Legislature(1995 - 1996)

04/12/1995 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                         April 12, 1995                                        
                           1:40 p.m.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 ALASKA MENTAL HEALTH TRUST AUTHORITY BOARD OF TRUSTEES CONFIRMATION           
 HEARINGS:  Kay Burrows, Tom Hawkins, John Malone, Nelson Page, John           
 Pugh, Evelyn Tucker, Phil Younker, Jr.                                        
                                                                               
 VIOLENT CRIMES COMPENSATION BOARD CONFIRMATION HEARING:  Alison A.            
 Lauber, M.D.                                                                  
                                                                               
 SENATE BILL NO. 105                                                           
 "An Act relating to a requirement that a parent, guardian, or                 
 custodian consent before a minor receives an abortion; establishing           
 a judicial bypass procedure by which a minor may petition a court             
 for authorization to consent to an abortion without consent of a              
 parent, guardian, or custodian; amending the definition of                    
 `abortion'; and amending Alaska Rules of Civil Procedure 40, 53,              
 and 79; Alaska Rules of Appellate Procedure 204, 210, 212, 213,               
 508, and 512.5; and Alaska Administrative Rule 9."                            
                                                                               
 CS FOR SENATE BILL NO. 95(L&C)                                                
 "An Act relating to automobile liability insurance for uninsured or           
 underinsured motor vehicles; and providing for an effective date."            
                                                                               
 CS FOR HOUSE BILL NO. 115(JUD) am                                             
 "An Act relating to settlement and payment of claims for overtime             
 compensation claims and to liquidated damages and attorney fees for           
 overtime compensation claims."                                                
                                                                               
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
  SB 105 - See Health, Education & Social Services minutes dated               
          3/20/95 and 3/22/95 and Judiciary minutes dated 4/10/95.             
                                                                               
 SB 95 - See Labor and Commerce minutes dated 2/28/95, 3/21/95, and            
     3/28/95.                                                                  
                                                                               
 HB 115 - No previous Senate action.                                           
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 John F. Malone                                                                
 P.O. Box 1032                                                                 
 Bethel, AK  99559                                                             
                                                                               
 Kay Burrows                                                                   
 2711 W. 84th Ave.                                                             
 Anchorage, AK 99502                                                           
                                                                               
 Tom Hawkins                                                                   
 1820 East 24th Ave.                                                           
 Anchorage, AK  99508                                                          
                                                                               
 Nelson Page                                                                   
 810 "N" Street                                                                
 Anchorage, AK  99501                                                          
                                                                               
 Phil Younker, Jr.                                                             
 Phil A. Younker & Associates, Ltd.                                            
 121 Spruce Avenue                                                             
 Fairbanks, AK  99709-4150                                                     
                                                                               
 John Pugh                                                                     
 1011 D Street                                                                 
 Juneau, Alaska  99801                                                         
                                                                               
 Evelyn Tucker                                                                 
 Anchorage, AK                                                                 
                                                                               
 Jean Pechianault                                                              
 Kodiak Alliance for the Mentally Ill                                          
 Kodiak, Alaska                                                                
  POSITION STATEMENT:  Commented on Mental Health Authority App't.             
                                                                               
 Frances Kater                                                                 
 Kodiak, Alaska                                                                
  POSITION STATEMENT:  Commented on Mental Health Authority                    
                                                                               
 Henrietta Nugen                                                               
 Advisory Council on Alcohol and Drug Abuse                                    
 Mat-Su                                                                        
    POSITION STATEMENT:  Commented on Mental Health Authority                  
                                                                               
 Nancy Odem                                                                    
 Anchorage, AK                                                                 
  POSITION STATEMENT:  Supports CSSB 105 (JUD)                                 
                                                                               
 Peggy Seeley                                                                  
 Anchorage, AK                                                                 
  POSITION STATEMENT:  Supports CSSB 105 (JUD)                                 
                                                                               
 Pam Neal, President                                                           
 Alaska State Chamber of Commerce                                              
 217 Second St.                                                                
 Juneau, AK  99801                                                             
  POSITION STATEMENT:  Supports CSHB 115 (JUD)am                               
                                                                               
 C.J. Zane                                                                     
 9826 Atka Circle                                                              
 Eagle River, AK  99577                                                        
  POSITION STATEMENT:  Supports CSHB 115 (JUD)am                               
                                                                               
 Sherman Ernouf                                                                
 Legislative Aide                                                              
 Alaska State Legislature                                                      
 Juneau, Alaska  99811-1182                                                    
  POSITION STATEMENT:  Testified on CSSB 95 (L&C)                              
                                                                               
 Dennis Brown                                                                  
 Alaska Independent Insurance Agents and Brokers                               
  POSITION STATEMENT:  Commented on CSSB 95 (L&C)                              
                                                                               
 Don Koch, Chief                                                               
 Marketing Surveillance                                                        
 Division of Insurance                                                         
 Dept. of Commerce & Economic Development                                      
 P.O. Box 110805                                                               
 Juneau, Alaska  99811-0805                                                    
  POSITION STATEMENT:  Commented on CSSB 95 (L&C)                              
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-21, SIDE A                                                            
 Number 001                                                                    
                                                                               
  CHAIRMAN ROBIN TAYLOR  announced a quorum was not present to call            
 the meeting to order, but testimony on the confirmation hearings              
 and scheduled bills would be taken.   The first order of business             
 was the confirmation of Alison Lauber, M.D., to the Violent Crimes            
 Compensation Board.                                                           
                                                                               
 DR. LAUBER gave a brief introductory statement to committee                   
 members.  She is a family practice physician, and the director of             
 the Bethel Family Clinic.  In her experience as a physician since             
 1979, she has been involved in many rape and domestic violence                
 cases and would like to serve on the board to see that victims of             
 violent crimes get adequately compensated, especially for                     
 counseling and family support services.                                       
                                                                               
 There being no questions for Dr. Lauber, SENATOR TAYLOR commended             
 Dr. Lauber for her willingness to serve on the board, and thanked             
 her for her statement.                                                        
                                                                               
 Number 067                                                                    
                                                                               
     ALASKA MENTAL HEALTH AUTHORITY BOARD OF TRUSTEES                     
                                                                               
 JOHN MALONE, a Bethel resident since 1967, stated he has been                 
 involved with mental health issues since the middle 1960's, and the           
 settlement issue since its inception.  SENATOR TAYLOR asked Mr.               
 Malone what his attitude is toward the management of the trust                
 properties.  MR. MALONE replied it is a fiduciary issue; management           
 should be focussed in the best and first interest of the                      
 beneficiaries.                                                                
                                                                               
 Number 090                                                                    
                                                                               
 SENATOR GREEN asked Mr. Malone what his idea of the role of the               
 Authority is.  MR. MALONE stated the primary, or eventual, role of            
 the Authority is going to be help the state to facilitate a more              
 comprehensive program of delivery services, similar to what                   
 Congress had intended with the establishment of the Trust in 1956.            
 That is a process the trustees are presently reviewing to devise a            
 workplan.  The most significant role will be to assist the                    
 administration and the Legislature and to deliver an integrated and           
 comprehensive program.                                                        
                                                                               
 Number 120                                                                    
                                                                               
 KAY BURROWS stated she is a 19 year resident who has worked in                
 health care services most of that time, on behalf of all four                 
 beneficiary groups.  She is looking forward to the fiduciary                  
 responsibility of the trust properties and developing a                       
 comprehensive integrated program of services.  Her specific                   
 interest is in more effective and efficient use of resources for              
 the beneficiary group and state.                                              
                                                                               
 SENATOR GREEN asked what meaningful impacts Ms. Burrows foresees              
 the Authority having on establishing an income stream and programs.           
 MS. BURROWS responded the Authority has just begun to address those           
 issues, but she hopes there will be less duplication of service               
 delivery and use of all trust properties and resources to do things           
 differently on behalf of the beneficiaries; to use seed money to              
 try new approaches.  SENATOR GREEN asked if Ms. Burrows had a firm            
 date.  MS. BURROWS answered she does not; the Authority has just              
 begun to understand what the trust properties are and what kind of            
 planning needs to be done.                                                    
                                                                               
 SENATOR TAYLOR asked Ms. Burrows if she understood Mr. Malone's               
 comment about the fiduciary responsibilities of the board members.            
 MS. BURROWS replied she did, and added the board had that                     
 discussion over the last weekend and is clearly committed to that.            
 SENATOR TAYLOR referred to Ms. Burrows statement about using the              
 words "for the benefit of the beneficiaries and the state" in the             
 management policies the Authority might adopt for the property.  He           
 noted the Authority's role is to manage those properties for the              
 benefit of those beneficiaries and not the State of Alaska.  MS.              
 BURROWS clarified when she used the term "state" she was referring            
 to the beneficiaries of the State of Alaska.                                  
                                                                               
 Number 187                                                                    
                                                                               
 TOM HAWKINS, a 23 year resident with a background in public and               
 private sector natural resource management, stated he brings land             
 and money management experience to the Authority.  He stated he is            
 learning about the variety of program responsibilities that the               
 comprehensive integrated mental health plan entails.  He commented            
 how a society deals with their mental health beneficiaries makes a            
 strong statement about the quality of that society, therefore he is           
 pleased to have the opportunity to serve on the Authority Board.              
                                                                               
 SENATOR GREEN noted each member brings different qualifications to            
 the Authority.  She asked Mr. Hawkins if he believes those                    
 qualifications are complementary to each other.  MR. HAWKINS                  
 replied affirmatively, and added the group is compatible, respects            
 each others' particular expertise, and will benefit from each                 
 others' perspectives.  SENATOR GREEN questioned whether Mr. Hawkins           
 feels the Authority will be getting the assistance it needs from              
 the Department of Natural Resources (DNR) and the Administration.             
 MR. HAWKINS replied he feels positively about interactions with               
 DNR; it has staff in a Mental Health Trust unit which has actually            
 doubled its income in the few short months of operation.  He added            
 a variety of departments have given short presentations to the                
 Authority, and all seem dedicated to helping the Authority meet its           
 needs, and in soliciting advice from the Authority in what they see           
 as a challenging task.                                                        
                                                                               
 Number 245                                                                    
                                                                               
 SENATOR GREEN asked whether Mr. Hawkins feels the Authority will be           
 directing requests, etc. to DNR, or vice versa.  MR. HAWKINS stated           
 DNR is more familiar with the land portfolio and the trust, but has           
 been very solicitous of the Authority's views.  As DNR has                    
 discussed rights-of-way, fair market value, and timber sales, it              
 has been very interested in the philosophies of the Trust                     
 Authority.  He assumes over the next few months the Authority will            
 devise a policy for DNR to operate within.  During the first                  
 meeting, the focus was on various levels of decisions DNR might               
 make, which will require Authority approval and/or notification.              
 He believed DNR recognizes the rules of the road will be set by the           
 Authority.  SENATOR GREEN stated that is an important posture to              
 maintain.                                                                     
                                                                               
 Number 272                                                                    
                                                                               
 SENATOR TAYLOR conjectured the broad policy calls made by the                 
 Authority would come over time, however he expressed concern about            
 the need for immediate review of ongoing access problems created by           
 the checkerboard pattern of land.  MR. HAWKINS replied the backlog            
 is a concern of the Authority as well as DNR, and at the last                 
 session, temporary employees were being sought by DNR to reduce               
 that backlog.  There has been a land freeze for a decade, and                 
 although most of the problems are small, they have magnified as               
 they incubated for a decade.  Everyone is mindful of the need to              
 resolve those problems quickly.                                               
                                                                               
 Number 300                                                                    
                                                                               
 NELSON PAGE, an attorney who has served on the Mental Health Board            
 for four years while the settlement issue was being negotiated,               
 stated the Authority discussed many of the policy issues raised by            
 the committee.  The Authority discussed goals for the Trust and               
 adopted a policy to preserve and enhance the corpus of the Trust to           
 ensure it is there for the beneficiaries in perpetuity.  He                   
 interprets that to mean inflation proofing the cash corpus of the             
 Trust.  He noted opportunities provided by the checkerboard pattern           
 of land exist to enhance the economic value of those lands over               
 time.  The Authority also adopted a goal that will attempt to                 
 maximize the funds available on a long term, sustained basis for              
 the beneficiaries of the Trust.  He added the Authority will do               
 what it can, but that will not take the place of legislative                  
 funding for mental health programs.                                           
                                                                               
 Number 332                                                                    
                                                                               
 SENATOR GREEN expressed concern about staff having more control               
 than the boards they work for since the board only meets                      
 periodically.  She asked Mr. Page if the Authority has taken steps            
 to ensure that staff will work as assistants and not policy makers.           
 MR. PAGE replied that he could not say steps have been taken yet,             
 but the appointees to the Authority all have specialized                      
 backgrounds and are independent advisors.                                     
                                                                               
 SENATOR TAYLOR stated he has full faith the board will provide                
 strong and independent advice.  He looks forward to board review of           
 the operating budgets for mental health programs statewide, and               
 advising the Legislature on critical and controversial subjects.              
 such as Harborview, API, and cost-efficiency.  He added he hopes              
 the board will provide innovative solutions and retain its                    
 independence.                                                                 
                                                                               
 Number 374                                                                    
                                                                               
 EVELYN TUCKER, an Athabascan and Aleut Native, discussed her                  
 interest in mental health issues.  She originally became involved             
 because of her concern about the high rate of suicides in rural               
 villages many years ago.  She looked into the Mental Health Trust             
 to see if there were resources that could be directed to deal with            
 the suicide problem.  She then applied for a seat on the Mental               
 Health Board and served two terms as chair.  She noted she sees all           
 appointees as having consistent views with committee members                  
 regarding the emphasis on the fiduciary responsibilities being for            
 the benefit of beneficiaries.  She appreciated Senator Green's                
 concern about staff taking over the policy making duties of a                 
 board.                                                                        
                                                                               
 Number 404                                                                    
                                                                               
 JOHN PUGH, a 25 year Alaska resident, stated he came to Alaska as             
 a psychiatric social worker in the Air Force and served for four              
 and one-half years in both inpatient and outpatient services.  He             
 continued a long career in health and social services, working at             
 McLaughlin Youth Center for five years and in various positions at            
 the Dept. of Health and Social Services (DHSS).  He stated he has             
 a strong background in delivery services and a strong commitment to           
 delivering quality services throughout Alaska for individuals who             
 need mental health services.  He served on the AHFC board several             
 years ago and brings some background in the management of large               
 sums of money to the Authority.  He is presently working with Phil            
 Younkers developing the RSA with the Permanent Fund Corporation for           
 the management of the $200 million cash Trust.  They plan to                  
 transfer those funds on July 1, to coincide with the fiscal year.             
 He stated the fiduciary responsibility of the Authority needs to              
 focus on handling the Trust as a beneficiary one, meaning that both           
 land and cash management strategies need to be designed to maximize           
 the trust for the beneficiaries.  He complimented the director of             
 DNR's Mental Health Lands Unit for his expertise and assistance.              
                                                                               
 Number 453                                                                    
                                                                               
 SENATOR GREEN questioned how much time Mr. Pugh sees the process              
 taking.  MR. PUGH answered the Authority has met twice this month,            
 and plans to continue that schedule for the short term to get up              
 and running.  He stated the Authority has no staff at this time,              
 and has to establish policies and procedures, as well as policy.              
 The Authority has requested that the top two staff positions be               
 exempt, and is working with the Division of Personnel to classify             
 all other positions.  The Authority will hire all personnel.                  
                                                                               
 Number 484                                                                    
                                                                               
 SENATOR TAYLOR commented on Mr. Pugh's academic and life experience           
 with mental health management as Commissioner for two years, and              
 deputy commissioner, and a lengthy involvement politically.  He               
 asked Mr. Pugh how he would respond to a situation in which the               
 Authority's policy decisions and direction might differ from the              
 Administration's, and whether he could continue to act in the best            
 interest of the Trust from the fiduciary perspective.  MR. PUGH               
 responded the statute is clear about the Authority's                          
 responsibilities, and it is incumbent on board members to reiterate           
 that to the Governor and people within the bureaucracy.  He added             
 that as commissioner, he felt he had constitutional, statutory                
 responsibilities that superseded his responsibility to the                    
 Governor.                                                                     
                                                                               
 Number 506                                                                    
                                                                               
 SENATOR GREEN discussed a worse-case scenario Mr. Pugh might find             
 himself in with DNR in which there is no cooperation with DNR.  MR.           
 PUGH replied the Authority is statutorily required to contract with           
 DNR for land management.  The statute contains certain restrictions           
 in conjunction with DNR's statutes.  If the working relationship              
 becomes a problem, the Authority would have to request a new                  
 management scheme through legislative action.                                 
                                                                               
 Number 527                                                                    
                                                                               
 SENATOR TAYLOR thanked Mr. Pugh for his offer to serve as a board             
 member.  He stated it has been his experience in working with Mr.             
 Pugh that he has always been candid, honest, and a consummate                 
 professional.                                                                 
                                                                               
 Number 531                                                                    
                                                                               
 JEAN PECHIANAULT, president of the Kodiak Alliance for the Mentally           
 Ill, consumer representative to the Alaska Alliance for the                   
 Mentally Ill Board of Directors, and newly appointed member of the            
 Mental Health Consumers of Alaska, testified.  She stated the                 
 Kodiak Alliance and several affiliates oppose the appointment of              
 John Malone to the Alaska Mental Health Trust Authority Board of              
 Trustees.  They are very concerned Mr. Malone will not represent              
 the beneficiaries of the Trust and put his own interests first.               
 They feel strongly that the Executive Committee, with Mr. Malone as           
 president, did not represent the great majority of the affiliates             
 of the Alliance.  There has also been discussion about the Trust's            
 ability to act independently.  She concurred with Mr. Page's                  
 statement about the Trust not being a substitute for legislative              
 funding of mental health programs.  She noted proposed cuts of up             
 to 45 percent of mental health funds are under discussion by the              
 Legislature.                                                                  
                                                                               
 SENATOR TAYLOR thanked Ms. Pechianault for her testimony and                  
 promised to review the budget cuts to mental health funds.                    
                                                                               
 Number 564                                                                    
                                                                               
 FRANCES KATER testified from Kodiak.  She spent several years as              
 part of a coalition representing the beneficiaries to help further            
 the settlement.  One of the principles behind the coalition was to            
 ensure that trust land or assets used for the direct benefit of the           
 beneficiaries when possible.  She hoped the Authority would adopt             
 such a policy if it is not required in the settlement.                        
                                                                               
 SENATOR TAYLOR stated he believes that option is in the settlement.           
 He thanked Ms. Kater for her assistance.                                      
                                                                               
 Number 579                                                                    
                                                                               
 HENRIETTA NUGEN commented she is a newly appointed member of the              
 Advisory Council on Alcohol and Drug Abuse and looks forward to               
 working with the Trustees.                                                    
                                                                               
 Number 589                                                                    
                                                                               
 PHIL YOUNKER, JR., an appointee, specified his background has been            
 in assisting families of disabled individuals with estate planning.           
 After seeing problems faced by these families in both funding                 
 crises and in dealing with the state, he decided to apply for the             
 appointment.  He wants to work on investment issues to help                   
 families.                                                                     
                                                                               
 SENATOR TAYLOR thanked all appointees and other participants for              
 their statements.                                                             
                                                                               
 TAPE 95-21, Side B                                                            
       SB 105 PARENTAL CONSENT BEFORE MINOR'S ABORTION                       
                                                                               
 SENATOR TAYLOR announced that David Wilson had prepared written               
 testimony for the committee which would be distributed to committee           
 members.                                                                      
                                                                               
 NANCY ODEM testified from Anchorage.  She stated Justice James C.             
 McReynolds, in the case Pierce vs. Society of Sisters, summarized             
 that the child is not the mere creature of the state, and                     
 recognized the important role played by parents in a child's life.            
 The court has recognized their rights and high duty to protect and            
 guide their children.  By virtue of ignorance, inexperience and               
 immaturity and credulity, children are vulnerable.  Unprotected               
 children are at risk for accidental harm, as well as intentional              
 harm from those would take advantage of their vulnerability.                  
 Without an effective parental consent law, Alaska's children are              
 terribly vulnerable.  The abortion industry relies on the                     
 indiscretions of children for financial gain.  Abortion can have              
 devastating physical and psychological impacts.  She urged the                
 committee's support of SB 105.                                                
                                                                               
 Number 540                                                                    
                                                                               
 PEGGY SEELEY testified from Anchorage in support of SB 105.  She              
 stated a minor must have parental consent for any other medical               
 procedure.  Abortion can result in serious injury or death to the             
 mother.  Many of these injuries or deaths go unreported because of            
 the nature of the abortion industry.  Parents have the best                   
 interests of their daughters at heart and no one is more truly                
 concerned about their physical and emotional wellbeing.  Many                 
 studies reveal that abortions significantly increase the young                
 woman's suicide potential, and such teens are 10 times as likely to           
 commit suicide within six months of an abortion.  Teenagers are not           
 adults, legally, emotionally, or psychologically, and need parental           
 guidance for perhaps the most crucial decision they will ever make.           
                                                                               
 Number 507                                                                    
                                                                               
 There being no one else to testify, SENATOR TAYLOR stated the                 
 committee has received significant testimony and written testimony            
 from Anchorage and the matter has been given sufficient time.  His            
 personal belief is that this issue involves children and should               
 require parental consent as for any medical procedure.                        
                                                                               
 SENATOR MILLER moved CSSB 105 (JUD) be discharged from committee              
 with individual recommendations.  There being no objection, the               
 motion carried.                                                               
         HB 115 DAMAGES & ATTY FEES FOR UNPAID WAGES                         
                                                                               
 PAM NEAL, President of the Alaska State Chamber of Commerce,                  
 testified in support of CSHB 115 (JUD)am.  Employers in violation             
 of the minimum wage and overtime compensation law is automatically            
 liable for liquidated damages regardless of the circumstances,                
 under current law.  The federal Fair Labor Standards Act allows the           
 Court to waive liquidated damages in whole or in part, if it can be           
 shown the employer acted reasonably and in good faith.  The Alaska            
 Supreme Court's interpretation of Alaska's Wage and Hour Act                  
 prevents the Court and the commissioner of the Department of Labor            
 from applying the same standard of fairness.  Under the provisions            
 proposed in CSHB 115(JUD)am, employees will still be fully                    
 protected under the law, and the courts and the commissioner will             
 be allowed to consider the circumstances of the case when                     
 determining the awarding of liquidated damages.                               
                                                                               
 C.J. ZANE, Holland American Lines, testified in support of CSHB 115           
 (JUD)am.  He has been working on this bill for a number of years              
 with the state and Chamber of Commerce.  Many employers statewide,            
 i.e. Carrs, Tesoro Petroleum, Westmark Hotel, Sheraton, Providence            
 Hospital, have worked on this bill and made it a legislative                  
 priority.  Last year a bill passed the House that was more                    
 favorable to employers.  The bill did not pass the Senate.  After             
 extensive good faith negotiations and compromise with Commissioner            
 Tom Cashen, this new bill was created and is an honest and true               
 compromise, and restores balance to this area of the law.                     
                                                                               
 Number 443                                                                    
                                                                               
 SENATOR TAYLOR noted there are no proposed amendments to the bill             
 in the Senate Judiciary Committee at this time.  He asked Mr. Zane            
 for his assurance that should the legislation be amended after it             
 leaves the committee, he will participate with the chair to have              
 the bill returned to the committee.  MR. ZANE replied the position            
 of his clients, Holland American Lines, Westmark Hotels, and Gray             
 Line of Alaska is that they have forged a very good compromise and            
 they don't want to see amendments more, or less, favorable to                 
 employers.  He agreed to work with the chair, as everyone will be             
 best served with the measure as is.                                           
                                                                               
 SENATOR TAYLOR announced he would hold the bill until a quorum was            
 present to move the bill.                                                     
          SB  95 INSURANCE AGAINST UNINSURED DRIVERS                          
                                                                              
 SHERMAN ERNOUF, legislative aide to the Senate Labor and Commerce             
 Committee, testified on the Labor and Commerce committee                      
 substitute.  It reduces the maximum mandatory offer of                        
 uninsured/underinsured motorist coverage to $500,000 per person and           
 $1,000,000 per incident.  Uninsured/underinsured motorist coverage            
 protects the vehicle owner against being injured in an accident               
 with an at-fault motorist who has no bodily injury liability                  
 insurance.  UI motorist coverage applies only if the uninsured                
 motorist is legally liable for the resulting injury.  Uninsured               
 motorist coverage puts the injured insured in the same position as            
 he/she would be in if the motorist responsible for the accident had           
 bodily injury liability insurance.  The injured driver who cannot             
 be compensated for an injury by a negligent party who has no                  
 insurance, can turn to his/her own insurance company for                      
 compensation.  In effect, the injured driver's company must take              
 the place of the at-fault motorist who has no liability insurance.            
 Three years ago the Alaska Legislature passed legislation which               
 required Alaskan insurers to make a mandatory offer of                        
 uninsured/underinsured motorist coverage of $1 million per person,            
 and $2 million per accident.  This mandatory offer has increased              
 the cost of liability insurance for all policy holders.  CSSB 95              
 (L&C) seeks to assure the Alaskan consumer competitive automotive             
 insurance premiums by encouraging a competitive marketplace.  The             
 bill would encourage a competitive market by requiring insurance              
 companies to offer a lower mandatory offer allowing smaller                   
 companies to enter the market if the cost of reinsurance drops.               
                                                                               
 Number 392                                                                    
                                                                               
 SENATOR TAYLOR noted two major issues that have surfaced since the            
 bill was originally filed.  He asked Mr. Ernouf to summarize the              
 two district court cases that resulted in two different judgements.           
                                                                               
                                                                               
 MR. ERNOUF deferred the question to Don Koch of the Division of               
 Insurance.  He stated CSSB 95 (L&C) was a consensus approach to the           
 offer problem.  The two court cases pertain to the triggering                 
 mechanism problem.                                                            
                                                                               
 SENATOR TAYLOR commented the offer issue is non-controversial; but            
 the underinsured insurance dilemma needs to be addressed.  He                 
 stated the uninsured motorist issue was addressed with SR 22 since            
 a driver must establish and prove that he/she is insured before               
 his/her license is returned.  He asked Mr. Ernouf for the                     
 definition of "underinsured."  MR. ERNOUF responded that definition           
 is what caused the dilemma with the two court cases, since the                
 triggering mechanism by which the court will decide which part of             
 underinsurance has to be paid is unclear.  He added that issue has            
 gone around full circle in the Labor and Commerce Committee.                  
 SENATOR TAYLOR asserted it requires the Legislature to establish a            
 policy call.                                                                  
                                                                               
 Number 345                                                                    
                                                                               
 DENNIS BROWN, President of the Alaska Independent Insurance Agents            
 and Brokers, (AIIAB) gave the following testimony in opposition to            
 CSSB 95 (L&C).  The AIIAB opposes mandatory offers of uninsured               
 motorists and underinsured motorists based on two issues:                     
 availability of markets; and possible escalation of the auto                  
 premium.  Traditionally, uninsured and underinsured motorist                  
 premiums have not played a large part of the overall insurance                
 dollars spent on the coverage, that coverage being a fraction of              
 the auto insurance cost.  In the past few years the cost of the               
 uninsured motorist has risen at a faster rate than what AIIAB has             
 seen in other classifications, such as automobile liability                   
 insurance.  With passage of CSSB 95 (L&C), AIIAB would anticipate             
 a further acceleration of the auto insurance premiums in the state,           
 possibly bringing it to the highest level in the country.  The                
 AIIAB has learned by experience in California and New Jersey that             
 this creates both political problems for the Legislatures, as well            
 as problems for the insurance-purchasing public.  The companies               
 that left those states would not hesitate to leave Alaska.  Second,           
 the bill is confusing, not only for the industry, but for the                 
 consumer.  When an insured buys auto liability coverage there are             
 two factors that are considered: cost and protection.  If the buyer           
 has little or no assets, cost is the driving factor.  If the                  
 consumer has assets, while cost plays a part, protection is a                 
 mandatory factor.  In the purchase of uninsured/underinsured                  
 motorist coverage, the primary factor will most likely be cost                
 which will only drive insurance rates higher.  As premiums rise,              
 more will drop out of the insurance mechanism putting further                 
 pressure on those who remain insured.  AIIAB urges returning to the           
 system of buying uninsured/underinsured motorist coverage up to the           
 limit that is purchased for the third party liability coverage with           
 recovery limited to those limits, with offsets provided by the                
 responsible motorist.                                                         
                                                                               
 Number 320                                                                    
                                                                               
 SENATOR TAYLOR questioned the statement, "with recovery limited to            
 that which was chosen by the responsible motorist."  MR. BROWN                
 replied, "The AIIAB would urge that if the purchaser of the                   
 uninsured motorist coverage had third party liability coverage,               
 that is coverage that is attributed to somebody that he or she runs           
 into, that the corresponding uninsured motorist coverage that they            
 have purchased would equal that.  If they were involved in an                 
 accident and the responsible party, especially the underinsured               
 motorist, had a policy of $50,000, that there would be a total of             
 $300,000 applicable to that loss, with the first $50,000 paid by              
 the responsible party, and the balance paid by the underinsured               
 motorist coverage provided to the policyholder."                              
                                                                               
 SENATOR TAYLOR asked for further clarification of Mr. Brown's two             
 statements.  MR. BROWN replied, "We would urge we go back to a                
 system of buying uninsured motorist and underinsured motorist                 
 coverage up to the limit that is purchased for the third party                
 coverage and recovery limited to those limits with offsets provided           
 by the responsible motorist."  He explained the uninsured motorist            
 limits purchased by the policyholder would equal the third party              
 liability coverage amount.                                                    
                                                                               
 SENATOR TAYLOR asserted it should be the purchaser's choice to                
 choose the amount of liability coverage on oneself and on the                 
 amount he/she wished to purchase in case he/she was struck by an              
 uninsured motorist.  He asked Mr. Brown if he believes the amounts            
 of each policy should be the same.  MR. BROWN replied the AIIAB's             
 position is that the purchaser would have an option to buy an                 
 amount of uninsured/underinsured motorist coverage equal to the               
 amount in the liability policy.                                               
                                                                               
 SENATOR TAYLOR asked if the purchaser would have to choose the same           
 amount of coverage for both policies.  MR. BROWN answered, "No, we            
 are not saying that, but the problem that we have is when you                 
 purchase uninsured motorist or underinsured motorist limits,                  
 greater than what you are willing to buy for liability insurance              
 for yourself, that is the problem we are having."                             
                                                                               
 Number 260                                                                    
                                                                               
 SENATOR TAYLOR asked why that would be a problem as it would only             
 trigger in the event an individual hit someone with a lesser amount           
 of coverage, or no coverage at all.  MR. BROWN stated, "In an ideal           
 world, it would be great, but in the world of practicality, as we             
 see it, as an association, is that it is going to drive the auto              
 rates completely out of sight.  There has to be an outward                    
 pressure, or an outward movement of premiums that one has to buy to           
 buy a family auto policy."                                                    
                                                                               
 SENATOR TAYLOR discussed the following scenario.  "Mr. Brown,                 
 unless I'm misunderstanding you, what you are saying is that                  
 whenever two people have been responsible drivers and have                    
 purchased insurance, and each purchased insurance for amounts they            
 decided was a fair risk that they should take, and that they should           
 spend that amount of money to buy the insurance, then                         
 unfortunately, these two responsible drivers have run into one                
 another.  What you are basically saying is the insurance industry             
 should only have to pay off on one policy, and that is the cheapest           
 policy.  Otherwise it will drive rates right through the ceiling,             
 right?"                                                                       
                                                                               
 MR. BROWN reiterated the AIIAB's position is that the whole problem           
 is over the underinsured motorist coverage.  AIIAB's goal is to               
 have the insured be allowed to purchase that protection for                   
 uninsured motorists equal to his/her liability limit.  He stated,             
 "If a person bought $500,000 worth of underinsured motorist                   
 coverage and had third party liability coverage for $500,000, and             
 that person was involved in an accident with an individual who                
 carried a $100,000 policy limit, and the claim was worth $500,000,            
 there would be recovery from the individual for $100,000, and the             
 person would have the opportunity to collect from his/her                     
 underinsured motorist coverage for the other $400,000.  That is               
 what the AIIAB would like to achieve, instead of stacking the                 
 underinsured motorist limits over the policy of the driver                    
 responsible for the accident."                                                
                                                                               
 Number 231                                                                    
                                                                               
 SENATOR TAYLOR said, "Let's say I have the $300,000 underinsured              
 policy, and you have the $100,000 policy, and you run into me and             
 cause $400,000 worth of damage.  I have the right to sue you                  
 because you had a liability policy good for $100,000.  So I get to            
 sue you and your company confesses policy limits.  They kick in               
 $100,000.  I've been paid by you all I can get out of your policy.            
 Now, I, being a responsible motorist, had gone and purchased                  
 underinsured motorist coverage of $300,000.  I've got $400,000                
 worth of damages.  There are two scenarios that can now occur.  One           
 scenario is that my policy that I purchased face value, that said             
 $300,000, is only good for $200,000 because you want to add the               
 $100,000 I got from the other guy.  In other words, you want me, on           
 my policy, to be subrogated to the third party who was liable.  So            
 I can recover a maximum total of $300,000, and you say that somehow           
 this is something I paid for.  No, I paid for $300,000 of                     
 underinsured from your company.  Your policy of $100,000 you paid             
 for yourself, that is outside of the contract I have with you.  The           
 second scenario is, as you call, stacking, and stacking says I go             
 after the bad guy that ran into me.  I get $100,000 from him and              
 since I still have $300,000 of stipulated damages, over and above             
 that, I then turn to my own carrier, and of course I'll have to               
 file suit because they will never voluntarily come in and give that           
 money to me.  I'll have to bring a suit in court against my own               
 insurance company for that $300,000 of underinsured coverage that             
 I had purchased in good faith in the first place.  Under one                  
 district court judge, he says you can't stack, and under the other            
 district court judge, he says you can.  Isn't that the problem we             
 got?"                                                                         
                                                                               
 MR. BROWN stated he would agree.  SENATOR TAYLOR commented,                   
 according to Mr. Brown, those two people who had paid a fair,                 
 actuarially-justified, Commissioner of Insurance-reviewed premium             
 will cause devastating impacts to the industry if we make those two           
 companies meet their contractual requirements.  MR. BROWN clarified           
 the AIIAB's position is that it would drive the auto premium rates            
 upward.  Whether the carriers are willing or unwilling to do this             
 is a matter for the insurance industry to decide.  The AIIAB's                
 membership consists of people at the point of contact, they sell              
 the product to the consumer and know whether markets exist and what           
 drives the costs.  The uninsured motorist rates have doubled over             
 the past few years.  The AIIAB is questioning at what point does              
 the consumer pay enough before the marginal ones drop out.                    
                                                                               
 SENATOR TAYLOR replied he understands the consumer aspect of the              
 problem, and he does not want to do anything that will encourage              
 the insurance industry to bill the consumer at higher rates.  He              
 asked if his actuaries have been selling insurance based upon the             
 fact that only half of the claims would have to be paid off.  "Your           
 policy wouldn't get touched as long as you could tap the other                
 guy's policy, so you'd get that premium for free, and also get an             
 offset every time that you had an opportunity to push the coverage            
 off onto Brand X company instead of having to pay under your                  
 underinsured motorist provision that you sold your own customer.              
 MR. BROWN disagreed, and noted that all rates are loss-driven.  The           
 amount paid out in the form of losses, is directly reflected in the           
 rates charged.  If they are going to pay more out in losses under             
 the underinsured motorist section, obviously that rate will                   
 increase.                                                                     
                                                                               
 Number 140                                                                    
                                                                               
 SENATOR TAYLOR stated if there was a captive population of 100                
 people on an island, with mandatory insurance, purchased from two             
 companies by equal numbers, one company would never have to pay off           
 on a policy in a given year, depending on who ran into who.  When             
 premiums are determined by losses, insurance companies are counting           
 on not having to pay off a percentage of the time based upon the              
 manner in which you interpreted the policy prior to the case.                 
                                                                               
 Number 120                                                                    
                                                                               
 MR. BROWN answered he is not testifying on behalf of the insurance            
 industry.  The AIIAB's clients are paid by the consumer, and he is            
 testifying on the impact to the consumer.  SENATOR TAYLOR asked if            
 the income of AIIAB's members is derived as a percentage of                   
 premiums sold to the customer.  MR. BROWN answered affirmatively.             
 SENATOR TAYLOR asked if insurance companies have a contractual                
 agreement with AIIAB and refer to AIIAB as their agent.  MR. BROWN            
 disclosed in some instances they do.  SENATOR TAYLOR said that is             
 why he considered Mr. Brown to be an agent speaking on behalf of              
 those companies when selling a policy.  He pointed out the                    
 Legislature needs to make a policy call on whether it is good or              
 bad policy to have consumers remain ignorant of what the word                 
 "underinsured" means.  The lay person believes he should collect              
 the amount of his underinsured policy necessary to pay damages less           
 the amount paid by the underinsured's policy.  If that causes                 
 premiums to increase, so be it.                                               
                                                                               
 Number 060                                                                    
                                                                               
 DON KOCH, Division of Insurance, explained CSSB 95 (L&C) began as             
 a repeal of the excess offer legislation that was enacted several             
 years ago.  The Division testified to the Labor and Commerce                  
 Committee that some room for compromise was necessary, because it             
 believed the mandatory limit in Alaska is the highest in the                  
 nation.  In view of the Tumbleson decision, the Division felt the             
 issues brought forth in that case needed to be addressed.  The                
 Division understood, when the excess offer legislation passed, that           
 underinsured motorist coverage was intended to be excess, so that             
 in the $400,000 example, the $100,000 would be available from the             
 other party, and the full $300,000 would be available as excess               
 insurance.                                                                    
                                                                               
 SENATOR TAYLOR asked if the Division interpreted the word "excess"            
 to refer to stacked coverage when the bill passed.  MR. KOCH                  
 replied affirmatively.  SENATOR TAYLOR asked if anyone in the                 
 industry would have thought otherwise.  MR. KOCH described the                
 disagreement as to what triggered the stacking in the Tumbleson               
 case.  His interpretation of the Tumbleson decision is that the               
 coverage is treated as excess, but is only triggered if the other             
 motorist is uninsured.  Effectively the case says that uninsured              
 motorist coverage before underinsured motorist coverage is                    
 triggered.                                                                    
                                                                               
 TAPE 95-22, Side A                                                            
                                                                               
 SENATOR TAYLOR asked if the lay person would think to ask when                
 underinsured coverage is triggered, when purchasing insurance.  MR.           
 KOCH felt they would not, and that most producers would not have              
 the time to explain the whole process.  Agents have expressed                 
 concern about E and O exposure for not adequately explaining the              
 procedure, therefore other alternatives are made more difficult.              
 He pointed out that to the degree the public fails to insure under            
 the mandatory automobile law, there will be more exposure in the              
 uninsured and underinsured area, as more losses arise from it.  The           
 automobile insurance premium contains a part that is mandatory: the           
 $50,000; $100,000; and $25,000 liability purchase.  The uninsured/            
 underinsured coverages are mandatory offers but are not required.             
 An insured may elect to waive that insurance.  Higher offers of               
 underinsured motorist coverage are increasing in cost, and                    
 insurance companies have been able to justify those increases with            
 division actuaries, and it is likely the costs will continue to               
 rise.  But that coverage is still an option for the consumer,                 
 therefore it should not affect all auto insurance consumers, only             
 those that choose to bear that cost.                                          
                                                                               
 SENATOR TAYLOR reiterated the Legislature needs to set a policy               
 since the two court decisions are conflicting as to what standard             
 to use.  He believed the federal court would adopt the policy once            
 enacted by the Legislature.  MR. KOCH implied the proposed Senate             
 Judiciary committee substitute would address both the Tumbleson               
 issue and the mandatory offer limit.                                          
                                                                               
 SENATOR TAYLOR pointed out that if all drivers had good liability             
 coverage, excess coverage would be unnecessary.  MR. KOCH replied             
 that would depend on the amount of liability coverage purchased by            
 consumers, since minimum limits are often inadequate.                         
                                                                               
 SENATOR TAYLOR thought it is bizarre that a person who has excess             
 coverage would be paid the full amount if he/she had an accident              
 with an uninsured motorist, but would only collect the offset                 
 amount after suing his/her own insurance company if the accident              
 was with an underinsured motorist.  MR. KOCH stated some believe a            
 person should only be able to buy for his/her own protection, the             
 amount purchased for third party protection.  He disagrees as such            
 a policy would discourage consumers from taking responsibility in             
 protecting themselves as well as others.                                      
                                                                               
 Number 141                                                                    
                                                                               
 SENATOR TAYLOR felt Mr. Brown alluded to the fact that people                 
 should only be allowed to purchase equal amounts of liability                 
 insurance and excess coverage.  MR. KOCH agreed, and clarified the            
 idea is that an individual should only be able to purchase for                
 their own protection, the amount he/she purchases for the third               
 party's protection.   That opinion prevails in many states,                   
 although several states are moving toward higher mandatory offers             
 of uninsured/underinsured coverage.                                           
                                                                               
 SENATOR TAYLOR asked Mr. Koch about the no-fault insurance movement           
 in Alaska, which turned out to be uninsured/underinsured motorist             
 coverage.  MR. KOCH replied an individual could purchase                      
 uninsured/underinsured motorist coverage prior to that time, but              
 only up the limit of one's third party limits.  At that time it was           
 only triggered by uninsured motorists.  A few companies voluntarily           
 offered underinsured motorist coverage but there appeared to be no            
 marketing effort for it.                                                      
                                                                               
 SENATOR DONLEY clarified that underinsured motorist coverage was              
 offered with the adoption of mandatory auto insurance in 1984.  MR.           
 KOCH explained it was never made distinct coverage.  In 1990,                 
 legislation clarified that those coverages were to be offered as              
 excess coverage.  During that time period, many states were                   
 enacting no-fault laws with the initial focus for responsibility to           
 oneself, and contained thresholds from the tort system.  Alaska               
 chose a new departure.  In fairness to insurance agents, MR. KOCH             
 stated this concept is difficult to sell because it is a departure.           
                                                                               
 SENATOR TAYLOR commented to prevent insurance agents' E and O                 
 exposure from expanding under the two court decisions the                     
 Legislature must make a policy decision one way or the other.  MR.            
 KOCH agreed, and reiterated the proposed Judiciary committee                  
 substitute appears to have a clear expression of intent.                      
                                                                               
 SENATOR TAYLOR announced CSSB 95(L&C) would be held over until next           
 Wednesday.                                                                    
                                                                               

Document Name Date/Time Subjects