau, AK  99801                                                            
  Phone:  465-2450                                                             
  POSITION STATEMENT:  Informational testimony regarding                       
                       HB 292                                                  
                                                                               
  PREVIOUS ACTION                                                              
                                                                               
  BILL:  HB 292                                                                
  SHORT TITLE: CIVIL LIABILITY                                                 
  SPONSOR(S): LABOR & COMMERCE                                                 
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  04/23/93      1459    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  04/23/93      1459    (H)   L&C, JUDICIARY, FINANCE                          
  09/10/93              (H)   L&C AT 09:00 AM CAPITOL 17                       
  11/22/93              (H)   MINUTE(L&C)                                      
  01/27/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  01/27/94              (H)   MINUTE(L&C)                                      
  02/01/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/01/94              (H)   MINUTE(L&C)                                      
  02/03/94              (H)   L&C AT 03:00 PM CAPITOL 17                       
  02/03/94              (H)   MINUTE(L&C)                                      
  02/07/94      2280    (H)   L&C RPT  CS(L&C) NEW TITLE 3DP                   
                              4NR                                              
  02/07/94      2280    (H)   DP:  HUDSON, MULDER, PORTER                      
  02/07/94      2280    (H)   NR:  GREEN, WILLIAMS, SITTON,                    
                              MACKIE                                           
  02/07/94      2280    (H)   LETTER OF INTENT WITH L&C                        
                              REPORT                                           
  02/07/94      2280    (H)   -ZERO FISCAL NOTE (LAW) 2/7/94                   
  02/16/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/18/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/18/94              (H)   MINUTE(JUD)                                      
  02/21/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
  02/21/94              (H)   MINUTE(JUD)                                      
  03/02/94              (H)   JUD AT 01:15 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 445                                                                
  SHORT TITLE: DWI LAWS                                                        
  SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                 
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  02/04/94      2261    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/04/94      2262    (H)   JUDICIARY, FINANCE                               
  02/04/94      2262    (H)   -3 ZERO FISCAL NOTES (2-ADM,                     
                              LAW) 2/4/94                                      
  02/04/94      2262    (H)   -FISCAL NOTE (DPS) 2/4/94                        
  02/04/94      2262    (H)   GOVERNOR'S TRANSMITTAL LETTER                    
  03/11/94              (H)   JUD AT 01:00 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 460                                                                
  SHORT TITLE: NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS                       
  SPONSOR(S): REPRESENTATIVE(S) NAVARRE                                        
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  02/11/94      2344    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  02/11/94      2345    (H)   JUDICIARY, FINANCE                               
  03/11/94              (H)   JUD AT 01:00 PM CAPITOL 120                      
                                                                               
                                                                               
  BILL:  HB 376                                                                
  SHORT TITLE: ASSIST & PROTECT VULNERABLE ADULTS                              
  SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                 
                                                                               
  JRN-DATE    JRN-PG                     ACTION                                
  01/14/94      2066    (H)   READ THE FIRST TIME/REFERRAL(S)                  
  01/14/94      2066    (H)   HES, JUDICIARY, FINANCE                          
  01/14/94      2067    (H)   -4 FNS (3-DHSS, ADM)  1/14/94                    
  01/14/94      2067    (H)   -ZERO FISCAL NOTE (ADM) 1/14/94                  
  01/14/94      2067    (H)   GOVERNOR'S TRANSMITTAL LETTER                    
  02/09/94              (H)   HES AT 03:00 PM CAPITOL 106                      
  02/09/94              (H)   MINUTE(HEB)                                      
  02/09/94              (H)   MINUTE(HES)                                      
  02/11/94      2341    (H)   HES RPT  4DP 3NR 1AM                             
  02/11/94      2341    (H)   DP:  BUNDE, TOOHEY, B.DAVIS,                     
                              NICHOLIA                                         
  02/11/94      2341    (H)   NR:  KOTT, G.DAVIS, OLBERG                       
  02/11/94      2341    (H)   AM:  VEZEY                                       
  02/11/94      2342    (H)   -ZERO FISCAL NOTE (DPS) 2/11/94                  
  02/11/94      2342    (H)   -4 PREVIOUS FNS (ADM, 3-DHSS)                    
                              1/14/94                                          
  02/11/94      2342    (H)   -PREVIOUS ZERO FISCAL NOTE                       
                              (ADM) 1/14/94                                    
  03/11/94              (H)   JUD AT 01:00 PM CAPITOL 120                      
                                                                               
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 94-37, SIDE A                                                           
  Number 000                                                                   
                                                                               
  The House Judiciary Standing Committee was called to order                   
  at 1:23 p.m. on March 11, 1994.  A quorum was present.                       
  Chairman Porter announced that the committee would take up                   
  HB 292.                                                                      
  HB 292 - CIVIL LIABILITY                                                     
                                                                               
  Number 028                                                                   
                                                                               
  CHAIRMAN PORTER:  "We are to take up the conclusion of HB
  292 and we will continue where we were with the amendments.                  
  We are on Amendment 12.  Let me add before we start that                     
  most of you have heard and in some cases read the 35 page                    
  treatise we got finally from the Department of Law.  I hope                  
  I would characterize it correctly as saying that they found                  
  no problems with 3/4 of the bill.  They found equivocal                      
  concerns with another 15 percent.  They spent a considerable                 
  amount of time and space on two items:  the statute of                       
  repose and the medical malpractice statute of limitations.                   
  Within those two areas, quite frankly, some of the things                    
  that they mention are interesting; some of them are bizarre.                 
  There will be, before the end of the meeting, for each                       
  member of the committee, that 35 page report and responses                   
  that we have already received from other points of view on                   
  their feelings on those two sections that they've                            
  challenged.  I think with a careful reading of those you can                 
  see that while there are no guarantees, ever, [indisc. -                     
  dealing with our Supreme Court?], the concerns expressed by                  
  the two members of the Department of Law who furnished us                    
  with their opinions, I think, have been countered.  So, with                 
  that said, let's move along to Amendment 12.  Daniella,                      
  would you tell us about that."                                               
                                                                               
  Number 081                                                                   
                                                                               
  DANIELLA LOPER, Committee Counsel, House Judiciary Standing                  
  Committee, recommenced her review of the amendments of HB
  292 with Amendment 12:                                                       
                                                                               
  "This section is talking about collateral benefits.  We                      
  believe and have been asked by the trial courts, that                        
  subsection (c) talks about the claimants' rights, the                        
  coverage [inaud. - exhaustion?] pleaded by the payment of a                  
  collateral benefit, and what they've paid out to get this                    
  collateral benefit.  We believe that it's very important                     
  that the fact-finder take this into consideration.  What we                  
  have done is to shorten up the section; we have removed it                   
  from subsection (c) and have placed it in subsection (b).                    
  So, after `benefits' on line 9, we are saying `Or the amount                 
  of value lost by payment' and simply saying that they'll                     
  take that into consideration."                                               
                                                                               
  REP. JAMES [?] moved the amendment.                                          
                                                                               
  Number 133                                                                   
                                                                               
  REP. GREEN:  "What I heard you say was that this small group                 
  of words in effect does (c).  Sounds good to me."                            
                                                                               
  MS. LOPER:  "Yes."                                                           
                                                                               
  Number 146                                                                   
                                                                               
  REP. NORDLUND:  "I'm not sure if I'm understanding this,                     
  but, does this amendment affect the use of collateral                        
  sources of evidence in relation to before or after a finding                 
  of fact?"                                                                    
                                                                               
  Number 165                                                                   
                                                                               
  MS. LOPER:  "Section (c) does not even deal with that.                       
  Section (c) talks about showing the fact-finder evidence on                  
  the claimant's monies that he or she has expended by getting                 
  this collateral benefit.  So, by putting it in (b), it's                     
  saying the same thing, because Section (b) is also talking                   
  about offering evidence to the fact-finder and showing them                  
  this.  So, it's kind of a balancing scale.  It's showing                     
  them the collateral benefit, but on the other hand, it's                     
  also showing what the plaintiff has expended to get this                     
  collateral benefit.  We believe that both of these issues                    
  should be taken into consideration."                                         
                                                                               
  REP. NORDLUND:  "What that explanation, I guess I don't have                 
  an objection."                                                               
                                                                               
  Number 185                                                                   
                                                                               
  There being no further discussion or objections, Amendment                   
  12 was adopted by the committee.                                             
                                                                               
  Number 192                                                                   
                                                                               
  MS. LOPER reviewed Amendment 13a and Amendment 13 (page 10,                  
  lines 24-25):                                                                
                                                                               
  "Sue Cox from the Department of Law felt that there was some                 
  ambiguity with the language on line 24, even though the                      
  phrase has been in the books for umpteen years, when it                      
  talks about that it `reduces the claim against the others to                 
  the extent of any amount stipulated by the release.'  This                   
  amendment involves a defendant who is offering a settlement;                 
  the plaintiff takes it; there are maybe two or three other                   
  defendants involved, and so what happens is that after the                   
  jury renders their award, the amount shall be decreased by                   
  the settlement that the plaintiff accepted from one of the                   
  defendants, and then the rest will be proportioned by the                    
  rest of the defendants at fault.                                             
                                                                               
  "And so, just simply to clarify the language, instead of                     
  saying `but it reduces the claim' she felt that that                         
  verbiage didn't really clarify what was going on, so in 13a                  
  we simplified it in saying `but it reduces the total amount                  
  awarded by the jury or court to the extent of any amount                     
  stipulated by the release or the covenant.'  Just, simply, a                 
  clarification."                                                              
                                                                               
  Number 247                                                                   
                                                                               
  REP. JAMES moved Amendment 13a.  There being no discussion                   
  or objections, Amendment 13A was adopted by the committee.                   
                                                                               
  Number 254                                                                   
                                                                               
  MS. LOPER:  "Amendment 14 deals with rate of interest.  On                   
  the books we have Alaska Statute 4.54.510.  In this                          
  particular section it talks about that there should be a                     
  10.5 percent interest on this judgment taken into                            
  consideration.  As you can see in the bill, we state that it                 
  is three percent above the 12th Federal Reserve District                     
  discount rates; sort of a floating discount rate.  It is not                 
  a fixed rate.  It is something that is going to be a                         
  variable, that can be looked at in the course of the year                    
  and in the future.  This is why we put [in] Amendment 14 to                  
  say `notwithstanding 4.54.510.'  On top of that, this entire                 
  section really relates to, and also includes prejudgment                     
  interest, not just interest on the judgment.  We wanted to                   
  clarify that as well.  It should read something like this:                   
  `Notwithstanding 4.54.510' - you know, the rate of interest                  
  on judgment including prejudgment interest and so forth."                    
                                                                               
  Number 285                                                                   
                                                                               
  REP. GREEN moved Amendment 14.                                               
                                                                               
  CHAIRMAN PORTER asked if there were any objections to the                    
  amendment.                                                                   
                                                                               
  Number 287                                                                   
                                                                               
  REP. KOTT:  "I'm not really wanting to object to movement of                 
  the amendment.  Let me just hold my comment until a little                   
  later."                                                                      
                                                                               
  Number 293                                                                   
                                                                               
  REP. NORDLUND requested clarification regarding the three                    
  percent above the federal reserve rate.  Was Ms. Loper                       
  saying that previously it did not apply to prejudgment                       
  interest and now it was being applied to prejudgment                         
  interest also?                                                               
                                                                               
  CHAIRMAN PORTER replied that it did previously apply to                      
  prejudgment interest, but this was being made clearer.                       
                                                                               
  Number 305                                                                   
                                                                               
  There being no further discussion or objection, Amendment 14                 
  was adopted by the committee.                                                
                                                                               
  Number 314                                                                   
                                                                               
  MS. LOPER:  "Amendment 15 is taking a look at page 12, line                  
  17.  This has to do with the wrongful death issues.  As it                   
  stands on the books today in current law, when there are                     
  nondependents that are seeking a claim on a wrongful death,                  
  they are limited to pecuniary, or economic, loss.  We are                    
  opening up the door to say that in wrongful death actions a                  
  nondependent plaintiff can sue for economic loss limited to                  
  $10,000 as well as noneconomic and punitive.  In order to do                 
  that we needed to delete that phrase `but shall be limited                   
  to economic loss' and we simply said, `when the decedent is                  
  survived by no spouse or children or other dependents the                    
  amount recovered shall be administered as other personal                     
  property of the decedent as provided in AS 9.55.580', which                  
  limits the economic loss to $10,000, but it doesn't limit or                 
  it does not prevent a plaintiff from pursuing noneconomic or                 
  punitive damages."                                                           
                                                                               
  Number 345                                                                   
                                                                               
  REP. JAMES:  "You're putting that back like it was before?"                  
                                                                               
  Number 357                                                                   
                                                                               
  MS. LOPER:  "No, actually, we are completely deleting `but                   
  shall be limited to economic loss' and we're simply saying,                  
  hey, refer to that statute that has a $10,000 cap on                         
  economic loss, but you're not going to be limited just to                    
  economic loss."                                                              
                                                                               
  REP. JAMES asked for confirmation that the amendment being                   
  discussed was the second, not the first Amendment 15, and                    
  Ms. Loper confirmed this.                                                    
                                                                               
  Number 357                                                                   
                                                                               
  REP. JAMES moved Amendment 15.                                               
                                                                               
  CHAIRMAN PORTER:  "Amendment 15 has moved, then.  For                        
  anybody looking at all this after the fact, Amendment 15,                    
  the one we're talking about, is the one that does not have a                 
  date and Michael Ford number on it; rather, it has nothing                   
  at the top right.  It merely has `Amendment 15'."                            
                                                                               
  There being no further discussion or objection, Amendment 15                 
  as described was adopted by the committee.                                   
                                                                               
  Number 370                                                                   
                                                                               
  MS. LOPER:  "In Amendment 16, on page 14, line 17, after                     
  `hospital' we are defining `independent contractor' since                    
  the whole section deals with it.  `Independent contractor'                   
  means a licensed health care provider, is a member of a                      
  hospital's medical staff, or has otherwise been granted                      
  specified privileges to render health care services directly                 
  or indirectly to patients at the hospital, but who is not an                 
  employee or actual agent of the hospital in condition with                   
  the rendition of the health care services.  That is the                      
  definition of an independent contractor."                                    
                                                                               
  Number 385                                                                   
                                                                               
  REP. JAMES moved Amendment 16 and Chairman Porter invited                    
  discussion.                                                                  
                                                                               
  Number 388                                                                   
                                                                               
  REP. NORDLUND:  "For the information of the committee, I am                  
  going to be offering an amendment that attempts to tighten                   
  this section down a little bit.  I see this as an attempt to                 
  tighten it down and define exactly who would be covered and                  
  wouldn't be."  He explained that his amendment would state                   
  which parties could contract with a hospital without the                     
  hospital being responsible for them.  This one moves down                    
  the road towards that definition.  I think the problem has                   
  been, as I understand it, primarily with physicians.  I                      
  don't think we want to have hospitals be relieved of the                     
  duty for not covering their nurses and any of the rest of                    
  their staff.  I would vote for this amendment because I                      
  think it's an improvement, but my amendment is more of an                    
  improvement beyond this."                                                    
                                                                               
  Number 407                                                                   
                                                                               
  There being no further discussion or objection, Amendment 16                 
  was adopted by the committee.                                                
                                                                               
  Number 411                                                                   
                                                                               
  MS. LOPER introduced discussion of Amendment 17 on page 15,                  
  line 5.  "In this particular section we are attempting to                    
  make a stab at trying to stop frivolous lawsuits by using                    
  Federal Court Rule 11.  Where it says `an initiative shall                   
  immediately set the matter for hearing', the trial courts                    
  suggested that we simply eliminate `shall' and place `may' -                 
  - `may immediately set the matter for hearing.'  That                        
  hearing is already established.  It's called a summary                       
  judgment hearing."                                                           
                                                                               
  Number 429                                                                   
                                                                               
  REP. GREEN:  "You said `may immediately.'  The way this is                   
  written, we would knock out both `shall' and `immediately'                   
  and just say `may', not `may immediately'?"                                  
                                                                               
  Number 449                                                                   
                                                                               
  MS. LOPER:  "Right.  Exactly.  That's what I meant."  After                  
  some inquiries from and discussion among committee members                   
  concerning numbering within the amendment, Ms. Loper said,                   
  "This whole entire section directly affects Rule 11 and Rule                 
  95.  So when we put a special order to hold an immediate                     
  hearing, that went against that Court Rule 11 and 95 the way                 
  it's been set up for years.  We thought about it and said,                   
  no, let's just go on with 11 and 95, and that's why you see                  
  the deletion of just those two numbers."                                     
                                                                               
  Number 458                                                                   
                                                                               
  REP. GREEN:  "By going to `may', which would then imply that                 
  the court may not, what affect would that have on this                       
  section?"                                                                    
                                                                               
  Number 460                                                                   
                                                                               
  MS. LOPER:  "By eliminating `shall immediately' we are going                 
  back to what is happening today, and what has been occurring                 
  today.  That particular hearing is called a summary                          
  judgment.  The judge will take into consideration the motion                 
  for summary judgment on [what might be] a frivolous lawsuit,                 
  and he or she will review the facts or the claims that each                  
  party is making.  And then if there is some kind of                          
  foundation to the claim, then, they may hold, based on what                  
  they see, a summary judgment hearing."                                       
                                                                               
  CHAIRMAN PORTER remarked that this was a response to                         
  concerns about possibly improper litigating scenarios.                       
                                                                               
  Number 481                                                                   
                                                                               
  There being no further discussions or objection, Amendment                   
  17 was adopted by the committee.                                             
                                                                               
  Number 486                                                                   
                                                                               
  MS. LOPER addressed Amendment 18 on page 16, line 6.  "This                  
  section is asking the Division of Insurance to come up with                  
  and compile information on exactly how the bill has affected                 
  insurance rates.  The date that is in the bill at this time                  
  said that the information must be compiled by June 1, 1995.                  
  The intent behind the amendment is this:  first of all, you                  
  have within two years an accrual to discover that there is                   
  an injury.  So that's two years.  Then finally, to file the                  
  suit, could be a matter of another year or two years, maybe                  
  three.  That's if the case isn't appealed.  That is the only                 
  way that we are really going to find that time period, to                    
  find really if there has been any effect.  So, June 1, 1995,                 
  does not give enough time in order to have the whole process                 
  be taken into consideration.  So we have changed the date to                 
  1998."                                                                       
                                                                               
  Number 509                                                                   
                                                                               
  REP. DAVIDSON:  "What was the last so-called tort reform                     
  bill we did?  How long ago was that?  Three, four years ago,                 
  right?  So, what kind of data do we have on how the rates                    
  were affected from that legislation?  It's been four years                   
  now, which is what you're asking for here.  Do we know?  Do                  
  we have that information?"                                                   
                                                                               
  Number 516                                                                   
                                                                               
  CHAIRMAN PORTER:  "No, and the main reason that we don't is                  
  another reason why we may get something relevant and may not                 
  from this date.  I could argue logically that we should have                 
  this report ten years out, because it takes that long before                 
  the challenges that will automatically accrue with this                      
  legislation if it passes are going to be ultimately settled.                 
  We passed, by initiative, doing away with joint and several                  
  liability; a loophole was found in the wording of the                        
  initiative, and now some folks think we have joint and                       
  several liability, and some folks think we don't.                            
  Consequently, tracking what effect that initiative has is                    
  difficult if not impossible because we don't have it yet."                   
                                                                               
  Number 531                                                                   
                                                                               
  REP. DAVIDSON challenged the paucity of data, asking, "Is it                 
  not true not all of these things are always appealed?                        
  Right?  You're going to have a database that..."                             
                                                                               
  CHAIRMAN PORTER stressed four years as an optimal period of                  
  time.  Referring back to Ms. Loper's comments, he reminded                   
  committee members, "Nothing that is in the pipeline right                    
  now will be affected by this law, that's ex post facto....                   
  Civil cases in the norm take three years to get resolved                     
  unless they are settled out of court.... Insurance companies                 
  have to wait and see what happens."  Chairman Porter noted                   
  that after the three years there might yet be an appeal, but                 
  in any case it would be a year beyond that period before                     
  statistics could be assembled.   He concluded, "That's four                  
  years, that's 1998."                                                         
                                                                               
  REP. DAVIDSON expressed willingness to accept 1997 as an                     
  initial point for compilation and analysis of data, but                      
  urged against delaying such review until 1988, asking, "Who                  
  knows what we're going to be stuck with as a result of                       
  another effort at tort reform as far as insurance rates are                  
  concerned?"                                                                  
                                                                               
  REP. PORTER asked if there was further discussion or any                     
  objections on Amendment 18.  There being objection, a roll                   
  call vote was taken.  Rep. Davidson voted "No" and Reps.                     
  Nordlund, Green, Phillips, Kott, James and Porter voted                      
  "Yeah".  Amendment 18 was therefore adopted by the                           
  committee.                                                                   
                                                                               
  Number 570                                                                   
                                                                               
  MS. LOPER began discussion of Amendment 19a, saying, "We                     
  wanted to tighten up this section."  She referred the                        
  committee to page 14, lines 14-15.  "You see where it says                   
  health care provider.  Health care provider as defined in                    
  this bill includes almost everyone.  We wanted to make sure                  
  that we hit the particular areas that are at issue."  Ms.                    
  Loper noted that providers included doctors of medicine,                     
  surgeons, psychologists, osteopaths, dentists, optometrists                  
  and registered nurses of anesthesiology.  Regarding the                      
  latter she explained, "In many rural communities, it is a                    
  registered nurse who is the anesthesiologist, who works with                 
  the doctor on the operating table."                                          
                                                                               
  Number 599                                                                   
                                                                               
  REP. PHILLIPS:  "Wouldn't the definition of health care                      
  provider include nurses, general nurses?"                                    
                                                                               
  Number 604                                                                   
                                                                               
  MS. LOPER:  "That is correct.  We do not want to use the                     
  word `physician' as you can see on the amendment.  We want                   
  to cross that out and put `health care provider.'  We want                   
  to delete `physician,' we want to insert `Health care                        
  provider includes,' and therefore, a nurse would be."                        
                                                                               
  Number 608                                                                   
                                                                               
  REP. PHILLIPS:  "At that point, then, it should be `health                   
  care providers includes but is not limited to' because you                   
  don't have nurses, regular nurses?"                                          
                                                                               
  Number 610                                                                   
                                                                               
  CHAIRMAN PORTER:  "No.  That is correct.  We don't want                      
  regular nurses.  The idea of this division is that we don't                  
  think that the hospital should be required to be responsible                 
  for people that they don't supervise.  Basically, that's                     
  physicians, unless the physician is a contract person with                   
  them.  The definition of `health care provider' includes                     
  everybody down to the -- you know... what the industry wants                 
  is not what everybody that criticizes this section feels,                    
  that eventually they are going to make independent                           
  contractors out of nurses and janitors and be responsible                    
  for nobody.  What we're saying is, `No, that isn't what                      
  we're after.  We're after just these guys.'"                                 
                                                                               
  Number 624                                                                   
                                                                               
  REP. DAVIDSON:  "So, what is the responsibility of the                       
  hospital?  Because these people are going to be independent                  
  contractors, and I guess I'm having trouble understanding                    
  why all these different specialists are each going to have                   
  to have their own insurance policy -- because they're not                    
  going to be accredited to practice in a hospital without                     
  some kind of insurance, right?  My question is, why is it                    
  that all of these different policies will be less expensive                  
  than one large policy that the hospital will cover?  How                     
  does this affect the billing for the patient?  Are we                        
  thinking of the patient at all?"                                             
                                                                               
  Number 638                                                                   
                                                                               
  CHAIRMAN PORTER:  "That is precisely one of the recognized                   
  criteria for separating an independent contractor from the                   
  hospital people.  The hospital doesn't bill for the doctor's                 
  fees even though the surgery was performed in the hospital.                  
  That's something traditionally that the doctor bills for.                    
  The hospital will bill for the medicines and the support                     
  staff and all that... but the doctor's fee is a separate                     
  bill.  That is the kind of separation that you look for when                 
  you're trying to determine who is really an independent                      
  contractor, and who isn't.  The other main differentiation                   
  is that the facility doesn't supervise, instruct, control                    
  this person's activities.  The profession of medicine does,                  
  so to speak, with the certification of the state.  So, what                  
  we're trying to say is that they shouldn't be responsible                    
  for things that they don't control.  They do control their                   
  own employees and they ought to be responsible for them --                   
  the nurses, and everybody else."                                             
                                                                               
  Number 658                                                                   
                                                                               
  REP. DAVIDSON:  "I don't know exactly how it works, but it                   
  seems that the hospital has a certain responsibility as to                   
  who they allow to practice in their hospital."                               
                                                                               
  CHAIRMAN PORTER:  "Yes.  And that's covered also.  The                       
  hospital is responsible for exercising reasonable care in                    
  granting staff privileges to practice in the hospital, for                   
  reviewing those privileges on a regular basis, for taking                    
  appropriate steps to revoke or restrict privileges in                        
  appropriate circumstances.  The hospital is not otherwise                    
  liable for [indisc.]."                                                       
                                                                               
  REP. DAVIDSON:  "What kind of standard is reasonable care,                   
  Mr. Chairman?"                                                               
                                                                               
  Number 666                                                                   
                                                                               
  MS. LOPER:  "Reasonable care is just a standard used in law,                 
  just a general standard."                                                    
                                                                               
  MR. DAVIDSON:  "Is there a lesser standard, or a greater                     
  standard?  What would be the next greater standard?"                         
                                                                               
  MS. LOPER:  "You can put anything down, if you want, to make                 
  it a higher standard or lesser standard, but this is the                     
  standard that you use, and that's pretty strict in itself."                  
                                                                               
  Number 675                                                                   
                                                                               
  REP. JAMES:  "I have a question, not necessarily on that                     
  point, if Rep. Davidson has not finished with that question,                 
  but I do have a question regarding this amendment.  Are you                  
  finished?"                                                                   
                                                                               
  REP. DAVIDSON did have further inquiries on the points he                    
  raised.  He said, "There really then does not exist a higher                 
  standard here, as regards a situation like this in granting                  
  staff privileges as far as the law is concerned?"                            
                                                                               
  Number 683                                                                   
                                                                               
  MS. LOPER:  "This is the way it is written.  I mean, this is                 
  the way it's been, it's just the way it's done.  Any time                    
  that a hospital reviews their doctors -- I mean, they have                   
  to, I imagine, check out their license to make sure that                     
  nothing, that the doctor is not in violation of any of this,                 
  and they would use and exercise a reasonable care."                          
                                                                               
  Number 692                                                                   
                                                                               
  REP. GREEN:  "Wouldn't this be somewhat akin then to, say, a                 
  torts liability case where somebody was under a duty for                     
  negligence to exercise the degree that the average                           
  reasonable person would exercise under the same or similar                   
  circumstances; that kind of thing?"                                          
                                                                               
  MS. LOPER:  "Exactly."                                                       
                                                                               
  REP. GREEN:  "And that's, I know, been in the law for years                  
  and years."                                                                  
                                                                               
  Number 697                                                                   
                                                                               
  REP. JAMES:  "On the question that Rep. Davidson had about                   
  the insurance, about why would we be paying all this                         
  insurance?  I might point out that I believe that all of                     
  these people would already have insurance because they don't                 
  only operate at the hospital, and so this gives it so that                   
  the hospital isn't also covered."                                            
                                                                               
  Number 706                                                                   
                                                                               
  REP. NORDLUND stated a correction to Rep. James' assertion                   
  concerning physicians' insurance, saying, "Twenty-five                       
  percent of the physicians in this state do not have any                      
  insurance.  That's a fact."  He noted he had an amendment                    
  concerning these insurance issues that he would subsequently                 
  be offering.  Rep. Nordlund cautioned, "Since we are letting                 
  the hospitals out of the responsibility of providing                         
  coverage for these people, I think we have to make                           
  absolutely sure that the doctors themselves have insurance."                 
                                                                               
  REP. PORTER:  "We'll debate that one when we get to it.                      
  Rep. Green?"                                                                 
                                                                               
  Number 711                                                                   
                                                                               
  REP. GREEN:  "Not on that issue, back on this amendment.                     
  Does AS 18.23.070, [indisc.], in the statute, does it                        
  tabulate the persons..."                                                     
                                                                               
  CHAIRMAN PORTER:  "We've taken that out..."                                  
                                                                               
  REP. GREEN:  "No, that question hasn't anything to do with                   
  what this amendment..."                                                      
                                                                               
  MS. LOPER:  "Are you simply asking what is included in                       
  18.23.070?"                                                                  
                                                                               
  REP. GREEN:  "Yes, we're requesting now to drop that                         
  language out...?"                                                            
                                                                               
  MS. LOPER:  "It is because there is just a huge list, almost                 
  to the janitor of the hospital, literally, that this is what                 
  it includes.  The intent behind this amendment is to say,                    
  `No, we don't want the janitor of the hospital to be                         
  included.  These particular professions should only be                       
  included.' So it limits what 18.23.070 is a list of."                        
                                                                               
  Number 726                                                                   
                                                                               
  REP. GREEN:  "The reason I am asking is that we now have an                  
  abbreviated list, but in other areas where lists have been                   
  included, we always get heartburn, because when you start a                  
  list, then, have you excluded, or have you included, does                    
  that modify, does that change?  It's because of the long                     
  list that you're trying to avoid, is why you're listing a                    
  short list."                                                                 
                                                                               
  Number 732                                                                   
                                                                               
  CHAIRMAN PORTER:  "No, we're trying to make sure that what                   
  we mean is what we say.  What we mean is, that we just want                  
  doctors, who are not otherwise supervised by the hospital                    
  and employed by the hospital, to fall into this category."                   
                                                                               
  Number 735                                                                   
                                                                               
  REP. GREEN:  "That's kind of what I thought.  It seems to me                 
  that the wording that you've got does that, does not include                 
  a hospital employee, or the hospital.  But now you've got                    
  these people -- I'm wondering, for example, in some                          
  hospitals, if a physical therapist might be an independent                   
  contractor..."                                                               
                                                                               
  CHAIRMAN PORTER:  [Indisc.]                                                  
                                                                               
  REP. GREEN:  "Okay, but that's not listed."                                  
                                                                               
  CHAIRMAN PORTER:  "That's right, and we don't want to list                   
  it, because we want them to be..."                                           
                                                                               
  REP. GREEN:  "They're not in the hospital..."                                
                                                                               
  CHAIRMAN PORTER:  "Oh, I see what you're saying.  I see what                 
  you're saying."                                                              
                                                                               
  REP. GREEN:  "They're not on this list.  And I'm just                        
  pointing that out as one, and there may be others."                          
                                                                               
  Number 770                                                                   
                                                                               
  REP. JAMES:  "That's why it said `including but not limited                  
  to'."                                                                        
                                                                               
  CHAIRMAN PORTER:  "The only thing I can say is that this was                 
  reviewed by the medical facility representatives who didn't                  
  have a problem with it.  Maybe physical therapists are..."                   
                                                                               
  REP. GREEN:  "Maybe not in this state..."                                    
                                                                               
  Number 752                                                                   
                                                                               
  REP. JAMES:  "A couple of things, and on that point, I would                 
  suspect that the reason that you have this list is because                   
  this is a list, and even though Rep. Nordlund says that 25%                  
  of the doctors don't have malpractice insurance, that this                   
  is a list of those people that you would expect to have                      
  malpractice insurance, and not be a double insurance.                        
  However, I think that if the hospital stops covering these,                  
  one of the hospital's options is to not let anyone practice                  
  in their hospital unless they have it.  And that's pretty                    
  effective.  In any event, and the fact is they would do                      
  that, if their insurance wasn't covering them, I believe                     
  that they would.  But the other point is, on line 5, where                   
  it says `the following health care providers are independent                 
  contractors and are not employees of the hospital, see                       
  specific health care providers,' is that a reference down to                 
  this issue that we're putting in here?  Or is that list                      
  supposed to be in that area?"                                                
                                                                               
  Number 768                                                                   
                                                                               
  CHAIRMAN PORTER:  "Line 9, `The hospital is [not?] otherwise                 
  liable for the acts or omissions of the health care provider                 
  who is an independent contractor."                                           
                                                                               
  REP. JAMES:  "Up at the top..."                                              
                                                                               
  REP. GREEN:  "In the parenthetical portion -- is that                        
  complete that way?  Is there some list to go...?"                            
                                                                               
  REP. JAMES:  "This is a form, [indisc.], and then they have                  
  to have those lists...  okay, I'm sorry, I misunderstood                     
  that."                                                                       
                                                                               
  Number 773                                                                   
                                                                               
  MS. LOPER:  "Mr. Chairman, and Rep. Green, just to follow up                 
  on your question.  You're asking the question on [an]                        
  independent contractor and [the] making [of] a list.  There                  
  are a lot of janitorial services that are independent                        
  contractors with hospitals.  So, if we simply just stated                    
  18.23.070, that could include them as well.  There are many,                 
  many, many professions that use the hospitals as independent                 
  contractors besides physicians, and so that is why there is                  
  a list.  It is not an example list, that is why it is `not                   
  limited to but also including,' that is why we have used                     
  this list in particular, to really hone in on the                            
  professions that deal with the patients."                                    
                                                                               
  Number 784                                                                   
                                                                               
  CHAIRMAN PORTER:  "I'm guessing that there is some                           
  supervisory relationship between a physician and a physical                  
  therapist, and if that physical therapist has been ordered                   
  by one of these independent contractor doctors, then that                    
  might fall under that category.  The doctor might be                         
  responsible for him or her.  As I say, this is the wording                   
  that -- we asked them to give us wording that depicted what                  
  it was that we understood them to mean when they wanted this                 
  exclusion, and that was just the doctors that [we're?] not                   
  responsible for... and that's what we're trying to say."                     
                                                                               
  Number 794                                                                   
                                                                               
  REP. NORDLUND commented, "The more practitioners we add to                   
  the list, the less protection to the public we're affording                  
  here.  Not that it might be doubled, but I think that we                     
  want to try and limit it.  On Rep. James' comment -- That is                 
  a good point about hospitals requiring their doctors to have                 
  insurance.  Fairbanks Memorial, as you probably know, has                    
  gone through that battle and is now requiring that.                          
  However, Alaska Regional and Providence do not require their                 
  doctors to have insurance.  That's where the public is left                  
  exposed.                                                                     
                                                                               
  "I have a question.  We just adopted the independent                         
  contractor definition and now we're adopting a definition                    
  for health care provider.  I don't see that they necessarily                 
  conflict, but it is somewhat confusing why we need two                       
  separate definitions.  One says, `the independent contractor                 
  is a member of a hospital's medical staff.'  What is,                        
  exactly, the medical staff?  Are they the nurses?  Or just                   
  the doctors?  Or?  I don't know what, exactly, the medical                   
  staff is."                                                                   
                                                                               
  CHAIRMAN PORTER:  "Staff physicians."                                        
                                                                               
  REP. NORDLUND:  "Medical staff is not nurses?"                               
                                                                               
  CHAIRMAN PORTER:  "No, those are employees."                                 
                                                                               
  REP. NORDLUND:  "We're defining what are and what aren't                     
  employees.  We're using a term to define a term.  I don't                    
  know what `medical staff' means.  Mike Ford is here, maybe                   
  he could help us through some of this stuff, too, since he                   
  wrote them up."                                                              
                                                                               
  MS. LOPER agreed that Mr. Ford might be able to assist the                   
  committee in clarifying these definitions.                                   
                                                                               
  Number 821                                                                   
                                                                               
  MICHAEL FORD introduced himself as an attorney with Legal                    
  Services.  "I can't tell you what `medical staff' is limited                 
  to.  There is no definition of it.  I think the common                       
  meaning of the term is someone who is employed by the                        
  hospital in the practice of medicine."                                       
                                                                               
  Number 828                                                                   
                                                                               
  REP. DAVIDSON:  "It could be a nurse."                                       
                                                                               
  MR. FORD:  "It could be a nurse.  Right."                                    
                                                                               
  Number 831                                                                   
                                                                               
  CHAIRMAN PORTER:  "Is there anyone here who is associated                    
  with the Hospital Association in the audience?"  There was                   
  no response from the audience to this question.  "Well, what                 
  is the inconsistency that we're trying to fix?"                              
                                                                               
  Number 832                                                                   
                                                                               
  REP. NORDLUND:  "Originally we talked about health care                      
  providers as being independent contractors.  Then we went on                 
  to define what an `independent contractor' was.  Now we're                   
  also defining what `health care provider' is, and I think                    
  there's an inconsistency there.  [Words muffled by other                     
  voices and shuffling of papers.]  I don't mean to impede                     
  what you're trying to do here, I just think that you can                     
  rework this and come up with a definition that's                             
  consistent."                                                                 
                                                                               
  REP. JAMES [?]:  "No, there is no connection between                         
  `independent contractor' and `health care provider.'  They                   
  are two different [inaud.]."                                                 
                                                                               
  CHAIRMAN PORTER and committee members reviewed their bill                    
  texts to research the question of possible inconsistencies                   
  between the terms `health care provider' and `independent                    
  contractor.'                                                                 
                                                                               
  REP. JAMES [?]:  "I think we do have an inconsistency."                      
  [Further skimming of texts and exchanges thereon; largely                    
  inaudIBLE.]                                                                  
                                                                               
  REP. NORDLUND:  "It may not be inconsistent, but I think it                  
  is at least confusing." [Concurring voice audible, identity                  
  not clear.]  Rep. Nordlund pondered and analyzed potentially                 
  confusing situations.                                                        
                                                                               
  Number 868                                                                   
                                                                               
  MR. FORD:  "I don't think it's inconsistent, but I think                     
  it's circular.  That's the odd thing about it.  If you say,                  
  you're a health care provider who is an independent                          
  contractor when this happens, but you're defining both                       
  `health care provider' and `independent contractor'                          
  intertwined with each other, I'm not sure that you achieve                   
  anything.  But I don't think it's inconsistent.  It's simply                 
  circular."                                                                   
                                                                               
  CHAIRMAN PORTER:  "It's circuitous."                                         
                                                                               
  MR. FORD:  "They blend into each other.  An `independent                     
  contractor' is a `health care provider' who is an                            
  `independent contractor' to get the benefit of the section."                 
                                                                               
  Number 873                                                                   
                                                                               
  REP. JAMES:  "These specific names of workers that we have                   
  in this line will be the list of specific health care                        
  providers that will be on the form where people will see                     
  it."                                                                         
                                                                               
  CHAIRMAN PORTER:  "If the hospital so elects, yes.  This                     
  doesn't require hospitals not to hire [inaud.]."                             
                                                                               
  REP. JAMES:  "It just allows them to [inaud.]."                              
                                                                               
  Number 879                                                                   
                                                                               
  CHAIRMAN PORTER:  "Yes.  It does what it is that we want,                    
  so..."                                                                       
                                                                               
  Number 880                                                                   
                                                                               
  REP. JAMES:  "I'll move Amendment 19."                                       
                                                                               
  CHAIRMAN PORTER:  "Is there further discussion of number 19                  
  as amended?"                                                                 
                                                                               
  Number 882                                                                   
                                                                               
  REP. PHILLIPS:  "Getting back to Rep. Green's comment on the                 
  physical therapist.  What do we do about them?"                              
                                                                               
  CHAIRMAN PORTER:  "I think that they would be employees                      
  under that circumstance.  Certainly physical therapists can                  
  be employed by a hospital, a clinic, or whatever.  If a                      
  physical therapist is working independently, I would guess                   
  they would have to be under the supervision of a doctor, and                 
  I..."                                                                        
                                                                               
  TAPE 94-37, SIDE B                                                           
  Number 000                                                                   
                                                                               
  REP. DAVIDSON:  "There are other specialists, too, involved.                 
  I remember I went to the hospital once about a pulmonary                     
  problem.  I was under the supervision of a doctor but there                  
  was another specialist who worked with me."  This                            
  specialist, a pulmonary specialist, was not a physician.                     
  Rep. Davidson explored the issue of how one might define the                 
  insurance position of such a supervised nonphysician,                        
  querying, "If you say that that type of person is under the                  
  supervision of that doctor, does that mean that that                         
  doctor's insurance policy hangs in the balance because of                    
  the way that person [functions] under that doctor's                          
  supervision?  And, if not, why not?  And if so, then that                    
  makes that person's irresponsible acts come under the                        
  hospital's insurance policy, is that correct?"                               
                                                                               
  Number 040                                                                   
                                                                               
  CHAIRMAN PORTER:  "If I interpret this correctly, the only                   
  category of person that we're saying can be an independent                   
  contractor, for the purposes of not falling under the                        
  responsibility of the hospital, are these physicians that                    
  we've named as independent contractors, and these nurse                      
  anesthesiologists."                                                          
                                                                               
  Number 047                                                                   
                                                                               
  MR. FORD:  "That's not exactly true.  There are other                        
  classes of independent contractors who would not be liable                   
  because they are independent contractors.  The hospital                      
  would not be liable.  I don't think we've changed that law                   
  at all.  What we've really done is set up a class of people                  
  who are independent contractors who would not otherwise be                   
  independent contractors under the case that the Supreme                      
  Court decided that we're attempting to reverse, I believe.                   
  So, what we're actually doing is changing law for certain                    
  classes of health care providers -- those people are going                   
  to be independent contractors under the provisions of this                   
  section.  But there may be other people, such as your                        
  physical therapist, who are independent contractors, under                   
  the review of the court now.  Those are not affected by                      
  this.  They'll still be independent contractors."                            
                                                                               
  Number 070                                                                   
                                                                               
  CHAIRMAN PORTER:  "Further discussion?"                                      
                                                                               
  Number 073                                                                   
                                                                               
  REP. DAVIDSON:  "So the intent here is to save the hospital                  
  money, right?  We're trying to save some costs for the                       
  hospital by ensuring that these people that we've listed, by                 
  their acts, do not jeopardize the hospital's insurance?  Is                  
  that correct?"                                                               
                                                                               
  Number 091                                                                   
                                                                               
  CHAIRMAN PORTER:  "Thereby saving the patient money, yes."                   
                                                                               
  REP. DAVIDSON:  "`Thereby' -- does that mean, then, that we                  
  would expect to see a drop in hospital rates, then?  And if                  
  not, why not?"                                                               
                                                                               
  CHAIRMAN PORTER:  "That's the thing that we wanted to give                   
  enough time to be able to assess.  That is one of the                        
  ingredients of this, yes."                                                   
                                                                               
  REP. DAVIDSON, assessing the putative fiscal benefits of the                 
  legislation, noted it did not contain price controls.                        
  "...[If] in fact the numbers come out and the price                          
  continues to rise, that's too bad, right?  There's nothing                   
  that says we've got to have that price control."                             
                                                                               
  Number 102                                                                   
                                                                               
  CHAIRMAN PORTER:  "No, that's true, and the reason that we                   
  can't bring something like that right on there is just for                   
  the reason that I explained why we would have been ill-                      
  advised to have done it in 1987 when we passed the                           
  initiative.  Because look what's happened to it.  We're                      
  trying.  There's no guarantees, but we try.  Further                         
  discussion of number 19?"                                                    
                                                                               
  Number 116                                                                   
                                                                               
  REP. JAMES:  "I feel, and I have no other way of doing it,                   
  and I think this is perfectly fine and it will work that                     
  way, but `independent contractor' and `health care provider'                 
  are two terms that can really reach out and take care of                     
  lots of things.  It's difficult to find them in here                         
  specifically.  I suspect that when it relates to an                          
  independent contractor, should there be some reference to                    
  this list?  Or is it fine just to have it in the section?  I                 
  think it's sufficient."   However, Rep. James continued, "If                 
  they only read part of the section they are going to be                      
  totally misled, is the point, and I don't know whether -- I                  
  don't know how many times `independent contractor' is in                     
  here, I don't know how many times `health care provider' is                  
  in here."                                                                    
                                                                               
  CHAIRMAN PORTER:  "This is only for this section, that we're                 
  referring to."                                                               
                                                                               
  REP. JAMES:  "I know, but I don't know how many times it                     
  says `independent contractors' or it says `health care                       
  providers.'  Is having a description like this, is that                      
  going to be sufficient to get the point across?"                             
                                                                               
  Number 145                                                                   
                                                                               
  MS. LOPER:  "Since this section is particularly just                         
  focusing on the civil liability of hospitals for                             
  nonemployees, that's why the list is there -- because it                     
  directly affects the hospital and nonemployees."                             
                                                                               
  Number 153                                                                   
                                                                               
  CHAIRMAN PORTER:  "In these three definitions `hospital'                     
  also would be following one right after the other."                          
                                                                               
  Number 155                                                                   
                                                                               
  REP. JAMES:  "This is a pretty blank sentence.  It says,                     
  `The hospital is not otherwise liable for the acts or                        
  omissions of the health care provider who is an independent                  
  contractor.'  Without the definition of a specific list of                   
  health care providers, or a specific list of those who meet                  
  the criteria of an independent contractor, that sentence                     
  could be misleading.  I'm just wondering if it should say                    
  something like `omissions of certain health care providers                   
  who may be an independent contractor' or something..."  Rep.                 
  James expressed some ambivalence concerning the language of                  
  the amendment, saying she felt that while she had no more                    
  suggestions or changes and was convinced that the language                   
  was OK, "I just feel a little uncomfortable with it."                        
                                                                               
  Number 174                                                                   
                                                                               
  CHAIRMAN PORTER:  "I understand what you're saying.  I just                  
  think that this is a statute, and it's very rare that a                      
  patient, if you will, is going to be reading these statutes.                 
  They're going to be read by people who in the main are                       
  familiar with interpreting statutes.  Whenever they reach a                  
  term that they are not familiar with, or they see has a                      
  pivotal bearing on the thing, they look for a definition                     
  section and this thing follows probably on the same page."                   
                                                                               
  REP. JAMES:  "Okay."                                                         
                                                                               
  Number 189                                                                   
                                                                               
  MS. LOPER:  "When there is a section just on definitions, it                 
  is the only... by that definition alone, that is what they                   
  are limited to, period."                                                     
                                                                               
  Number 202                                                                   
                                                                               
  CHAIRMAN PORTER:  "They've even -- when I've been reviewing                  
  statutes, as many years as I've been doing that, sometimes                   
  when there's a big definition section in the back, that's                    
  kind of frustrating.  This is right in the section.  Further                 
  discussion?  Is there objection?"                                            
                                                                               
  There being no further discussion or objections, Amendment                   
  19 as amended by adding `health care provider' instead of                    
  `physician' and `registered nurse of anesthesiology' after                   
  `optometrist', was adopted by the committee.                                 
                                                                               
  Number 212                                                                   
                                                                               
  MS. LOPER presented Amendment 20.  "As the testimony went by                 
  Sue Cox of the Department of Law, they urged that a standard                 
  shall be set for persons who are committing or attempting to                 
  commit or have committed a felony.  Remember, that is the                    
  sections that are relating to the exception to the cap on                    
  noneconomic or punitive damages.  So, in here we are just                    
  putting `who by a preponderance of the evidence was'...and                   
  that is the standard used in the civil law."                                 
                                                                               
  Brief discussion ensued between committee members.  Several                  
  superfluous appearances of the word "who" were removed from                  
  the amendment's text and the language was clarified.                         
                                                                               
  Number 259                                                                   
                                                                               
  Amendment 20 was moved by Rep. James.  There being no                        
  further discussion or objection, Amendment 20 as amended was                 
  adopted by the committee.                                                    
                                                                               
  Number 264                                                                   
                                                                               
  MS. LOPER took up Amendment 21, found on page 9, line 21.                    
  She said, "See where it says `a person who provides a                        
  collateral benefit admissible under (a) or (b) -- oops, that                 
  actually has nothing to do with admissing into evidence                      
  anything, it's actually (b) or (c).  So (b) talks about                      
  evidence that's admissible, and (c) talks about the same."                   
  Responding to questions from committee members, Ms. Loper                    
  said that every amendment needed to be independent and that                  
  (c) would be X'd out after the drafter had gone though the                   
  text.                                                                        
                                                                               
  Number 286                                                                   
                                                                               
  REP. JAMES moved Amendment 21.  There being no further                       
  discussion or objection, Amendment 21 was adopted by the                     
  committee.                                                                   
                                                                               
  Number 291                                                                   
                                                                               
  MS. LOPER continued with Amendment 22 on page 4, line 5.                     
  She stated, "Amendment 22 deals with the statute of repose                   
  in the construction industry.  In this amendment, the intent                 
  is to open up the doors a little bit further to plaintiffs                   
  `where a defendant intentionally or recklessly disregarded                   
  specific project design plans and specifications or building                 
  codes.'  We've made an exception to the statute of repose in                 
  the construction industry."                                                  
                                                                               
  REP. JAMES moved Amendment 22.                                               
                                                                               
  Number 314                                                                   
                                                                               
  REP. DAVIDSON requested further explanation of Amendment 22,                 
  which CHAIRMAN PORTER paraphrased:                                           
                                                                               
  "This is the infamous statute of repose as it applies to                     
  contractors.  After six years there is a bar from suit --                    
  and there is a bar from suits in general under the statute                   
  of repose, except for certain situations -- and we're                        
  saying, in addition to those standard exceptions, we want to                 
  add another exception to that six-year statute of repose                     
  that said it does not apply to a claim resulting from an                     
  intentional or reckless disregard of specific project design                 
  plans or specifications or building codes.  Well, if                         
  somebody intentionally or really messed up and didn't apply                  
  the right codes or specs, this is an exception to the six-                   
  year statute of repose."                                                     
                                                                               
  Number 337                                                                   
                                                                               
  REP. DAVIDSON:  "Intentional or reckless disregard.  Is that                 
  a difficult thing to prove in law?"                                          
                                                                               
  Number 346                                                                   
                                                                               
  MS. LOPER:  "It depends.  If the facts pretty much speak for                 
  themselves I guarantee that it is not going to be that hard.                 
  As you can tell, in Section (b), there is already a section                  
  established that gives a window out of the statute of repose                 
  if it was caused `intentionally or resulted from gross                       
  negligence, fraud, fraudulent misrepresentation or breach of                 
  an express warranty or guarantee.'  What this amendment                      
  really hits at is, it's trying to really look at the                         
  construction industry -- and I imagine that when you put                     
  together a house there are project design plans,                             
  specifications and building codes -- and so it's saying that                 
  even in these particular areas that they have to work on, if                 
  there is intentional or reckless disregard, in these three                   
  specific areas, we will not take a look at the statute of                    
  repose, and allow a claim to be brought in, at any time."                    
                                                                               
  REP. DAVIDSON:  "There was a constituent I had who bought a                  
  house and he had real big problems with the foundation...                    
  with the placement, and how they placed the foundation.                      
  Would this affect that person's ability to go after the                      
  contractor, because he apparently did not do the foundation                  
  correctly considering the location of where the foundation                   
  was?  Is that a different matter entirely?"                                  
                                                                               
  Number 386                                                                   
                                                                               
  MS. LOPER:  "If I understand your fact scenario right, if he                 
  intentionally misrepresented the foundation and said, `This                  
  is a perfect foundation, you're not going to have any                        
  problem with it,' I imagine that that would raise a red flag                 
  to fraudulent misrepresentation of the foundation, so the                    
  plaintiff will be given a window of opportunity there --                     
  particularly if it affects the construction of the house,                    
  and if the person had a design plan that was whipped up by                   
  an architect, and the construction agency used that, and                     
  they intentionally or recklessly disregarded the design plan                 
  or the building codes.  Of course, then, they would                          
  definitely be given that window."                                            
                                                                               
  Number 404                                                                   
                                                                               
  REP. DAVIDSON:  "This was done under current law, and the                    
  man had incredible problems trying to go after this person.                  
  I'm trying to decide whether this helps that constituent or                  
  if his situation becomes more difficult."                                    
                                                                               
  Number 409                                                                   
                                                                               
  CHAIRMAN PORTER:  "Well, it's really difficult to answer the                 
  question not knowing what the problems are that he's having.                 
  Is it a problem with the statute of repose, or a problem                     
  with the building code, or a problem with....?"                              
                                                                               
  Number 412                                                                   
                                                                               
  REP. NORDLUND:  "Maybe I can help with Rep. Davidson's                       
  question.  I think in a limited, a very limited way, it does                 
  help your person's situation.  My opinion, though, Mr.                       
  Chairman, is that this does not go far enough.  I think that                 
  at a minimum we have to trust that design professionals will                 
  at least follow the specifications and building plans and                    
  applicable codes.  And if they don't, they should be liable                  
  to suit.  The standard is way too high for intentionally or                  
  recklessly disregarding those codes.  I think, simply, if                    
  they have not followed the building codes and did not follow                 
  the design specifications or building plans that they should                 
  be open to suit.  I have an amendment to that effect later.                  
  I think that this is an improvement, but it does not go far                  
  enough."                                                                     
                                                                               
  Number 427                                                                   
                                                                               
  REP. GREEN:  "I'm wondering -- this doesn't object to,                       
  necessarily, the wording, but.... why wouldn't we start with                 
  the middle of the second line there with `intentional' and                   
  put it down here where we have these other exceptions?  In                   
  other words, if we were to start with `intentional or                        
  reckless disregard' and put that after `warranty' on line                    
  11, it seems like then somebody reading this would see                       
  altogether where the exceptions are and not have to page                     
  through it."                                                                 
                                                                               
  MS. LOPER said it did not matter "if it's situated there or                  
  in Section 2," noting, "but we have the bill drafter here,                   
  and Mike."                                                                   
                                                                               
  Number 443                                                                   
                                                                               
  MR. FORD analyzed the wording placement in the text of                       
  Amendment 22 and concluded that he felt it was acceptable.                   
                                                                               
  CHAIRMAN PORTER asked if there was further discussion or                     
  objection on Amendment 22.  There being objection, a roll                    
  call vote was taken.  Reps. Green, Phillips, Kott, James and                 
  Porter voted "Yeah;" Reps. Davidson and Nordlund voted "No."                 
  Amendment 22 was therefore adopted by the committee.                         
                                                                               
  Discussion of the next amendment, which was not numbered,                    
  followed.  It was agreed to number it 23 and renumber other                  
  amendments as needed.                                                        
                                                                               
  Number 488                                                                   
                                                                               
  MS. LOPER began discussion of Amendment 23, beginning on                     
  page 11, line 10.  She said, "This particular section is                     
  talking about the settlement offers.  On line 10 it                          
  says, `the offeree shall pay the actual costs and attorney                   
  fees.'   We looked at the definition of actual costs and                     
  felt that it is somewhat ambiguous, and in fact there is a                   
  specific court rule, 79, that hits on, exactly, defining                     
  costs, a list of the costs that it includes, and there is                    
  already a rule that is developed.  That is why we said,                      
  `costs allowed under the Alaska Rules of Civil Procedure.'                   
  And, in fact, in this Civil Rule 79, if a party contests a                   
  certain cost, that there is a hearing that they can go to.                   
  It's already a procedure that's developed.  And then, when                   
  we looked at attorney's fees, we wanted to put the word                      
  `reasonable' attorney fees."                                                 
                                                                               
  Number 511                                                                   
                                                                               
  REP. PHILLIPS:  "Following Rep. Davidson's arguments, is                     
  there a definition of `reasonable attorney's fees' anywhere                  
  in any statutes?  What is `reasonable' to one attorney may                   
  not be `reasonable' to another attorney."                                    
                                                                               
  Number 524                                                                   
                                                                               
  CHAIRMAN PORTER:  "That's why we have courts."                               
                                                                               
  REP. PHILLIPS:  "I don't think the word `reasonable' here is                 
  going to mean a darn thing to the judge."                                    
                                                                               
  Number 525                                                                   
                                                                               
  REP. NORDLUND:  "Within the context of this section, if                      
  you're trying to create an inducement to settle, and you're                  
  qualifying it by saying `reasonable fees,' that means the                    
  fees could be less, and there would be less inducement to                    
  settle.  That's what we're trying to do here with this                       
  section, right?  I don't really have an objection to it, but                 
  I think that could be the effect of it."                                     
                                                                               
  Number 536                                                                   
                                                                               
  CHAIRMAN PORTER:  "Well, I think, fair being fair, even with                 
  an inducement to settle, which obviously this is what this                   
  is for, I wouldn't want a court, and I wouldn't think many                   
  judges would interpret this this way, but I certainly                        
  wouldn't want anyone trying to convince a court that what we                 
  meant when we said this was every attorney fee, or every fee                 
  that a particular attorney dreamt up, and applied to this                    
  case -- whether it was right or wrong or indifferent -- the                  
  term to me is inherently definable.  It's reasonable.  It                    
  gives the judge the ability to say, `This is reasonable'."                   
  Chairman Porter asserted the preferability of a flexible                     
  over an absolute term.                                                       
                                                                               
  Number 552                                                                   
                                                                               
  MS. LOPER:  "That is why we particularly excluded the word                   
  `actual' because we wanted to make sure that costs and                       
  attorney's fees both would be reasonable.  Furthermore, we                   
  found a Civil Rule of Procedure, Rule 79, that goes through                  
  and allocates what our costs, what's the definition of it,                   
  what's reasonable, so it follows along with the intent."                     
                                                                               
  Number 561                                                                   
                                                                               
  REP. PHILLIPS:  "Chairman, do we want to identify the Rules                  
  of Procedure rule?"                                                          
                                                                               
  Number 562                                                                   
                                                                               
  CHAIRMAN PORTER:  "Not really, because it might change, they                 
  might reconfigure them.  Mike?"                                              
                                                                               
  Number 563                                                                   
                                                                               
  MR. FORD asked if he could raise a separate issue on the                     
  section.                                                                     
                                                                               
  CHAIRMAN PORTER replied that they would finish with the                      
  amendment first.                                                             
                                                                               
  Number 567                                                                   
                                                                               
  REP. DAVIDSON:  "When we talk about costs under these rules                  
  of procedure, and `reasonable,' would this then include all                  
  these different delay motions, and will the judge take into                  
  consideration the extended time in the process, and would                    
  some of those then be ruled unreasonable?  Because it seems                  
  like there is an unreasonable amount of time that passes                     
  every time some of these cases go to court; it seems like                    
  just the judge and the attorneys involved are the only ones                  
  who understand the delay.  It seems like there's always                      
  another hoop that they can jump through.  How does                           
  `reasonable' affect that kind of thing, as far as the                        
  judge's mind is concerned?  Some of them are obviously delay                 
  tactics, and so people who are responsible for the fees --                   
  on either side of the issue, the plaintiff or the defendant                  
  -- they get zapped with even greater attorney's fees.  How                   
  does that affect that in this instance?"                                     
                                                                               
  Number 588                                                                   
                                                                               
  MS. LOPER:  "In the section, Alaska Rule 79, it goes through                 
  and just talks about exactly, makes a list of all the costs                  
  that are to be considered under this settlement.  And then,                  
  to answer your question on attorney fees, I don't think that                 
  there is a clear definition of what is reasonable."  She                     
  noted the existence of a civil rule that contemplates the                    
  question of what is reasonable -- $175? $75? -- which does                   
  not arrive at a clear definition, but rather leaves the                      
  matter to the discretion of the judge on a case by case                      
  basis.                                                                       
                                                                               
  Number 605                                                                   
                                                                               
  MR. FORD:  "If your concern is undue litigation, that sounds                 
  like what you're talking about, then I think the amendment                   
  would be one you're in favor of, because it limits the fees                  
  to those that are reasonable as opposed to those that are                    
  actual.  If you had actual fees then it wouldn't matter how                  
  long it took, as long as you fell under the provisions of                    
  the section.  Not everyone will.  It's only in a certain                     
  case where you make the offer and the offer meets the                        
  criteria set out here, that you get the benefits of this                     
  section.  But assuming you do, and you have actual fees,                     
  then it's whatever they are.  By putting `reasonable' in                     
  here, I think you at least take a step down the road towards                 
  dampening that effect of undue litigation, someone who                       
  delays, for example, for no reason."                                         
                                                                               
  Number 618                                                                   
                                                                               
  REP. DAVIDSON:  "That was my concern, `undue delay' in                       
  litigation.  Undue delay -- the clock rate clock is ticking                  
  for both of the parties.  But one party is going to lose.                    
  Even if you win, and you get these fees, it seems that there                 
  will be a certain amount of the fees you will not get                        
  because it's just not included in what we're trying to                       
  accomplish here.  But you're saying that to try to be fair                   
  to the person who prevails, this would be a good step."                      
                                                                               
  Number 631                                                                   
                                                                               
  MR. FORD:  "This is a good step, not only for the person who                 
  prevails, but the person who prevails in a manner that                       
  doesn't delay unnecessarily."                                                
                                                                               
  CHAIRMAN PORTER:  "`Justice delayed is justice denied.'                      
  Further discussion on number 23?"                                            
                                                                               
  Number 637                                                                   
                                                                               
  REP. NORDLUND:  "Because we are introducing the possibility                  
  of differing interpretations of what is reasonable, could we                 
  get into a situation here where there would be further                       
  appeals filed based on what is `reasonable'?"                                
                                                                               
  CHAIRMAN PORTER:  "I would guess that we would be reducing                   
  that, because if we said `attorney fees' it begs the                         
  question.  Now, do you mean any attorney fee that I put in?                  
  Or what the judge thinks is reasonable, or what?  I think                    
  we're reducing that chance by saying `reasonable.'  I mean,                  
  we're at least making reasonable people look at this --                      
  maybe that's a contradiction in terms -- from a standpoint                   
  of, there's going to be a standard, like we've said                          
  previously, of `reasonable care;' there's going to be a                      
  standard of `reasonable attorney fees' applied to this, and                  
  most attorneys know which judge they're dealing with, and                    
  that kind of gives them a feeling of where to go.  But [if]                  
  you just say `attorney fees,' you can argue to an otherwise                  
  reasonable judge that, `No, no, no, you don't have any                       
  discretion in what this means.'  Further discussion on                       
  number 23?"                                                                  
                                                                               
  Number 656                                                                   
                                                                               
  REP. PHILLIPS requested the committee review the allowed                     
  costs section in Rule 79 and read aloud a portion of the                     
  rule.                                                                        
                                                                               
  Number 673                                                                   
                                                                               
  CHAIRMAN PORTER asked if there was any further discussion or                 
  objection on Amendment 23.                                                   
                                                                               
  Number 675                                                                   
                                                                               
  REP. DAVIDSON:  "I'm not objecting, I'm just thinking of the                 
  case we had here last year where the lawyer sued his client                  
  for not taking his legal advice."  [Startled unidentified                    
  voice:  "Can they do that?"]  "Well, I'm talking about the                   
  Division of Elections..." [Very brief exchange among                         
  committee members.]                                                          
                                                                               
  Number 682                                                                   
                                                                               
  CHAIRMAN PORTER:  "With that in mind... is there any further                 
  discussion on number 23?"  There being no further discussion                 
  or objection, Amendment 23 was adopted by the committee.                     
  Chairman Porter recognized Mike Ford to make a point on the                  
  next section at hand.                                                        
                                                                               
  Number 687                                                                   
                                                                               
  MR. FORD made a recommendation for amending this section of                  
  HB 292.  "[This] is something we have discovered as we have                  
  in the past, going through the bill.  The way we have                        
  amended this section of law, under `offer of judgment,' what                 
  we have done here is to delete the provision on awarding                     
  interest, and instead insert the attorney fee and cost                       
  language.  However, in looking at our section on amending                    
  this rule, we have not clearly indicated that in fact we are                 
  removing the award of interest.  So, I would suggest that                    
  the committee amend, I think it's Section 31, to clearly                     
  indicate that the rule is amended to eliminate the award of                  
  interest as well as to deal with awarding costs and attorney                 
  fees, to avoid any confusion on that point.  If we passed it                 
  the way it reads now, the court simply can say, `Well, we                    
  have a rule here on awarding interest, now we're awarding                    
  interest, costs and attorney fees.'"                                         
                                                                               
  Number 703                                                                   
                                                                               
  REP. DAVIDSON requested that Mr. Ford explain under what                     
  circumstances interest would be awarded; why was the                         
  provision on deleting interest being deleted; and what would                 
  be the effect of doing so?"                                                  
                                                                               
  Number 707                                                                   
                                                                               
  MR. FORD:  "Well, as the provision of law reads now, you get                 
  an interest adjustment depending on who you are.  If you                     
  qualify for the benefit.  What this section of the bill does                 
  is take that out -- the intent, I believe, is to take that                   
  out, and to award costs and attorney fees as we've just                      
  amended, in our last amendment.  By the fact that we are                     
  amending the rule in court, however, means we have to set                    
  out a separate section and tell the court system what we're                  
  doing, in amending the court rule.  Because there's a court                  
  rule on this section here, the offer of judgment.  There's a                 
  court rule specifically on that.  So all I'm saying is to be                 
  clear in what we are doing to the court rule, we should                      
  indicate that not only are we providing for the award of                     
  costs and attorney fees, but we are deleting an award of                     
  interest."                                                                   
                                                                               
  Number 721                                                                   
                                                                               
  REP. DAVIDSON:  "So, traditionally, the award of interest                    
  began to accrue from when?  The time the case went to trial?                 
  And then going through all the appeal process?   We're                       
  talking about interest that could have been earned on that                   
  money over the course of however long that case takes to be                  
  resolved?"                                                                   
                                                                               
  MR. FORD:  "Correct."                                                        
                                                                               
  REP. DAVIDSON:  "I'm not in favor of removing that because                   
  it seems to me in essence the amount that an aggrieved                       
  person is rightfully entitled to."                                           
                                                                               
  Number 733                                                                   
                                                                               
  MR. FORD:  "Well, what we've done is actually switched                       
  penalties here.  We have simply removed the interest and                     
  inserted a higher penalty.  We haven't removed the incentive                 
  to settle.  I think we have enhanced the incentive to                        
  settle, which was the purpose of this section.  The section                  
  is intended to reduce litigation, and it does that by                        
  providing an incentive to someone who makes an offer of                      
  judgment in good faith, and the other person will accept it,                 
  or, if they don't accept it, then they're hit, under                         
  existing law, with an interest adjustment.  So, what we've                   
  done in this section is say, well, we're going to remove the                 
  interest award, but we're going to substitute something                      
  that's even harder, a bit more difficult hit, if you will,                   
  in costs and attorney fees."                                                 
                                                                               
  Number 747                                                                   
                                                                               
  REP. DAVIDSON:  "There's so many things to consider in a                     
  situation like this that I have great fear that we're going                  
  to take a damaged individual and make them more damaged in                   
  some way."                                                                   
                                                                               
  Number 752                                                                   
                                                                               
  CHAIRMAN PORTER:  "When we ran this through different kinds                  
  of scenarios, small cases, big cases, whatever, this usually                 
  came out to be a greater incentive than just the interest.                   
  And that is what it is designed to do, to get it out of                      
  court."                                                                      
                                                                               
  CHAIRMAN PORTER addressed Section 31, suggesting that                        
  committee members consider page 15, Section 31, line 20, a                   
  friendly amendment to Amendment 23, augmenting the language                  
  as discussed.  There being no objection to Amendment 23 as                   
  amended, Amendment 23 as amended was adopted by the                          
  committee.                                                                   
                                                                               
  Number 773                                                                   
                                                                               
  MS. LOPER presented Amendment 24 on page 8, line 5.  She                     
  said, "The Department of Law looked this section over...                     
  it's dealing with the periodic payments.  If a party does                    
  choose to go after periodic payments, the court is going to                  
  set up this security to be posted, and so forth.  The                        
  Department of Law suggests that a city or a municipality or                  
  a state should not be subject to this."  The result of                       
  Amendment 24 is that the court may not require a security be                 
  posted by a state or municipality.                                           
                                                                               
  Number 790                                                                   
                                                                               
  REP. PHILLIPS asked, "What would happen in the case of a                     
  small municipality that doesn't have the finances available                  
  for security against a claim?"                                               
                                                                               
  Number 793                                                                   
                                                                               
  CHAIRMAN PORTER said he believed the municipality would have                 
  to acknowledge to the court their obligation to discharge                    
  the judgment.                                                                
                                                                               
  Number 795                                                                   
                                                                               
  Committee members, Ms. Loper and Mr. Ford reviewed the use                   
  of the term `self-insured' in terms of state or municipal                    
  entities and discussed state responsibility and authority                    
  with respect to municipalities.  There being some ambiguity                  
  in these matters, it was agreed for the time being to set                    
  aside further discussion of Amendment 24.                                    
                                                                               
  Number 813                                                                   
                                                                               
  MS. LOPER introduced Amendment 25, which she said should                     
  replace Amendment 8.  "In Amendment 8, that we have passed,                  
  we said that the threshold for periodic payments should be                   
  $50,000.  Under the suggestion of the Department of Law, we                  
  have raised the threshold to $100,000."                                      
                                                                               
  REP. PHILLIPS asked whose recommendation that was and Ms.                    
  Loper replied, "The Department of Law."  Rep. Phillips asked                 
  for the Department's justification for the change.                           
                                                                               
  CHAIRMAN PORTER replied it was a policy call reflecting a                    
  review of the range of thresholds in other states.                           
                                                                               
  REP. PHILLIPS expressed the belief that $50,000 had been a                   
  middle range figure.                                                         
                                                                               
  CHAIRMAN PORTER acknowledged that this was "a little bit of                  
  a concession to those that think periodic payments are not                   
  something that should be considered" for smaller cases.                      
                                                                               
  REP. DAVIDSON moved Amendment 25.  There being no further                    
  discussion or objection, Amendment 25 was adopted by the                     
  committee.                                                                   
                                                                               
  TAPE 94-38, SIDE A                                                           
  Number 000                                                                   
                                                                               
  REP. NORDLUND presented some suggested amendments.  He noted                 
  that they might not be in the order that they would appear                   
  in the bill.                                                                 
                                                                               
  The first amendment was on page 2, line 15, in the Purpose                   
  section, adding additional language to conform with No. 4 in                 
  the Findings section, which, Rep. Nordlund said, "...just                    
  recognizes the fact that...`on the whole, society would be                   
  better served with a statute of repose even though in a few                  
  limited circumstances injuries may go without compensation.'                 
                                                                               
  "That same kind of concept is then carried down into the                     
  Purpose section, so it would read:  `The purpose of this act                 
  is to reduce the costs associated with the civil justice                     
  system while ensuring that adequate and appropriate                          
  compensation for persons injured through the fault of others                 
  is available except in a few limited instances.'"                            
                                                                               
  Number 044                                                                   
                                                                               
  REP. PHILLIPS asked for the legal ramifications of the                       
  amendment.                                                                   
                                                                               
  CHAIRMAN PORTER asked Ms. Loper to comment.                                  
                                                                               
  REP. JAMES was more immediately familiar with the portion of                 
  the bill under discussion, however, and provided an                          
  analysis.                                                                    
                                                                               
  Number 063                                                                   
                                                                               
  REP. JAMES:  "Well, it's two different issues.  First of                     
  all, in No. 4, it says, `On the whole society is better                      
  served with the statute of repose even though in a few                       
  limited instances injuries may go without compensation.'                     
  And then... [there is] this one, where it indicates that                     
  `reduced costs associated with the civil justice system                      
  while ensuring that adequate and appropriate compensation                    
  for a person's injury through the fault of others is                         
  available,' and there is nothing to say up above that there                  
  is fault.  My reason for even picking at that is,                            
  particularly in the statue of repose, it is possible without                 
  any fault of the person that's doing the building, or                        
  whatever, that there is something that goes wrong with the                   
  building and people could then be found to be compensated.                   
  I think that saying `through the fault of others' we're                      
  trying to determine here that when the fault is there they                   
  will get paid; when the fault is not there, they won't.  And                 
  that is one of the reasons for the repose -- to stop                         
  unnecessary lawsuits when there is no fault."                                
                                                                               
  Number 094                                                                   
                                                                               
  REP. NORDLUND:  "I just think that you are going to find                     
  that in a few limited circumstances that there will not be                   
  adequate compensation for people who are injured.  And it's                  
  not hard to imagine that there will be situations when                       
  people are injured beyond the $500,000 cap that's imposed by                 
  this bill.  And this is just recognizing that fact."                         
                                                                               
  Number 103                                                                   
                                                                               
  CHAIRMAN PORTER said he felt it was recognizing the point of                 
  view and not necessarily the law and stated that he would                    
  not support the amendment.                                                   
                                                                               
  Number 107                                                                   
                                                                               
  REP. GREEN asked for clarification of the intent of the                      
  amendment and the kind of cases in which an injured party                    
  would not be compensated.                                                    
                                                                               
  REP. NORDLUND:  "I guess what I'm trying to get at here is                   
  simply that when you set caps arbitrarily, that there will                   
  be a few limiting instances where people will not receive                    
  adequate compensation."                                                      
                                                                               
  CHAIRMAN PORTER:  "Well, we have set caps on punitive                        
  damages and noneconomic damages.  Those are, by your                         
  definition, arbitrary.  Somebody has got to make up their                    
  mind.  For us to say that we're going to recognize it -- I                   
  think it goes without saying that any time there is an award                 
  in those kinds of cases the plaintiff wanted more and the                    
  defendant wanted less.  But to say that we expect in a few                   
  limited circumstances that [the award] wouldn't be adequate                  
  is not the intent, and that's what this section is, and so I                 
  would oppose it."                                                            
                                                                               
  Number 146                                                                   
                                                                               
  REP. JAMES stated opposition, for the same reason.  "In no                   
  way, shape or form would I be proposing to pass this if I                    
  thought that there were going to be some people who were                     
  going to be not getting compensation.  I believe that this                   
  legislation does provide adequate compensation."                             
                                                                               
  Number 155                                                                   
                                                                               
  REP. DAVIDSON:  "If Rep. James has that feeling, why do we                   
  have that on line 3?   We're making the admission here that                  
  there are going to be some injuries that go without                          
  compensation, and I think it makes the effort here a little                  
  more honest."                                                                
                                                                               
  Number 165                                                                   
                                                                               
  MS. LOPER:  "I think that there are two completely different                 
  issues here.  Rep. Davidson, you are looking at the statute                  
  of repose, which in some instances, people will wait past                    
  the six years or whatever length of time and they will miss                  
  bringing a claim to the courts.  However, in the section                     
  that Rep. Nordlund is referring to, it is referring to the                   
  issue of percentage fault, what is adequate and appropriate                  
  compensation for persons injured through the fault of                        
  others.  I imagine that it might involve caps and damages                    
  but, in particular, it's looking at the percentage of                        
  fault."                                                                      
                                                                               
  Number 185                                                                   
                                                                               
  REP. DAVIDSON:  "That may be so, but sometimes people are                    
  not going to get compensated who would be eligible for                       
  compensation.  Because when you look and see what we've been                 
  doing, we're not giving people more access to the legal                      
  system, we're giving them less access to the legal system.                   
  And, you know the cuts that we see going on?  That's the                     
  thing that bothers me.  Justice denied is where we're                        
  headed.  I think [this amendment] makes it a little more                     
  honest.  It may be two different issues, but I have real                     
  concerns about the way we're going."                                         
                                                                               
  Number 205                                                                   
                                                                               
  REP. NORDLUND offered clarification, saying, "This could                     
  easily apply also to the statute of repose.  People will not                 
  be receiving appropriate compensation for injuries they                      
  receive if they get in an automobile accident and the car is                 
  six and a half years old.  They will absolutely not receive                  
  adequate compensation for that, because of the effect of                     
  this bill.  So it does apply directly to the statute of                      
  repose as well as to the caps on damages."                                   
                                                                               
  Number 216                                                                   
                                                                               
  CHAIRMAN PORTER:  "Well, the statute of repose -- your                       
  example presumes that the fault was a manufacturing fault                    
  that was absolutely the fault of the manufacturer that was                   
  found six and one half years later.  As is the general                       
  consideration for statutes of repose, those kinds of                         
  problems are in the main either intentionally hidden, as is                  
  the case in the Pinto case that was graphically portrayed by                 
  the Department of [indisc.], or the fact that there is                       
  negligence on the part of the owner or the maintainer.  So,                  
  from that standpoint, I would disagree with your statement                   
  that a person who had a problem after six and a half years                   
  is automatically out of the running for any compensation.                    
  That's not the case.  Maybe they don't have any coming                       
  because they injured their own car and more than likely it                   
  was a maintenance problem and perhaps if they were doing                     
  their own maintenance that's their maintenance that's their                  
  fault.  If someone else was doing it, they have a problem                    
  with them.  There's all sorts of other alternatives other                    
  than suing the manufacturer."                                                
                                                                               
  CHAIRMAN PORTER asked if there was further discussion on                     
  Amendment 26.                                                                
                                                                               
  REP. PHILLIPS suggested holding the amendment to give her                    
  the opportunity to check with the Department of Law                          
  concerning the insertion of the statement proposed in the                    
  amendment.  It was agreed that Amendment 26 be held.                         
                                                                               
  Number 253                                                                   
                                                                               
  Committee members discussed numbering of amendments.                         
                                                                               
  REP. NORDLUND presented Amendment 27, which would remove                     
  from the statute of repose the section dealing with newly                    
  manufactured products.  Rep. Nordlund recognized a perceived                 
  need and desire among Alaskans for a statute of repose                       
  encompassing Alaskan professionals such as contractors,                      
  architects and medical personnel.  He urged, however, that                   
  Alaskans maintain their legal protections from injuries or                   
  deaths caused by outside manufacturers.                                      
                                                                               
  REP. NORDLUND:  "I cannot understand, for the life of me,                    
  why we're seeking to protect outside manufacturers from                      
  injuries that they might cause to Alaskans.  I see this                      
  section as being particularly un-Alaskan, as unfriendly to                   
  the Alaskan public.  We're not a large manufacturing state.                  
  Most of the products we purchase up here are produced out-                   
  of-state, and frankly, I haven't even been able to identify                  
  any of the interest groups out there that are strongly                       
  supporting this part of the bill.  I think it's a great                      
  disadvantage to the folks in our state."                                     
                                                                               
  Number 298                                                                   
                                                                               
  REP. DAVIDSON amplified Rep. Nordlund's concerns, saying, "I                 
  would even call it anti-Alaskans.... I do think Alaska is                    
  the end of the line.  We get a lot of shoddily manufactured                  
  goods up here... they just send [them] up -- `ha, ha, ha,                    
  the Alaskans took it!'  That's why I strongly support this                   
  amendment...."  Rep. Davidson enumerated factors unfavorably                 
  affecting Alaskan consumers and concluded that Rep.                          
  Nordlund's proposed amendment was important in protecting                    
  Alaska citizens.                                                             
                                                                               
  Number 325                                                                   
                                                                               
  CHAIRMAN PORTER:  "If I may, by way of response, I would ask                 
  the previous two speakers to review the material that we                     
  have... supporting this point of view, and this whole bill."                 
  Chairman Porter referred to a survey by the small business                   
  association of the state, asserting that the small business                  
  people in the state strongly support the bill.                               
                                                                               
  CHAIRMAN PORTER stated, "[I]f we can provide an environment                  
  that's healthy for business, then we won't have so many                      
  outside manufacturers, we'll have some inside manufacturers                  
  who we can go down and talk to personally."  He cited                        
  testimony from a small business person in Juneau "who was                    
  trying to make it but was having problems with their                         
  insurance costs, and supported very vigorously this bill,                    
  just for that reason, that they want to be able to continue                  
  to provide quality products here in this state.... I think                   
  that what we're trying to do is create a business-friendly                   
  environment here by this bill."                                              
                                                                               
  Number 353                                                                   
                                                                               
  REP. JAMES reinforced Chairman Porter's comments with                        
  further testimony, citing the example of a Fairbanks sports                  
  dealer who'd been put out of business after ten years,                       
  "through no fault of his own," after a recreational vehicle                  
  he had been selling for ten years was involved in an                         
  accident and it was established that there was a design                      
  defect in the product.  Noting that the manufacturer and the                 
  dealer were both put out of business, Rep. James concluded,                  
  "I think we need to protect our business people."                            
                                                                               
  Number 373                                                                   
                                                                               
  REP. DAVIDSON:  "Perhaps there is a more creative way we                     
  could protect our Alaskan business people.  Certainly the                    
  argument is there, and I would want to do that.  But why                     
  should we be protecting everybody else and have the Alaskan                  
  consumer end up with all the junk that's left over?  I see                   
  the problem, but it seems to me we could be more creative in                 
  protecting the Alaskan businesses manufacturer.  It seems                    
  ironic that a[nother] state that does not have a six-year                    
  statute of repose, if we are exporting things [to it], they                  
  can still come after that Alaskan business in another state.                 
  Isn't that correct?"                                                         
                                                                               
  CHAIRMAN PORTER requested clarification of the question.                     
                                                                               
  REP. DAVIDSON:  "If an article is manufactured here and                      
  shipped out to another state and is purchased, and this kind                 
  of suit is brought against the manufacturer here in Alaska,                  
  because that state does not have a statute of repose of six                  
  years, does that mean that that person could bring an action                 
  against that Alaskan manufacturer?"                                          
                                                                               
  MS. LOPER:  "That is correct, yes, but in 22 states they                     
  have a statute of repose."                                                   
                                                                               
  CHAIRMAN PORTER:  "This isn't new ground."                                   
                                                                               
  REP. DAVIDSON:  "Well, it's new every day, for me."                          
                                                                               
  CHAIRMAN PORTER asked if there was further discussion.                       
                                                                               
  Number 410                                                                   
                                                                               
  REP. NORDLUND:  "I'd just like to point out that, in the                     
  memo that did come from legal, this is one of the areas                      
  where they point out a possible [indiscernible because of                    
  another voice over this portion - constitutional?] problem."                 
                                                                               
  Number 425                                                                   
                                                                               
  CHAIRMAN PORTER:  "Ah, good, we'll deal with that right                      
  after we deal with this amendment.  There is objection to                    
  Amendment 27.  Can we have a roll call vote please?"  Reps.                  
  Porter, James, Phillips and Green voted "No;" Reps. Nordlund                 
  and Davidson voted "Yeah."  Amendment 27 was therefore not                   
  adopted by the committee.                                                    
                                                                               
  The meeting of the House Judiciary Standing Committee was                    
  adjourned [no time given].  Chairman Porter noted that                       
  committee members now had before them a folder containing                    
  the Department of Law analysis of HB 292, as well as                         
  responses to the criticisms presented.  He encouraged                        
  committee members to review it prior to the next scheduled                   
  House Judiciary committee meeting scheduled for 10:00 a.m.                   
  the next morning.                                                            
  HB 445 - NOT HEARD TODAY                                                     
  HB 460 - NOT HEARD TODAY                                                     
  HB 376 - NOT HEARD TODAY                                                     

Document Name Date/Time Subjects