04/06/2004 01:50 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 6, 2004
1:50 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 549
"An Act relating to unsolicited communications following an
aircraft accident; and amending Rule 503, Alaska Rules of
Evidence."
- MOVED CSHB 549(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 336
"An Act limiting recovery of civil damages by an uninsured
driver; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 438
"An Act relating to motorists moving over or slowing down for
emergency vehicles."
- MOVED CSHB 438(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 430
"An Act relating to employees under 21 years of age in the
premises of hotels, restaurants, and eating places that are
licensed to sell, serve, deliver, or dispense alcoholic
beverages."
- MOVED HB 430 OUT OF COMMITTEE
HOUSE BILL NO. 275
"An Act relating to veterinarians and animals."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 549
SHORT TITLE: UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
SPONSOR(S): JUDICIARY
03/29/04 (H) READ THE FIRST TIME - REFERRALS
03/29/04 (H) JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 336
SHORT TITLE: CIVIL DAMAGES FOR UNINSURED DRIVERS
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) <Bill Hearing Postponed>
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 438
SHORT TITLE: MOVE OVER LAW FOR DRIVERS
SPONSOR(S): REPRESENTATIVE(S) HOLM
02/05/04 (H) READ THE FIRST TIME - REFERRALS
02/05/04 (H) TRA, STA, JUD
02/17/04 (H) TRA AT 1:30 PM CAPITOL 17
02/17/04 (H) Scheduled But Not Heard
02/24/04 (H) TRA AT 1:30 PM CAPITOL 17
02/24/04 (H) Moved Out of Committee
02/24/04 (H) MINUTE(TRA)
02/26/04 (H) TRA RPT 3DP 2NR
02/26/04 (H) DP: OGG, STEPOVICH, HOLM; NR: MASEK,
02/26/04 (H) KOHRING
03/09/04 (H) STA AT 8:00 AM CAPITOL 102
03/09/04 (H) Moved CSHB 438(STA) Out of Committee
03/09/04 (H) MINUTE(STA)
03/12/04 (H) STA RPT CS(STA) 1DP 2NR 3AM
03/12/04 (H) DP: LYNN; NR: COGHILL, WEYHRAUCH;
03/12/04 (H) AM: GRUENBERG, SEATON, HOLM
04/02/04 (H) JUD AT 1:00 PM CAPITOL 120
04/02/04 (H) <Bill Hearing Postponed TO 4/5/04>
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 430
SHORT TITLE: EMPLOYEES UNDER 21 AT LICENSED PREMISES
SPONSOR(S): REPRESENTATIVE(S) KERTTULA
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) L&C, JUD
02/25/04 (H) L&C AT 3:15 PM CAPITOL 17
02/25/04 (H) Moved Out of Committee
02/25/04 (H) MINUTE(L&C)
02/26/04 (H) L&C RPT 5DP
02/26/04 (H) DP: CRAWFORD, LYNN, ROKEBERG,
02/26/04 (H) GUTTENBERG, GATTO
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) <Bill Hearing Postponed>
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 275
SHORT TITLE: VETERINARIANS AND ANIMALS
SPONSOR(S): REPRESENTATIVE(S) CHENAULT
04/17/03 (H) READ THE FIRST TIME - REFERRALS
04/17/03 (H) L&C, RES
02/20/04 (H) L&C AT 3:15 PM CAPITOL 17
02/20/04 (H) <Bill Hearing Postponed>
03/29/04 (H) L&C AT 3:15 PM CAPITOL 17
03/29/04 (H) Moved CSHB 275(L&C) Out of Committee
03/29/04 (H) MINUTE(L&C)
03/31/04 (H) RES REFERRAL WAIVED
04/01/04 (H) L&C RPT CS(L&C) NT 3DP 2NR 1AM
04/01/04 (H) DP: CRAWFORD, LYNN, ANDERSON;
04/01/04 (H) NR: ROKEBERG, DAHLSTROM; AM: GUTTENBERG
04/01/04 (H) JUD REFERRAL ADDED AFTER L&C
04/01/04 (H) FIN REFERRAL ADDED AFTER JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 549 on behalf of the House
Judiciary Standing Committee, sponsor.
MARCIA R. DAVIS, Vice President and General Counsel
Era Aviation, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 549, providing background
information and answering questions.
TOM NICOLOS, General Manager
Cape Smythe Air Service;
Vice President
Board of Directors
Alaska Air Carriers Association
Barrow, Alaska
POSITION STATEMENT: Voiced strong support for HB 549.
ART WARBELOW, President
Warbelow's Air Ventures, Inc.
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 549.
ED GREGOR (ph)
AIG Aviation Insurance (ph)
(No address provided)
POSITION STATEMENT: Testified on HB 549, echoing testimony of
Mr. Nicolos and Mr. Warbelow and providing the perspective of an
insurance claims handler.
PAUL LANDIS, Member
Board of Directors
Alaska Air Carriers Association
Anchorage, Alaska
POSITION STATEMENT: Urged support for HB 549 as written.
MELISSA FOUSE
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 549, saying it's absurd to
make this a felony and asking for consideration of those hurt or
killed in accidents.
ROBERT JACOBSEN, President
Wings of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 549.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 336.
JOHN L. GEORGE, Lobbyist
for Property Casualty Insurers Association of America
Juneau, Alaska
POSITION STATEMENT: Testified during the discussion of HB 336.
DONNA J. McCREADY, Attorney at Law
Ashburn and Mason
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 336.
MICHAEL J. SCHNEIDER, Attorney at Law
Law Offices of Michael J. Schneider, PC
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 336.
MICHAEL L. LESSMEIER, Attorney at Law
Lessmeier & Winters
Lobbyist for State Farm Insurance Company ("State Farm")
Juneau, Alaska
POSITION STATEMENT: Testified during the discussion of HB 336.
MATTHEW RUDIG, Staff
to Representative Jim Holm
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided background information regarding
HB 438 on behalf of Representative Holm, sponsor.
ALLEN STOREY, Lieutenant
Central Office
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 438; provided
comments during discussion of HB 275.
SHELLEY OWENS, Health Program Manager
Community Health & Emergency Medical Services
Division of Public Health
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 438.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 430.
AURORA HAUKE, Staff
to Representative Beth Kerttula
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered a question relating to HB 430.
ELISE HSIEH, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Suggested changes to HB 275.
TIM COLBATH, Founder
Alaska's Extended Life Animal Sanctuary
Nikiski, Alaska
POSITION STATEMENT: Testified in support of HB 275.
CHRISTINE HEINTZ
Sterling, Alaska
POSITION STATEMENT: Testified in support of HB 275.
BARBARA BRINK, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Relayed the PDA's concerns during
discussion of HB 275.
SHARALYN WRIGHT, Staff
to Representative Mike Chenault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 275, provided a
comment to the PDA on behalf of the sponsor, Representative
Chenault.
ETHEL CHRISTENSEN, Executive Director
Alaska Society for the Prevention of Cruelty to Animals (SPCA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 275, offered her
belief that mandatory jail time should be imposed for heinous
crimes involving animal cruelty.
SALLY CLAMPITT, President
Alaska Equine Rescue (AER)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 275.
ACTION NARRATIVE
TAPE 04-59, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:50 p.m. Representatives
McGuire, Holm, Samuels, and Gara were present at the call to
order. Representatives Anderson, Ogg, and Gruenberg arrived as
the meeting was in progress.
HB 549 - UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
Number 0077
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 549, "An Act relating to unsolicited
communications following an aircraft accident; and amending Rule
503, Alaska Rules of Evidence."
Number 0120
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
presented HB 549 on behalf of the House Judiciary Standing
Committee, sponsor. Calling it is a good, straightforward,
"anti-ambulance chaser bill" that regulates the conduct of
attorneys, Ms. Tondini said it mirrors what is currently done
under the Alaska Rules of Professional Conduct and federal law.
It basically says an attorney cannot solicit business or contact
individuals for 45 days after an aviation accident.
Number 0201
REPRESENTATIVE HOLM moved to adopt the proposed committee
substitute (CS) for HB 549, Version 23-LS1860\D, Bullock,
4/1/04, as a work draft. There being no objection, Version D
was before the committee.
MS. TONDINI explained that the original bill included a
reference to the attorney-client privilege. At such an early
stage of communication, however, there is no attorney-client
privilege in effect, so that reference was removed in Version D
after review of the bill and discussions with other attorneys.
MS. TONDINI noted that while HB 549 is based on federal law, it
applies only to intrastate flights that take place entirely
within Alaska. It differs from the federal counterpart in that
a reference to the air carrier's attorney has been added to make
it clear that all attorneys are to refrain from unsolicited
contact with injured passengers and their families during this
difficult time when they are vulnerable to external pressures
and may make premature decisions. The bill only prevents
lawyers and their agents from initiating contact; a person may
call an attorney at any time. Thus Ms. Tondini opined that this
doesn't hinder a person's ability to get effective assistance or
counsel. Noting that people on teleconference could provide
greater detail, she offered to answer questions.
Number 0358
REPRESENTATIVE GARA remarked that the intent seems fine of not
having an attorney seek these clients, but the bill as written
seems to go beyond that. He explained two concerns. First, a
person might want the attorney he/she hired to be able to
contact a witness - who may be an individual injured in the
accident - for confirmation. Second, if a potential party may
not contact an individual injured in the accident, that means
someone may not speak about [a potential action] to the person
who was sitting in the adjacent seat, for example, in order to
decide how to proceed. He asked why that should be included.
CHAIR McGUIRE suggested the first part could be narrowed as to
the potential party to say something like "unless the attorney
has been voluntarily contacted by a claimant" and that the party
is a part of the [incident], for example.
REPRESENTATIVE GARA, in response to a request from Chair
McGuire, reiterated his second concern.
REPRESENTATIVE SAMUELS agreed with respect to the second concern
and allowing passengers to talk with each other. As for the
first concern, he urged caution, since a lawyer who'd been
contacted by one person would be the only lawyer who could then
call everybody else.
REPRESENTATIVE GARA noted that it would still be criminal for
that lawyer to ask, "By the way, can I represent you?"
REPRESENTATIVE SAMUELS mentioned connecting the dots, though.
MS. TONDINI explained that the language is based on the federal
law, which includes both an attorney and a potential party.
Number 0645
CHAIR McGUIRE asked whether this is identical to the federal
language.
MS. TONDINI replied, "Except that it's expanded to cover the air
carrier's attorney." She noted that the federal law and the
language of the Alaska Rules of Professional Conduct are in the
bill packet. Addressing Representative Gara's concern about the
breadth, she suggested possibly including language from
Rule 7.3(a) and narrowing it to situations of solicitation,
rather than actual working relationships. Ms. Tondini surmised
that one reason for saying someone shouldn't be contacted by an
attorney might be that once a person is represented by an
attorney, it is illegal to go through that person and not
his/her lawyer. Since there will be a time during which people
won't be represented, she suggested this will "keep everyone
away" until they take it upon themselves to seek [legal
counsel].
CHAIR McGUIRE remarked that 45 days is a fairly insignificant
amount of time to ask somebody to wait and have a cooling-off
period when compared with the years such a case could take. She
indicated her intention to look at narrowing it a little bit,
but added that there still probably will "be a place where
there's a rub" because of the concerns Representative Samuels
had brought up.
REPRESENTATIVE SAMUELS suggested [a plaintiff] who wanted
his/her attorney to talk to other passengers could ask the
passengers to talk to the attorney. He said it wouldn't be fair
to a reputable attorney who follows the 45-day rule, which is
the federal standard, to "let somebody in the back door here."
REPRESENTATIVE GARA said there are two different issues. First,
in any involved case it is necessary to start investigating
right away in order to gather facts, find people before they
leave the state, avoid having stale evidence, and so forth. As
for having an attorney contact a witness who then wants to be
represented by the attorney, Representative Gara said that
happens now. He clarified that he has no problem making it a
crime for an attorney to solicit a client, especially in this
timeframe, but emphasized the need to avoid getting in the way
of someone to be represented and have fact finding done.
Second, he said he doesn't understand the policy of not letting
a potential party talk to another passenger for 45 days.
Number 0928
REPRESENTATIVE GRUENBERG remarked that he sees nothing in the
federal law that has a criminal penalty anything like this. He
asked Ms. Tondini about it.
MS. TONDINI replied that she believes the state criminal penalty
was chosen "just for teeth" in enforcement. She conveyed her
understanding that it's not enforced very much on the federal
level and is a small civil fine.
REPRESENTATIVE GRUENBERG said it's $1,000 a day.
MS. TONDINI responded, "They shouldn't be doing it anyway."
CHAIR McGUIRE highlighted the desire for a meaningful penalty
and said the amount [attorneys] could get in contingency fees
could be high enough that they'd pay a $10,000 penalty with no
problem, as part of doing business. She said the point of the
criminal penalty is that it's recognized by the bar in terms of
retaining a license. She expressed the desire for this to have
teeth and not be a cost that's simply absorbed [by the offending
attorney].
REPRESENTATIVE GRUENBERG asked whether there has been any
constitutional challenge at the federal level.
MS. TONDINI said she wasn't sure, but suggested somebody on
teleconference might be able to answer.
REPRESENTATIVE GRUENBERG remarked that he sees one or two minor
problems with this.
Number 1052
REPRESENTATIVE GARA proposed having the bill read as follows
beginning on line 6 [page 1]:
... an attorney may not initiate contact with an
individual injured in the accident or a relative of an
individual involved in the accident to offer or
discuss representation based on the accident for
personal injury or wrongful death within 45 days of
the accident.
REPRESENTATIVE GARA explained that the foregoing would [exclude]
"potential party" and replace "concerning a potential action"
with "to offer or discuss representation based upon the
accident".
CHAIR McGUIRE turned to public testimony.
Number 1127
MARCIA R. DAVIS, Vice President and General Counsel, Era
Aviation, Inc. ("Era"), indicated the proposal [by
Representative Gara] is exactly what she'd suggest. She pointed
out that under the federal law where it has the language
"potential party", the reference was intended to capture the air
carrier. However, the state bill goes further by including
language that prohibits contact by an attorney for the air
carrier. Thus she said "or potential party" is not needed.
MS. DAVIS referred to comments by Representative Gara that one
wouldn't want to prohibit an attorney from contacting other
witnesses or gathering facts. Saying this is a legitimate
concern, she suggested that deleting "or potential parties"
solves that problem and yet still bars the attorney for the air
carrier from contacting individuals. She added that the
language just proposed about retention for employment works
extremely well also.
MS. DAVIS spoke to the overall bill, saying ERA's Bush
operations out of Bethel have run very smoothly, with a good
relationship with passengers, management by people who live in
Bethel, and little difficulty; in the last year and a half,
however, there has been evidence that people are creating
"nuisance lawsuits" in situations that previously weren't
litigable. She said it's almost a cottage industry in the Bush,
with attorneys advising people in the immediate aftermath when
they hear that a plane landed just short of the runway and there
was a bump, for example; they plant ideas in the minds of people
who otherwise wouldn't have thought about suing.
MS. DAVIS said these lawsuits are beginning to be a real problem
for insurers; they take away attention from legitimate claims
and affect the willingness to do business. Unfortunately, the
teeth in the mechanisms to prevent this behavior aren't there.
The ethics rules have a lot of "wiggle room," particularly in
small communities where people can claim they're personal
friends or connected to the families somehow. Likewise, she
said, the federal law has been virtually useless, since it
requires the NTSB [National Transportation Safety Board] or the
U.S. Attorney General to issue a citation; it simply doesn't
happen in Alaska's intrastate environment. Even if substantial
resources were expended, she suggested the $1,000 fine would be
laughed at and considered the cost of doing business.
MS. DAVIS opined that this is an important statement to make -
not only to the community at large and lawyers at large, but
also to insurers, to let them know an effort is being made to
keep costs rational but fair. Ms. Davis reported that she'd
seen no cases on the federal side challenging this particular
statute, which was passed as part of the aviation disaster and
family assistance Act and is imbedded in an NTSB provision. She
noted that there was a sting operation on lawyers done perhaps
15 years ago in the aftermath of these accidents, which
culminated in passage of the federal law.
Number 1411
REPRESENTATIVE SAMUELS declared a conflict, saying he is
employed by a small air carrier.
CHAIR McGUIRE objected, specifying that Representative Samuels
is required to participate and vote.
REPRESENTATIVE GARA asked Ms. Davis if attorneys are calling
people and asking whether they want to sue.
MS. DAVIS answered that they're actually going to the hospital.
Whenever there is a bump, for example, Era [encourages] the
passengers to go to the health center as a prophylactic measure.
[Chair McGuire turned the gavel over to Vice Chair Anderson.]
REPRESENTATIVE GARA remarked that assuming the language is
adopted that he and she discussed, he'll support the bill. He
suggested perhaps Ms. Davis should file a bar complaint [against
those attorneys].
MS. DAVIS reiterated that she'd looked at the ethics rules but
found wiggle room. She said Rule 7.3 basically prohibits a
lawyer from soliciting in person or via telephone contact; the
exception is if the prospective client is related.
REPRESENTATIVE GARA asked Ms. Davis to call him if she sees a
case that comes close to that line again, saying he might sign a
bar complaint with her.
MS. DAVIS explained that she is cautious because there are lots
of various relationships within small communities and it
wouldn't be good to take a broad swath that makes an enemy out
of a sector of a community. She acknowledged that these are
extreme cases.
Number 1548
TOM NICOLOS, General Manager, Cape Smythe Air Service; Vice
President, Board of Directors, Alaska Air Carriers Association,
voiced strong support for HB 549 on behalf of both the air
service and the association in order to correct an oversight in
the federal aviation disaster and family assistance Act of 1996,
which failed to put into effect any substantial deterrent.
Saying the air service has seen attorneys firsthand who operate
with disregard to the federal Act, he cited an example.
Agreeing with providing for passengers who are involved in
occurrences, he emphasized the need to stop the sense of
entitlement that has been fostered by attorneys who know the
system and know that they can "muscle settlements" out of air
carrier insurers, and who take advantage of families when they
are most vulnerable.
Number 1652
ART WARBELOW, President, Warbelow's Air Ventures, Inc., began by
saying his business has operated about 35 years and has about
100 employees in Fairbanks. He expressed support for HB 549
because of the high cost of liability insurance, the fourth-
largest expense behind labor, fuel, and parts.
[Vice Chair Anderson returned the gavel to Chair McGuire.]
MR. WARBELOW continued, saying most air carriers in Alaska are
underinsured; there is a legal [minimum] of $300,000, and most
[have insurance limits] in the range of $300,000 to $500,000.
When there's an accident, a company realizes the carrier is
underinsured and is willing to settle quickly for policy limits.
In that scenario, an attorney who can get to the victim can
extract a significant contingent fee, knowing it will be an easy
case to settle; the victim ends up shortchanged. Mr. Warbelow
suggested that allowing time for the operator and the insurance
companies to settle will get more money to those who deserve it,
rather than the attorneys.
REPRESENTATIVE GARA asked whether there is a significant
difference in premiums for a $300,000 policy and something
Mr. Warbelow considers more adequate.
MR. WARBELOW replied that part of the problem is that the
underwriters won't provide higher limits, period. He cited an
example and said people can barely afford to buy [the minimum].
Saying this is driven by a number of factors, he mentioned the
difficulty of getting the cost of insurance to the point that
people can afford to buy reasonable coverage.
Number 1824
ED GREGOR (ph), AIG Aviation Insurance (ph), echoed the
statements of Mr. Nicolos and Mr. Warbelow; expressed concern
about capacity in the insurance market; and said although
brokers make heroic efforts to make limits as high as possible
on behalf of their clients, insurers sometimes suffer in their
ability to effect good, strong defenses because of the low
limits. "It's a concern for us," he added; "we would prefer to
see higher limits." Applauding the discussion within the
committee about keeping the language "broad yet specific," he
said it needs to be broad enough to prevent creative solutions.
MR. GREGOR noted that in 25 years he has seen interesting
extremes relating to the solicitation of claims. He cited
examples from Louisiana and Mississippi when events involving
chemical plants led to attorneys' signing people up for huge
class action lawsuits. Acknowledging it isn't to that extent in
Alaska, he said there is concern by insurers nonetheless when
solicitation is uninhibited for minor accidents. Offering his
perspective as a claims handler, Mr. Gregor said it upsets him
that he often doesn't have the opportunity to exhibit the good
will that is available and to help carriers assist injured
passengers as quickly as possible, including all-important
immediate financial assistance when breadwinners have been
injured.
REPRESENTATIVE GARA opined that just as an attorney shouldn't be
able to solicit a client within the first 45 days, a defendant
shouldn't be able to get a client to waive the right to pursue
legal action.
MR. GREGOR agreed.
REPRESENTATIVE GARA asked whether the early financial assistance
has strings attached.
MR. GREGOR answered that the federal law requires carriers to
provide immediate financial assistance; it is the practice and
part of the coverage of the air carriers to provide that sort of
assistance up front as well. He specified that there are no
strings attached. Recognizing that these claims for people who
are genuinely injured can be large, he said an immediate payment
of $10,000, $20,000, or $25,000 won't significantly change the
fact that the claim will have to be settled for payment of
additional monies down the road.
Number 2024
PAUL LANDIS, Member, Board of Directors, Alaska Air Carriers
Association, noted that he is senior vice president of Era
Aviation, Inc., but was speaking on behalf of the Alaska Air
Carriers Association, whose executive director and president
were unable to testify. Mr. Landis said the association
certainly understands the sense of entitlement that exists,
particularly now in rural Alaska, where lawyers are making
promises that can't be kept to passengers who listen in a weak
moment.
MR. LANDIS mentioned the air carriers' practice of bringing
passengers to hospitals for an examination following any sort of
incident, and that lawyers are waiting to sign them up on the
spot. He reported that also being heard from the air carriers
is that following turbulence or a hard landing, passengers may
experience soreness that will disappear in 48 hours, but these
people are hooked in with promises of easy cash. He cited the
example of a fear-of-flying lawsuit and out-of-court settlement
following the collapse of nose gear when a plane landed in
Bethel. The effort with HB 549 is to prevent the unsolicited
strong-arming of passengers by lawyers, he said, which drives up
the cost of insurance and, in the long run, hurts the traveling
public. He urged support for HB 549 as written.
Number 2131
MELISSA FOUSE specified that she was speaking on her own behalf
as a survivor and family member of someone who was killed in an
airplane crash, although she is executive director of the Alaska
Academy of Trial Lawyers. She said:
Frankly, I'm a little offended by the testimony of the
airplane people who say, ... "Oh, it's just a bump on
the end of the runway and these lawyers are like
piranhas." My brother was actually killed, and we
didn't have a single lawyer contact us until after the
federal law date - not one single lawyer. I will say
that at the end of that, we did get solicitations, and
that was fine because we wanted to know what to do
next.
MS. FOUSE related her opinion that making this a felony is
absurd, and that it isn't the attorneys who start the cycle;
rather, it is the accident. She asked the committee, when
considering this legislation, to please consider the people who
were hurt or killed.
CHAIR McGUIRE apologized if any comments from the committee were
offensive; she said the intent certainly isn't to minimize the
loss or injury suffered in accidents, and many times recovery is
deserved. She explained that there is a rule of professional
conduct in this same spirit and that this is to get at
[attorneys] who are soliciting passengers inappropriately.
Referring to earlier discussion, she stated the intention of
narrowing this from the federal law on which it is based, to
clarify that it wouldn't exclude legitimate cases where
information is needed.
Number 2321
ROBERT JACOBSEN, President, Wings of Alaska, noted that Wings of
Alaska and Wings Airways are sister companies and indicated they
emplane about 75,000 passengers annually. Speaking in support
of the bill, Mr. Jacobsen said he has been in the business about
25 years and has seen accidents over the years, both "bumps and
bruises" and catastrophic ones. He said:
Honestly, we care deeply about the industry, and this
is an attempt to start to help this hemorrhaging
industry that we've been experiencing for a number of
years. But also, most of my professional colleagues
in this business have a lot of integrity, and we care
deeply about our customers too. Our customers are our
neighbors, and we care about them.
MR. JACOBSEN recalled four instances when there were mishaps but
no serious injuries; he said plaintiff attorneys got hold of his
customers, who weren't cared for in the long run because they
weren't well represented and their attorneys took that "one-
third plus expenses" away from the settlement. He remarked,
"That doesn't make us feel good; ... we'd just as soon more of
it get into the hands of the families or the victims that ...
were part of the incident." He encouraged passage of HB 549 and
consideration of more tort-reform issues.
CHAIR McGUIRE asked whether anyone else wished to testify.
Hearing no response, she then closed public testimony.
TAPE 04-59, SIDE B
Number 2392
REPRESENTATIVE GARA moved to adopt Amendment 1, a handwritten
amendment that read [original punctuation provided]:
Page 1, Line 6
After "attorney"
Delete "or potential party"
Page 1, Line 8
After "accident"
Delete "concerning a potential action"
Insert "for the purpose of offering or discussing
potential representation in an action"
Number 2379
REPRESENTATIVE HOLM objected.
REPRESENTATIVE GARA explained that Amendment 1 does what he and
Ms. Davis had discussed earlier: it limits criminal conduct to
those attorneys who contact a client in the first 45 days
seeking to be hired, and it deletes the language that addresses
"sort of the situations that I think we don't want to address
with this bill."
REPRESENTATIVE HOLM removed his objection.
Number 2350
CHAIR McGUIRE asked whether there was any further objection to
Amendment 1. [No objection was stated, and Amendment 1 was
treated as adopted.]
CHAIR McGUIRE remarked that it's a good amendment and suggested,
"You should contact the federal folks, too, because throughout
their statute it says 'potential action' and 'potential party',
and it is broad."
REPRESENTATIVE GARA replied that he thinks it's trying to
prevent insurance companies from getting people to settle
quickly before they can contact an attorney. He added that it's
beyond the scope of what [HB 549] is intended to address.
REPRESENTATIVE OGG referred to line 6 and asked why "intrastate"
is used, rather than having this also apply to interstate or
international [flights].
CHAIR McGUIRE said it's because federal law would supercede; the
bill can only apply to flights within the state because there's
already a federal law.
Number 2260
MS. DAVIS said that when the federal government chooses to
regulate the interstate aspects of aviation, the state cannot
"step over the top of that," but can legislate relative to
purely intrastate [flights]. She offered her belief that
there'd be a significant "federal preemption problem" if the
bill went beyond intrastate activity. She added that other than
the obvious ones, few flights go directly out of state; if they
do, Alaska's state law would be trumped by federal law as well
as international law.
REPRESENTATIVE OGG asked whether Alaska's law could be stricter
than the federal law.
MS. DAVIS answered that because the federal law resides within
NTSB's body of law, in the aviation and family disaster Act, she
guessed the question would be whether [Alaska's law] could be
more solicitous and helpful to families. She said that it's not
quite like commerce, where there are "overlaying layers of
commerce," since NTSB is "sort of an all-or-none kind of
entity." She went on to say it's possible that [Alaska's law]
could be more restrictive regarding intrastate aspects, and she
offered to look into whether it would doom the bill if it were
expanded to cover interstate [flights].
REPRESENTATIVE OGG said he'd appreciate that.
Number 2149
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
549, Version 23-LS1860\D, Bullock, 4/1/04, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 549(JUD) was
reported from the House Judiciary Standing Committee.
HB 336 - CIVIL DAMAGES FOR UNINSURED DRIVERS
Number 2137
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 336, "An Act limiting recovery of civil damages
by an uninsured driver; and providing for an effective date."
Number 2128
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of
HB 336, explained that the bill has three provisions. It
provides that persons who do not comply with existing motor
vehicle laws may not recover for damages for noneconomic loss
suffered while operating their cars. Second, it provides that
punitive damages are not required to be of the mandated offers
of uninsured/underinsured motorist coverage. Third, it
clarifies that insurance companies are not required to offer
uninsured/underinsured motorist coverage on insurance policies
that provide coverage for auto liability on an excess or
umbrella basis.
REPRESENTATIVE MEYER mentioned that the first section was
brought to his attention by a constituent who asked why his [car
insurance] payments had to be made every six months when his
neighbor did not even have insurance and yet could drive.
Representative Meyer agreed it was not fair, and noted that
other states had passed legislation similar to HB 336 called "no
pay, no play." Driving is a privilege, and unless you pay and
abide by the laws of the state, then you shouldn't be able to
drive," he said. He pointed out that recently California passed
Proposition 213, by a 77 percent vote, even though it was
estimated that 35 percent of the people did not have insurance.
In Alaska it is estimated that between 16-20 percent of drivers
do not have car insurance. He said it is a matter of fairness
to require that everyone have auto insurance in order to be able
to drive in Alaska, and those who opt to break the law should
not have the right to sue for damages. The uninsured motorist
will still be able to recover for economic damages, just not the
punitive - the pain and suffering - damages, he explained.
Number 2006
REPRESENTATIVE MEYER explained that the second part of the bill
has to do with clarifying what insurance companies are required
to offer and what Alaskans are required to obtain as far as car
insurance goes. He added:
The Alaska Supreme Court handed down a decision in
2001 that said that uninsured/underinsured motorist
coverage must mirror a policyholder's liability
coverage. It was interpreted that if there is
coverage for punitive damages under a person's
liability policy, then a person's
uninsured/underinsured motorist coverage must also
have coverage for punitive damages. However, in the
statute there is nothing requiring this. State
statute only requires that financial limits on an
uninsured/underinsured policy match the financial
limits on a liability policy. There's also no
requirement that a regular automobile liability
insurance policy has punitive damage recovery. As you
know, punitive damages are intended to punish or
deter, and it's hard for me to see how an uninsured
motorist is punished when they are seeking
compensation from an insured person who's actually
funding the right for recovery. So, in other words,
you're paying that person to sue you for damages.
REPRESENTATIVE MEYER related that the last part of the bill
clarifies that uninsured/underinsured motorist coverage only has
to be offered on automobile liability policies and not on
insurance policies that provide coverage for automobile
liability under an umbrella basis. The intent is to avoid
repetitive offers; insurance companies don't have to offer that
and people don't have to pay for repetitive offers, he
explained.
REPRESENTATIVE GARA said that Section 3 is a concern because he
has umbrella insurance which allows him to buy up to $1,000,000
of uninsured/underinsured coverage. The insurance company does
not offer that large amount of coverage unless an umbrella
policy is purchased, he related. He noted that his liability
insurance does not provide that coverage, but his umbrella
coverage does. He asked if Section 3 interferes with this type
of umbrella coverage.
REPRESENTATIVE MEYER deferred to the insurance industry speakers
for the answer, but said he thinks it is optional and not a
requirement.
REPRESENTATIVE GARA said it is mandated under current law that
insurance companies have to offer the right to buy up to
$1,000,000 worth of uninsured/underinsured coverage. He said he
is worried that [HB 336] might roll that back.
REPRESENTATIVE MEYER replied that all the bill is trying to do
is avoid repetitive policies.
Number 1849
JOHN L. GEORGE, Lobbyist for Property Casualty Insurers
Association of America - which, he explained, consists of
companies that write about 50 percent of all the automobile
insurance in Alaska - answered Representative Gara's question by
saying that the mandatory offer is under the primary auto
insurance policy and low limits or up to $1,000,000 coverage can
be bought. It is not reduced by not having it under an umbrella
policy, unless it is a policy in excess of $1,000,000, he added.
Number 1797
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 336, labeled 23-LS1254\D, Bullock,
2/23/04. There being no objection, Version D was before the
committee.
REPRESENTATIVE GARA repeated that his insurance company told him
he could not buy $1,000,000 worth of insurance unless he bought
the umbrella policy. He said he does not want to interfere with
the right to buy that policy.
MR. GEORGE replied that he is certain that the mandatory offer
is by the primary carrier and has nothing to do with the excess
policy and suggested that Representative Gara may have been
misinformed or may have misunderstood his options. He offered
to follow up on it.
REPRESENTATIVE GARA said he has been misinformed by his
insurance company before.
MR. GEORGE continued to explain his extensive background with
insurance and said that as director and deputy director of the
insurance division he frequently got calls from consumers who
were upset because other people did not have insurance, causing
their insurance rates to go up if there was an accident. He
noted that there have been many attempts to get people to buy
insurance by mandating it, but it remains a problem with 16-18
percent uninsured drivers. He said there are test questions on
the driver's license exam regarding the requirement to have
insurance, and there are vehicle registration requirements
certifying that the owner has liability insurance, and yet, a
significant portion of drivers lack insurance. As a result
there was a mandated offer of uninsured/underinsured motorist
coverage so people could protect themselves from people who did
not have insurance. He mentioned that there have been a number
of attempts to make people aware that automobile insurance is a
requirement. This bill would restrict a person's ability to
collect the noneconomic damages and would serve as a reminder
and as a penalty for driving without insurance, he concluded.
Number 1583
MR. GEORGE gave an example of some of the problems related to
umbrella policies. Many companies have stopped writing umbrella
policies or have sought other companies that would write
umbrella policies over their own company's policies. He stated
that there are advantages for having the same carrier for
primary and excess policies. It is more efficient and
practical, but, at this point, not possible with some insurance
companies today, he said.
REPRESENTATIVE OGG read on page 2, [lines 10-12], "coverage for
punitive damages that might otherwise be recoverable from an
uninsured or underinsured person is not required under this
paragraph", and asked if someone who is uninsured drove
recklessly and "ran into you, but you had
[uninsured]/underinsured insurance on your policy, basically,
does this paragraph say that you won't be able to collect
punitive damages under that policy?"
MR. GEORGE replied, "You would not collect punitive damages
under your own - your self-procured - uninsured/underinsured
motorist coverage. Yes, that's correct." He explained that the
logic behind that idea is that punitive damages are designed as
a punishment and are extra damages, not for medical or vehicle
or pain and suffering. He asked, "If you're the uninsured
person and I collect punitive damages from my insurance carrier,
and that means I have to pay more for my insurance to cover
that, what punishment is it to you?"
REPRESENTATIVE ANDERSON offered another example. If someone
drives drunk on the wrong side of the road down Egan Drive,
"they're itching for a punitive claim against them, because
that's punishment," if they hit someone who has no insurance.
He asked if the person who was hit could sue for punitive
damages.
MR. GEORGE said a person can always sue. Just because a person
does not have insurance does not mean they don't have assets,
and a judgment and collection may be obtained. But insurance is
the issue, he said, and he maintained that "my insurance
shouldn't have to pay punitive damages for his negligent act,
but they will pay for my car, my medical bills, my pain and
suffering ...."
Number 1323
REPRESENTATIVE GRUENBERG asked if the justification for Section
1 is purely punitive.
MR. GEORGE said no.
REPRESENTATIVE GRUENBERG asked if there is another
justification. He said he thought that the logic is to punish
those who are uninsured by not allowing them to get recompense
for pain and suffering.
MR. GEORGE replied that is correct.
REPRESENTATIVE GRUENBERG asked, "Can you think of any other
logic to support that section? Any other policy basis?"
MR. GEORGE replied that the legislature, in its wisdom,
determined that everyone should have insurance and no one should
drive without insurance. This is a punitive deterrent for the
misbehavior of failing to provide coverage, he said. "I'm
reminded of the Golden Rule - do unto others as you would have
them do unto you. You are required to buy insurance to protect
the other person from your actions. You failed to do that.
Should the other person have to protect you from their actions?"
The other logic is that an invoice can be produced to show the
cost of damage to a car or medical bills or lost wages, but pain
and suffering has no hard number, he concluded.
REPRESENTATIVE GRUENBERG surmised that the real policy behind
this is to eliminate pain and suffering [damage claims].
MR. GEORGE disagreed. He said the real reason for [the bill] is
for it to be a deterrent, to encourage people to buy insurance
so that this would never take effect.
REPRESENTATIVE GRUENBERG said these are really two very
different issues. He repeated that he believes the real policy
driving this bill is the desire to limit pain and suffering as
damages. He said if that is true, "We should talk in frank
terms about the fairness or unfairness of pain and suffering.
The only justification I've heard hear is that it is difficult
to measure in dollars and cents. That's a far cry from saying
it's not fair." He implied that if pain and suffering is
eliminated entirely, it would save clients in the insurance
industry millions of dollars annually. He called it a terrific
windfall for the insurance industry.
MR. GEORGE replied that 20 percent [of drivers] are not paying
insurance premiums.
REPRESENTATIVE GRUENBERG asked about the other 80 percent.
MR. GEORGE said the bill is not designed by the insurance
industry to get out of paying noneconomic awards. He said the
industry supports the bill, but it really is to encourage people
to comply with the law.
Number 1010
REPRESENTATIVE GARA called the bill oddly incongruent and said
it does not seem to address the policy concerns that seem to be
the basis of the bill. The first part of the bill benefits a
bad actor. It says that if a person drinks, drives, and has an
accident with an uninsured motorist, that person does not have
to pay the noneconomic damages. He said he is not sympathetic
to that idea. He asked if he is missing something.
MR. GEORGE replied that the bill is directed at people who are
violating the law by not having insurance. "Had they complied
with the law, under that scenario that you gave, they would be
entitled to collect noneconomic damages," he said.
REPRESENTATIVE GARA said he is being asked to benefit the person
who injured other people and he is not willing to do that, so he
is not supportive of the first part of the bill. The second
part of the bill seems to be just as illogical, he opined. He
asked if Mr. George would agree to say that all insurers would
have to offer uninsured/underinsured coverage. He said he wants
to have the opportunity as a consumer to buy a large amount of
coverage.
MR. GEORGE said it could be called something other than a
punitive damage award. He suggested "compensatory damages or
windfall profit," because it really is not punitive to anyone
else but the person who has to pay for it.
REPRESENTATIVE GARA said one of the recognized purposes of
punitive damages is punishment, but another is the implicit
recognition that compensatory damages never really end up fully
compensating anyone after taxes and attorney's fees, and there
is that aspect in the wording "punitive damages."
REPRESENTATIVE ANDERSON asked if those are Representative Gara's
thoughts or legal standards.
REPRESENTATIVE GARA replied, "In legal discussions." He said it
is really just about what a consumer gets to buy, so he said he
agrees with Mr. George that maybe it shouldn't be mandated.
MR. GEORGE said he believes that [compensatory awards] are not
taxed.
REPRESENTATIVE GARA replied that compensatory and punitive
damages are taxable in a personal injury case. He said there
may be certain classes of cases where they are not taxed.
MR. GEORGE repeated that he believes that they are not taxed.
Number 0656
REPRESENTATIVE ANDERSON said that Representative Gruenberg made
a good point that someone in the Office of the Attorney General
said that the "50 percent rule to the state" applied on punitive
[damages]. He said he would like to hear an opinion of the bill
from the Office of the Attorney General.
MR. GEORGE said, "That is an interesting concept where you're
buying insurance to pay yourself for punitive damages, but half
of it goes to the state."
REPRESENTATIVE HOLM said he understood Mr. George to say:
The qualifications for insurance were not necessarily
in the best interest of all of us, and by us having
mandatory insurance you have to provide it at whatever
cost you can provide it for. But, in general, it
seems to me that it somehow raises the bar, then,
because your exposure is increased as the level of
inexperience or bad driving ... enters into the
equation.
REPRESENTATIVE HOLM said the problem is that just because a
person passes the driver's license test, it does not give
him/her the right to drive. He asked Mr. George for his
thoughts on the matter.
MR. GEORGE replied that the legislative branch has to balance
what's good for the insurance company with what's good for the
public. He said he thinks that the decision of everyone being
insured is good public policy. "The insurance companies would
prefer not to have to offer it," he said. "But, because it is
mandated, there is an assigned risk plan. If no insurance
company wants to write it, then they're assigned and an
insurance company will write it and it's more expensive, but
it's certainly not a money maker."
REPRESENTATIVE OGG asked why "punitive damages" is left out of
Section 1.
MR. GEORGE replied it is not his bill and that he can take some
responsibly for the uninsured motorist additions to the CS, but
Representative Ogg may have to ask the sponsor his intent on
that section.
Number 0395
CHAIR McGUIRE said, "There are noneconomic damages which are
loss of consortium, loss of your ability to hold your child
...."
REPRESENTATIVE GARA said that noneconomic damages are intended
to compensate the person, to make the person whole. They are
not punitive but compensatory, he explained. Punitive damages
are deterrents and punishments, he added.
CHAIR McGUIRE said generally that is true, but "some people
would argue that 'noneconomics' go beyond compensatory."
REPRESENTATIVE OGG said the point of the bill is if someone is a
bad actor, and they have "dirty hands", they are not going to
get the benefits. He asked why an uninsured person does not
lose both noneconomic and punitive damages.
MR. GEORGE deferred to Mr. Lessmeier and to the bill sponsor to
answer that question.
CHAIR McGUIRE stated her intent to finish with the public
testimony and then set the bill aside.
Number 0158
DONNA J. McCREADY, Attorney at Law, Ashburn and Mason, said she
thinks it is great public policy to create incentives for people
to be insured when driving, and that there already exists a
penalty for driving without insurance in that a person could
lose his or her license. However, this bill does not actually
do anything to meet the goal of getting people to drive with
insurance, she opined. She mentioned the Portage Glacier Road
Case where a drunk driver drove his truck into a lake, was able
to get the truck out of the lake, and then hit a vehicle
containing two teenagers and their grandparents head-on. The
grandparents did not have insurance, she noted.
TAPE 04-60, SIDE A
Number 0001
MS. McCREADY continued to say that the two teenagers died and
the grandparents were seriously injured. Under this bill these
people would not be able to recover noneconomic damages for
pain, suffering and loss. The mother of the teens who were
killed could not seek recompense from the drunk driver. She
emphasized that these cases do happen and the bill would affect
these people. She said the bill instead should target the
people who cause accidents who do not have insurance.
REPRESENTATIVE OGG said it appears from the way [HB 336] is
written that the person who is driving without insurance is not
protected, but everyone else in the car is protected.
MS. McCREADY said that is a question she still has. She pointed
out that for children under 18, economic damages are not very
high. She asked for clarification on the issue that
Representative Ogg raised.
Number 0291
MICHAEL J. SCHNEIDER, Attorney at Law, Law Offices of Michael J.
Schneider, PC, said that these issues are extremely complex.
The first part of the bill is a blatant gift to the insurance
industry that cannot accomplish its stated goal, he opined. He
noted that Alaska has a mandatory requirement to have insurance
before one can get a driver's license and if one drives without
insurance and has an accident one will lose that license. He
also said that in the face of those disincentives, one out of
five people is still driving without a [insurance]. He
maintained that this bill will pose no incentive to [uninsured]
drivers who are just "trying to stay even with life" to worry
about damages they might incur. He emphasized that the
insurance company will benefit by this bill.
MR. SCHNEIDER termed the second part of the bill "solutions in
search of a problem." The Alaska Supreme Court has adopted the
mirror image approach in analyzing some insurance questions, so
if an insurance company, an uninsured/underinsured carrier, does
not want to be on the hook for punitive damage exposure, all
they've got to do is carefully write their policy, he stated.
MR. SCHNEIDER addressed the third provision of the bill
regarding umbrella coverage. The insurance industry, in spite
of legislative demands that it offer uninsured limits up to
certain levels, and without regard to the elected liability
level, for years has refused to comply with the law, he related.
He said it is possible that Representative Gara did get the
wrong advice from his carrier because many people do not get the
insurance that they are entitled to. He noted that uninsured
coverage can be waived in writing and said there is nothing
wrong with the Alaska Supreme Court's determination that
uninsured coverage can be attached to an umbrella policy. He
said it is not a problem and there is no need to address it
legislatively.
Number 0818
MICHAEL L. LESSMEIER, Attorney at Law, Lessmeier & Winters,
Lobbyist for State Farm Insurance Company ("State Farm"), said
that when he started doing legislative work in 1983, one of the
most controversial issues was the issue of mandatory automobile
insurance. He relayed that he has worked on every bill related
to the "mandatory automobile insurance scheme" that is in effect
in this state, and he also worked on the connected system set up
for mandated offers of uninsured/underinsured motorist coverage,
which was an idea by the insurance industry in recognition of
the fact that there are going to be people that drive without
insurance. [State Farm] has about 26 percent of the market, he
reported, or 123,511 policies in force. "In spite of what my
colleague Mr. Schneider told you, we think we do a good job of
selling uninsured motorist coverage, [because] 96 percent of our
policyholders have uninsured motorist coverage," he said.
MR. LESSMEIER related that in 1983, there was a bill introduced
by then-Speaker of the House, Joe Hayes, and the concern at that
time was the uninsured motorist population. In the last 20
years there have been numerous changes in legislation and still
16-18 percent of drivers are uninsured, and so one out of every
five or six accidents is going to be uninsured, which is a
significant problem for policyholders. He said that many other
states have addressed this issue. The rationale for the "no
pay, no play" was recently before the New Jersey Supreme Court
in February of 2004. In a couple of sentences the policy is
explained. He read:
The law advances a policy of cost containment by
ensuring that an injured uninsured driver does not
draw on the pool of accident victim insurance funds to
which he did not contribute. The legislation thus
gives the uninsured driver a very powerful incentive
to comply with the compulsory insurance laws, obtain
automobile insurance coverage, or lose the right to
maintain a suit for both economic and noneconomic
injuries.
MR. LESSMEIER continued to say that in New Jersey, if somebody
drives without insurance, they don't get to collect either
economic or noneconomic damages. Referring to Representative
Gruenberg's question whether this bill is purely punitive or
not, Mr. Lessmeier replied that it is not. It is intended to
ensure responsibility and fairness to the 82-84 percent of the
driving public that does pay for [insurance], he concluded.
Number 1098
MR. LESSMEIER said that there were a number of questions raised
about "benefiting a bad actor" and hurting somebody that is
totally innocent. He maintained that somebody that drives
without insurance is not totally innocent. They have a choice
in advance; if they want the protection of the system they need
to contribute to the funding of the system, he said. "That is a
matter of fairness and that is a matter of responsibility," he
added.
MR. LESSMEIER opined that there is nothing in Alaska law that
says the purpose of punitive damages is compensatory.
"Punitive" by its very definition is punishment, and when that
issue goes to the jury, the jury has already decided the issue
of compensatory damages, he explained. He urged the committee
to not get sidetracked by that issue.
CHAIR McGUIRE asked Mr. Lessmeier about the line between
compensatory and punitive damages, such as noneconomic damages.
MR. LESSMEIER replied that he would categorize punitive damages
as noneconomic damages in the context of this bill because they
are not quantifiable.
CHAIR McGUIRE responded, "You're saying that noneconomic
damages, in your opinion, are the same as punitive?"
MR. LESSMEIER replied, "No, what I would say is when we created
the limits for noneconomic damages in the tort reform, clearly
those limits did not include punitive damages. There's no
question about that." He said it depends on how the committee
defines the term noneconomic. "If the committee is concerned
about letting go the person who is the supposed wrong-doer that
commits a bad act, then perhaps you wouldn't want to include
punitive damages within the definition of noneconomic," he
suggested.
CHAIR McGUIRE said it probably relates to the 1997 tort reform
legislation and the way that [insurance companies] write their
policies. She asked if it is the case that noneconomic damages
and punitive damages are lumped together.
Number 1307
MR. LESSMEIER said they are not really covered that way in the
policies. The way the policies are written and the discussion
of concern regarding punitive damages has to do with Section 2
of the bill, he explained. The Alaska Supreme Court adopted the
mirror rule in [State Farm Mutual Automobile Insurance Co. v.
Lawrence]. "If we sell coverage for punitive damages under the
liability portion of the policy, ... it means that we now have
to sell that coverage and include that coverage in the
uninsured/underinsured motorist coverage. And it makes
absolutely no sense for our policyholders to pay a premium so
that they can recover punitive damages. They're not punishing
someone else, because that someone else is not paying those
punitive damages," he said. Furthermore, 50 percent of the
damages must go to the state, he added.
CHAIR McGUIRE asked Mr. Lessmeier if it is his belief that
because of the mirror image rule, without a statutory change
there is no way for State Farm to do what has been suggested
about offering various choices to the consumer.
MR. LESSMEIER replied, "We can't." He pointed out that he has a
choice with two consequences because of what the Alaska Supreme
Court did. The first consequence is "we change our liability
policy, ... we take away the coverage where people may really
need it and they really want to pay for it, just because it
makes another coverage more expensive, where it makes no sense
to have that coverage. So we'd have to take it away from the
liability policy in order to do what Mr. Schneider talked about.
It makes no sense for us to do that."
CHAIR McGUIRE added, "Just to get around it."
MR. LESSMEIER continued, "The problem is ... that people don't
have that choice; they could have the choice by going and
purchasing a policy that doesn't provide it on the liability
side, so it doesn't provide it on the uninsured/underinsured
motorist side, also."
CHAIR McGUIRE summarized her understanding by saying it's unfair
to allow somebody who is breaking the law to avail themselves of
higher privileges.
Number 1505
MR. LESSMEIER responded by saying that for somebody who has not
contributed to the system that everyone else pays for, it's
unfair to allow him/her full participation in that system. He
repeated it is an issue of fairness and responsibility. He
responded to Mr. Schneider's comment that the only people who
would benefit by this are the insurance companies, by saying
that the challenge to the insurance industry has been to make
its products affordable. He continued:
If we look back at our 20-year history - we go back to
1894 - we have decreased rates six times. We have
increased rates a number of time, too, but we do what
we're able to do in terms of the market. We look at
this particular coverage over the last four years; we
have paid out in terms of our expenses and our claim
payments, about $1.70-something for every dollar that
we've take in. We go back over the last 20 years and
we look at what the premium structure has been with
respect to uninsured/underinsured motorist coverage
versus what it's been for bodily injury and property
damage coverage.
Now uninsured/underinsured has increased much more
rapidly and, of course, we've made many, many
significant changes to the law during that period of
time. But, there's a cost. We don't believe it is in
the interest of our policyholders to be funding
punitive damage claims against ourselves. We do not
believe it is necessary to make these mandated offers
on pure excess policies when they are made on the
underlying automobile policy at the time the person
purchases the vehicle and at every single time of
renewal, and they're made in writing. And if they're
not made, there are significant ... consequences.
CHAIR McGUIRE asked if insurance rates will be decreasing.
MR. LESSMEIER replied that there is no way to answer that
question. He referred to the tort reform legislation of 1997
and said there is not a clear answer as to whether it is
constitutional or not. He said HB 336 will work in two
different ways if it is passed. It will be a deterrent and
there will be fewer people on the roads without insurance. He
also predicted that claims will be reduced by people without
insurance, and he said he hopes that will reduce the cost of
premiums.
CHAIR McGUIRE said she doesn't think it will act as a deterrent.
Number 1663
REPRESENTATIVE HOLM presented a hypothetical situation of a
wealthy person who chooses not to purchase insurance. This
action says that the person is electing not to be able to
collect damages because he or she makes plenty of money and is
"self-insured," he said. He asked what is wrong with that
picture.
MR. LESSMEIER said that is a debate that was held back in 1983-
4, and there is a way for a self-insured person to avoid the
mandatory insurance laws.
CHAIR McGUIRE asked how that is done.
MR. LESSMEIER replied that he would have to go back and look at
the statutory scheme to be able to do that.
CHAIR McGUIRE asked Mr. Lessmeier to bring that information
tomorrow.
MR. LESSMEIER related that the policy made back then required
all people who drove to have at least a minimum limit of
liability, "50/100/25." He said that that coverage for most
people has remained relatively affordable. He said a system
cannot be created in Alaska that would allow for the policing of
the self-insured. People are mandated to buy insurance at a
certain level and the insurance companies are mandated to make
the offers summarized on page 2 of the proposed CS. He said it
is not a perfect system, but it is the best system currently
available.
Number 1784
REPRESENTATIVE HOLM said he objected to several things that Mr.
Lessmeier said, such as the implication that people are "guilty"
if they didn't benefit the general public when they choose to
self-insure. He maintained that the public is not hurt by a
wealthy person not carrying insurance. He questioned whether
the legislature should be passing laws to benefit insurance
companies.
MR. LESSMEIER said he did not mean to offend Representative
Holm. He said he didn't think that this bill will benefit the
insurance companies, but the benefit will be passed along. He
said:
I think that if we're going to go back and debate the
issue of mandatory insurance at the very beginning and
try to create a system that would exempt those that
are in your situation, that you described, then we
have to talk about a different system. I applaud
those people who are able to be financially
responsible. Most people can't. I don't know that
we've figured out a way to enforce a system like that.
REPRESENTATIVE HOLM recalled that his father was self-insured
for fire insurance for years because he didn't borrow money from
the bank.
CHAIR McGUIRE said it is a tough debate whether to have
mandatory insurance or not.
Number 1893
REPRESENTATIVE GARA, responding to the earlier discussion of
noneconomic damages such as pain, suffering, loss of enjoyment
of life, stated that those are compensatory, not punitive
damages according to statutory definition.
MR. LESSMEIER replied that the noneconomic damage caps that were
passed were not intended to limit punitive damages. There is a
separate section of that legislation that addresses punitive
damages, he added.
REPRESENTATIVE OGG referred to Section 1 and the New Jersey
Supreme Court saying that no damages are awarded [to uninsured
drivers]. He said he wondered about the justification of
awarding economic damages in Alaska.
MR. LESSMEIER opined that the Alaska Supreme Court would uphold
this section of the bill because it is a legislative policy
choice about where to draw the line. He said he also believes
that it is in the legislature's power to go further with this
legislation in the hope that it might achieve more. He said he
suspects this [bill] comes from what was passed in California.
There are six or seven states that have also done some variation
of this, he added.
REPRESENTATIVE OGG said he does not buy the "deterrent" argument
that much and may be interested in adding a sunset clause of
five or seven years; then, if it doesn't show a measurable
deterrent, maybe that portion is not needed. He said he still
has questions about the section that deals with punitive
damages.
MR. LESSMEIER explained that what the bill basically says is
that "we don't have to." Simply because it is sold in the
liability portion of the policy, does not mean it has to be
included in the uninsured/underinsured portion of the policy.
He opined that there won't be much of a demand for that product
because people won't want to fund the ability to recover
punitive damages against somebody else.
Number 2119
CHAIR McGUIRE asked whether, if one of these cases went to
court, would the fact that somebody is uninsured or underinsured
go toward contributory negligence.
MR. LESSMEIER replied that the only possible way that that could
come into evidence would be on a punitive damage claim. If part
of what they're covered for on the liability portion of the
policy is punitive damages, then there's a pretty good argument
that evidence of amount of insurance would go to the jury, he
opined.
REPRESENTATIVE GARA pointed out that the 1997 tort reform
legislation did go to the Alaska Supreme Court where it was
upheld.
MR. LESSMEIER explained that whenever a piece of legislation
like this is passed, there is a period of time where the
legislation will be challenged, and different interpretations
made. A good example of that is the [State Farm Mutual
Automobile Insurance Co. v. Lawrence] decision. He relayed:
Our product was never priced to cover punitive damages
on uninsured/underinsured motorist coverage. ... Many
of the umbrella policies were not priced to cover
uninsured/underinsured. So we don't know what the
court's going to do, and the example that I gave you
is a valid one because, right now, as you know, the
court upheld the constitutionality of tort reform, but
it did so on a 2-2 decision, and a 2-2 decision is not
precedent.
MR. LESSMEIER noted that it took 10 years for California to
litigate the constitutionality of the MICRA [Medical Injury
Compensation Reform Act] that was passed. It's taken seven
years in Alaska and there is not a definitive answer yet, he
said. He opined that in looking back at the history of
insurance in Alaska, the rates reflect the experience. He said
he would like to think that [Alaska] is a competitive market.
REPRESENTATIVE GARA replied, "I suspect that when you argue
about the Alaska Supreme Court ruling that upheld our 1997 tort
reform [legislation] ... in court, and you're on the defense
side, I suspect that you tell the court that that is a
definitive ruling."
CHAIR McGUIRE relayed that HB 336 [Version D] would be set
aside.
HB 438 - MOVE OVER LAW FOR DRIVERS
Number 2294
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 438, "An Act relating to motorists moving over or
slowing down for emergency vehicles."
Number 2300
REPRESENTATIVE HOLM moved to adopt CSHB 438(STA). There being
no objection, it was so ordered.
REPRESENTATIVE HOLM, sponsor of HB 438, explained that the bill
was brought to him by public safety officers in the state
because of concern about danger. He deferred to Mr. Rudig.
Number 2320
MATTHEW RUDIG, Staff to Representative Jim Holm, Alaska State
Legislature, sponsor, agreed that safety is the goal of the bill
and said moving over and slowing down can save lives. He
reported that 93 law enforcement officers across the country
from 1997 to 2002 were struck and killed by vehicles alongside
of roads; many more were injured, and substantially more
experienced close calls. Although no measure of "move over"
legislation will guarantee complete safety for officers and
other emergency personnel, he said this bill, along with further
public education efforts, can heighten drivers' awareness of the
inherent danger to these men and women who serve the public. He
indicated that at least 38 states have already addressed this
issue.
[An at-ease was called because of a technical difficulty; this
is the end of Tape 04-60.]
TAPE 04-61, SIDE A
Number 0001
CHAIR McGUIRE called the meeting back to order.
MR. RUDIG noted that Allen Storey and Shelley Owens could answer
questions. He closed by saying, "These people fight for our
lives every day, ... and this legislation is just an opportunity
for the legislature to fight for theirs."
Number 0100
ALLEN STOREY, Lieutenant, Central Office, Division of Alaska
State Troopers, Department of Public Safety (DPS), testified in
support of HB 438, saying it's long overdue. He gave real-life
examples involving two of his own patrol cars, the car of his
first patrol sergeant, two troopers in the Palmer region who
were struck recently, and a near miss he'd seen just that
morning. If the bill becomes law, he surmised that [DPS's]
public information office can get the word out through public
service announcements and other efforts so people know of the
requirement, which is to slow down and provide a cushion of
safety to people who are trying to help others in need - not
just troopers and police officers, but also volunteer and
professional firefighters and others taking care of business on
the shoulder of the road.
Number 0239
SHELLEY OWENS, Health Program Manager, Community Health &
Emergency Medical Services, Division of Public Health,
Department of Health and Social Services (DHSS), testified that
the department supports this bill in the hope it will reduce the
incidence of secondary collisions that result from inattentive
and distracted drivers. She provided statistics and further
information as follows:
It is estimated that there are 12,000 emergency
medical vehicle collisions each year, and the U.S.
Fire Administration reports that emergency vehicle
crashes are the second leading cause of death for
firefighters. The International Association of Chiefs
of Police reported that in 1997 nearly 40 percent of
law enforcement officers who died in the line of duty
died in traffic.
And Washington State found that in a seven-year period
over 3,000 shoulder collisions - collisions where a
vehicle was parked on the side of the road - resulted
in 40 deaths and 1,770 injuries. In Florida during a
five-year period, 1996 to 2000, motorists crashed into
working ... law enforcement vehicles that were stopped
along Florida roadways 1,800 times, resulting in five
deaths and over 400 injuries.
In Alaska, in the four-year period from 1998 to 2001,
386 emergency response vehicles were involved in
accidents. Of the 386 crashes, 46 incidents involved
a parked emergency response vehicle. There's also a
statistic from California that ... once there's been
an initial accident, ... the fact that this vehicle is
on the side of the road creates a 600 percent increase
of likelihood of a secondary collision.
MS. OWENS concluded:
Motor vehicle operators are exposed to multiple
sources of distraction including mobile phones,
radios, children, failure to see or hear sirens and
lights, and driver inattention. The department
supports the efforts to reduce the number and severity
of injuries to fire, EMS [emergency medical service],
and law enforcement personnel at emergency scenes.
Number 0390
REPRESENTATIVE GRUENBERG indicated he had a question for someone
from the Criminal Division of the Department of Law, but didn't
see anyone present. Noting that he was searching for statute
related to mental states and the requirements for culpability,
he explained that subsection (a) of the bill requires a person
to move over [or slow to specified speeds], and subsection (b)
makes it a class A misdemeanor if [the behavior] results in
injury. However, it just says "who violates this section" [on
line 14], which he suggested almost makes it a crime of strict
liability. Thus he proposed that the bill should at least say
"negligently or something" because people can go to jail for a
year.
REPRESENTATIVE GARA remarked that "knowing" is important in a
lot of the criminal [statutes], but he can't imagine someone
using the defense of having sped by a car that had flashing
lights without knowing, which should be even worse, perhaps a
felony.
REPRESENTATIVE GRUENBERG read from the statute he'd been looking
for, AS 11.81.610, which stated in part:
(b) Except as provided in AS 11.81.600(b), if a
provision of law defining an offense does not
prescribe a culpable mental state, the culpable mental
state that must be proved with respect to
(1) conduct is "knowingly"; and
(2) a circumstance or a result is "recklessly."
REPRESENTATIVE GRUENBERG said he thought that probably would
apply, but wasn't sure and was simply drawing it to the
committee's attention. He added that he was satisfied with the
language now because he believed AS 11.81.610 "would be what
would be read into the statute if we leave it alone."
CHAIR McGUIRE asked whether anyone else wished to testify. She
then closed public testimony.
Number 0619
REPRESENTATIVE HOLM moved to adopt Amendment 1, labeled 23-
LS1602\D.1, Luckhaupt, 4/2/04, which read:
Page 1, lines 11 - 13:
Delete all material.
Insert "fighter, shall slow to a reasonable and
prudent speed below the speed limit."
CHAIR McGUIRE asked whether there were any objections to
Amendment 1. There being none, Amendment 1 was adopted.
REPRESENTATIVE GARA remarked that Amendment 1 was good and
clarified a lot for him, but requested clarification. He said
he understands the circumstance when a trooper or ambulance is
dealing with an accident or injured person. But can someone
still drive by at 55 miles an hour in the right lane of the
highway if a trooper has pulled a driver over for speeding and
they're in the "breakdown" lane? Would that be a safe and
prudent speed under the circumstances, or would it now be a
crime? he asked.
REPRESENTATIVE HOLM answered:
It's my understanding ... that the reason that we
offered the amendment was so that it would be
reasonable and prudent speed. And that means it would
have to be something defensible, at some point in
time, if there was a problem. And I would assume, if
someone was going 55 miles an hour past ... a problem
on the side of the road, he would miss the other
person. If he didn't, I suppose it would be no
different than any other case where you are negligent
or reckless in your driving.
CHAIR McGUIRE paraphrased subsection (a)(1), which talks about
safely vacating the lane closest to the emergency, fire, or law
enforcement vehicle when there are two or more lanes traveling
in the same direction.
REPRESENTATIVE GARA noted that many people stay in the right
lane when they see a trooper pull someone over for speeding, but
said he thinks that would be OK with Amendment 1 because it says
"or if you are driving safely under the circumstances."
CHAIR McGUIRE concurred, mentioning "reasonable and prudent".
Number 0754
CHAIR McGUIRE asked Representative Holm whether he'd thought
about adding an "emergency signal override" and whether there
already was a House version of Senator Therriault's [legislation
related to that].
REPRESENTATIVE GARA said, "Let's get that in there too."
REPRESENTATIVE HOLM answered that he hadn't thought about it.
REPRESENTATIVE GRUENBERG reported that he'd talked to Senator
Therriault about that bill because the same firefighters who
were interested in the carbon monoxide and arson legislation
also considered that a priority. He recalled that the feeling
expressed was that there was no need for House companion
legislation because the Senate version was moving.
CHAIR McGUIRE remarked, "Fair enough - just an idea."
REPRESENTATIVE GRUENBERG said it's a good idea.
Number 0816
REPRESENTATIVE HOLM moved to report CSHB 438(STA), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
438(JUD) was reported from the House Judiciary Standing
Committee.
HB 430 - EMPLOYEES UNDER 21 AT LICENSED PREMISES
[Contains discussion of HB 367]
Number 0837
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 430, "An Act relating to employees under 21 years
of age in the premises of hotels, restaurants, and eating places
that are licensed to sell, serve, deliver, or dispense alcoholic
beverages."
Number 0848
REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, sponsor,
acknowledged her staff, Aurora Hauke, for doing the majority of
work on the bill. Representative Kerttula explained that a
constituent had wanted to hire an 18-year-old who was a foster
child but technically was out of foster care because he was
considered an adult under that system; current law, however,
requires a parent's signature. Thus HB 430 solves a small
problem for 18-year-olds who want to work in a hotel or
restaurant where alcohol is served, although, of course, such a
person cannot serve, touch, or sell the alcohol. Representative
Kerttula noted that the same situation occurs for 18-year-olds
who travel to Alaska. She reported that the Alcoholic Beverage
Control Board ("ABC Board") supports the legislation and that
Mothers Against Drunk Driving (MADD) has no opposition.
REPRESENTATIVE GARA remarked that he thinks the bill is fine,
but raises the question of whether 16- or 17-year-olds, if
[HB 367, which he and Chair McGuire sponsored] doesn't pass,
would be allowed to work at The [Great Alaskan] Bush Company,
for example, if it serves fries. He suggested perhaps it's
incumbent on [him and Chair McGuire] to deal with it in the
other bill.
REPRESENTATIVE KERTTULA deferred to Ms. Hauke.
Number 1004
AURORA HAUKE, Staff to Representative Beth Kerttula, Alaska
State Legislature, sponsor, voiced her belief that this would
only apply to places that have "a certain type of license to
sell alcohol, which involves that most of the business does not
come from the alcohol." She said she couldn't remember the
exact name of the license, but it's a different category.
AN UNIDENTIFIED MEMBER mentioned "restaurant."
REPRESENTATIVE KERTTULA said she believes that's right.
Furthermore, 16- and 17-year-olds still have to get permission.
This just covers 18-year-olds; they've reached the age of
majority but still need the signature currently, although that
might be impossible for someone from out of state or who has
been a foster child. She pointed out that 19-year-olds already
can do it on their own.
CHAIR McGUIRE asked Representative Kerttula whether she'd looked
at a "bypass" through the Department of Labor [& Workforce
Development (DLWD)] because of the foster-child status, rather
than lowering the age limit.
REPRESENTATIVE KERTTULA said her office had worked on this a
couple of years with DLWD and the ABC Board; because of the
"morass of statutes that are quite circular," it was decided
that a statutory change was needed. She added, "They wanted to
do it; if they could've, they would've."
REPRESENTATIVE SAMUELS recalled that when a smoking ordinance
passed in Anchorage, distinctions were made via the licensing
mechanism. Much of the difference between a particular bar that
sells food and a particular restaurant that sells alcohol,
although very similar, was based on the age of those who could
bus tables. Thus there'd been a lot of contention. He
suggested this bill probably wouldn't impact that situation, but
said it certainly comes to mind.
REPRESENTATIVE KERTTULA agreed it probably wouldn't, because 18-
year-olds can work in both sets of establishments now with
parental permission; all this bill does is remove that one
requirement [of permission]. She offered to check it out,
however, and provide that information.
REPRESENTATIVE SAMUELS said he'd like to know later and didn't
want to hold the bill up. He mentioned a deal on the assembly
and that it was an odd choice. He recalled a line being drawn
at age 21, but said he didn't know the details.
REPRESENTATIVE KERTTULA pointed out that someone must be 21
years old in order to serve alcohol or sell it, which might have
been the distinguishing factor.
CHAIR McGUIRE asked whether anyone else wished to testify.
REPRESENTATIVE KERTTULA noted that the ABC Board was unavailable
to testify but supported the legislation.
Number 1245
REPRESENTATIVE GRUENBERG moved [to report HB 430 out of
committee with individual recommendations and the accompanying
zero fiscal note]. There being no objection, HB 430 was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 4:35 p.m. to 4:40 p.m.
HB 275 - VETERINARIANS AND ANIMALS
Number 1303
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 275, "An Act relating to veterinarians and
animals." [Before the committee was CSHB 275(L&C).]
Number 1333
ELISE HSIEH, Assistant Attorney General, Environmental Section,
Civil Division (Anchorage), Department of Law (DOL), relayed
that she has sent the committee, via e-mail, a list of what she
termed friendly, suggested amendments to CSHB 275(L&C).
Referring to page 1, line 6 - proposed AS 03.55.100(a) - she
suggested that the word "include" be changed to "includes".
Referring to page 1, line 8, - proposed AS 03.55.100(a)(1) - she
suggested that the word "daily" be deleted because it could [be
interpreted to mean] providing potable water once a day, which,
she opined, is probably not sufficient. Referring to page 1,
lines 10-12 - proposed AS 03.55.100(a)(2) - she suggested that
the language be changed to read: "(2) shelter; indoor shelter
must be maintained at a temperature compatible with the good
health of the animal; outdoor shelter must". She opined that
the latter change will clean up the introductory phraseology [of
paragraph (2)], characterizing the current wording as being very
awkward.
MS. HSIEH, referring to page 2, line 9 - proposed AS
03.55.100(a)(5) - suggested adding the words "for the health and
safety of the animals" after "standards"; this will clarify the
standards expected from the state veterinarian. Referring to
page 2, lines 10-14 - proposed AS 03.55.100(b) - she suggested
adding a sentence, "In the event of disagreement under this
paragraph, the State Veterinarian will provide the professional
opinion needed under this paragraph."; this will clarify that
the state veterinarian will be the final arbiter of any
disagreement between veterinarians making determinations under
paragraph (b). Referring to proposed AS 03.55.100, she
suggested adding language in a new subsection (c) giving the
Department of Environmental Conservation (DEC) the authority to
promulgate regulations regarding sufficiency of care under
proposed AS 03.55.100(b); the language could read, "(c) The
department of environmental conservation may adopt regulations
to implement this section." She noted that the latter suggested
change was recommended by Debra Behr of the Department of law.
Number 1504
MS. HSIEH, referring to page 2, line 19 - proposed AS
03.55.110(a) - suggested deleting, "on which it wishes to take
action", because the discretion to enforce against animal
abusers should be with the Department of Public Safety (DPS)
rather than with an unnamed, possibly private, organization that
may or may not wish to act. Referring to page 3, lines 3-4 -
proposed AS 03.55.120(b) - and noting that custodians of abused
animals may be unwilling to have their location known, she
suggested deleting the words, "and under whose custody the
animal is to be sheltered and cared for", and inserting instead
the words, "and a reference to their right to petition the court
under AS 03.55.130", which would be more helpful to owners who
seek the return of their animals.
MS. HSIEH, referring to page 3, line 10 - proposed AS
03.55.120(d) - and remarking that, "every reasonable effort",
connotes something that may be unending, suggested replacing
"every" with "a"; the language would then read, "shall make a
reasonable effort to locate the owner". Referring to page 3,
line 24 - proposed AS 03.55.130(c) - she suggested, for clarity,
replacing "warranted by" with "reasonable under"; she remarked
that the word "warranted" could, in some circumstances, be more
ambiguous than reference to a "reasonable" standard. Referring
to page 4, line 30 - proposed AS 11.61.138(a)(6) - she suggested
deleting the words, "a herd, collection, or kennel [of]",
opining that that language is unnecessary and complicates
enforcement.
MS. HSIEH, referring to page 5, line 2 - proposed AS
11.61.138(a)(7) - suggested using language that would be more
specific than, "with elements similar to a crime under this
section". Referring to page 5, lines 4-5 - proposed AS
11.61.138(b) - and remarking that that language is very awkward,
she suggested changing it to read, "Each animal that is subject
to cruelty to animals under (a)(1)-(5) and (7) of this section
shall constitute a separate offense." In conclusion, Ms. Hsieh
opined that these suggested "friendly" amendments will make HB
275 stronger and easier to enforce.
CHAIR McGUIRE mentioned that the committee would address the
DOL's suggested changes at the bill's next hearing.
Number 1655
TIM COLBATH, Founder, Alaska's Extended Life Animal Sanctuary,
characterizing HB 275 as a major step in the right direction,
simply offered his organization's support for the bill.
Number 1687
ALLEN STOREY, Lieutenant, Central Office, Division of Alaska
State Troopers, Department of Public Safety (DPS), indicated
that the DPS is in support of HB 275, and said he agrees with
Ms. Hsieh's points, in particular the point about it being a bad
idea to disclose to owners the location of their animals. He
added, "I don't think it will be a burden for [law] enforcement
officers simply to refer people to the statute or the courts so
they can petition for return of their animals." He noted that
law enforcement officers see a lot of cases of animal abuse,
adding, "we've seen some ugly things." In response to comments,
he said he agrees that there is a significant link between
cruelty to animals and other crimes of violence; law enforcement
officers and teachers are trained to look for cruelty to animals
in juvenile behavior because such may indicate abnormal
personality traits.
Number 1759
CHRISTINE HEINTZ, after noting that she volunteers at Alaska
Equine Rescue (AER) and that she has taken in unwanted and
abused animals, mainly horses, on her own for over 20 years,
said simply that she is in total support of HB 275.
Number 1797
BARBARA BRINK, Director, Central Office, Public Defender Agency
(PDA), Department of Administration (DOA), remarked that HB 275
proposes a huge change to current law, and indicated that she
wanted the committee to be aware of the possible ramifications.
She went on to say:
My first question has to do with the amendment
suggested by [Ms. Hsieh regarding] page 2,
[subsection] (b), [lines 10-14]. Somehow this kind
of, I think, muddies the water as to who makes these
determinations of sufficiencies through water,
shelter, space, et cetera because, frankly, in making
this a class A misdemeanor offense, those
determinations are going to have to be made by a jury.
So perhaps we should put some limiting language in
that section - [which] limits the state veterinarian
and the veterinarians to providing opinions with
[regard] to the sufficiency of evidence - to just
simply engage in a prosecution.
My next concern is, I just want to emphasize [that]
currently, the law requires that a person knowingly
inflict severe physical pain or prolonged suffering on
an animal, or, with criminal negligence, they fail to
care for animal and cause death, serious physical
pain, or prolonged suffering, or that they kill ... an
animal by using a decompression chamber. So
everything in addition to that - [proposed] paragraphs
[(3)-(7)] on page 4, ... [and proposed AS
11.61.140(a)(1)-(4)] - ... are all things that are not
currently crimes and will be crimes under this new
bill. ...
And frankly, when we prosecute ... an assault against
a person, we require that that person either be placed
in fear of serious physical injury or that they
actually suffered a physical injury, which is any pain
or impairment. And here we're providing [that] if you
recklessly fail to observe minimum standards of care
for your pets, even if there is no injury whatsoever,
you can be prosecuted and convicted under this
section. So ... the broadness of this bill is rather
enormous and, while I can't predict with accuracy
exactly how many dollars it's going to cost the state
and in particular my agency, I can promise you that
this will be costly.
MS. BRINK, in response to a question, noted that proposed AS
11.61.138(a)(5) simply says in part, "owns or is responsible for
the care of an animal and recklessly fails to provide the
minimum standards of care", and thus doesn't contain a damage
element; the behavior could have had no deleterious effect on an
animal and yet a person could still be prosecuted and convicted.
Number 1971
SHARALYN WRIGHT, Staff to Representative Mike Chenault, Alaska
State Legislature, sponsor, suggested to Ms. Brink that she
contact the sponsor to discuss the PDA's concerns.
MS. BRINK said she would do so.
Number 1984
ETHEL CHRISTENSEN, Executive Director, Alaska Society for the
Prevention of Cruelty to Animals (SPCA), relayed that she has
sent the committee some written comments, and offered her belief
that mandatory jail time should be imposed for heinous crimes
involving animal cruelty, and that drug and mental health
counseling should be required for all other cases involving
animal cruelty. She listed examples of cases that she
characterized as heinous. She, too, remarked that people who
are cruel to animals are also cruel to people, and noted that
examples of such were relayed to her at a conference she
attended in Seattle several years ago. In conclusion, she said
[the bill] is long over due.
CHAIR McGUIRE thanked Ms. Christensen for her work with the
Alaska SPCA.
Number 2084
SALLY CLAMPITT, President, Alaska Equine Rescue (AER), said she
supports HB 275. She mentioned some of the animals the AER
currently has in protective custody, and relayed that groups
like the AER are willing to take on the expense and burden of
providing the legislature with whatever support it needs [to
pass HB 275]. She said she sees HB 275 as having many
provisions that will make "the procedure" a whole lot easier,
efficient, and faster, and hopes that the bill will result in
more prosecutions. Current state law, as currently enforced, is
a green light for cruelty and abuse, she opined, adding that
cruelty to animals is "the unwanted child" of the judicial
system and takes a back seat to many other issues. She went on
to say:
I don't believe that our organization or any other
animal welfare group subscribes to putting animals
before people. Nevertheless, to ignore the really
ugly, ugly situations that go on out there would be
very remiss ... as a moral responsibility.
MS. CLAMPITT offered to share the details of cases that have
occurred, reiterated that she supports HB 275, and urged the
committee to make it as tough as possible. Characterizing
current statutory language as vague, hard to enforce, and hard
to prosecute under, she indicated that she would like to see the
minimum standards of animal care left in the bill, as well as
the new references to the behaviors that would become crimes.
In conclusion she opined that HB 275 would get the job done, and
asked the committee to support it.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 275 and indicated that
the bill would be held over.
ADJOURNMENT
Number 2251
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:04 p.m.
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