Legislature(1993 - 1994)

02/19/1993 01:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                        February 19, 1993                                      
                            1:41 p.m.                                          
  MEMBERS PRESENT                                                              
  Senator Robin Taylor, Chairman                                               
  Senator Rick Halford, Vice-Chairman                                          
  Senator Dave Donley                                                          
  Senator Suzanne Little                                                       
  MEMBERS ABSENT                                                               
  Senator George Jacko                                                         
  COMMITTEE CALENDAR                                                           
  SENATE JOINT RESOLUTION NO. 6                                                
  Proposing amendments  to the  Constitution of  the State  of                 
  Alaska  authorizing the use  of the initiative  to amend the                 
  Constitution  of  the   State  of  Alaska  by   approval  of                 
  two-thirds of the votes cast on the proposed amendment.                      
  SCHEDULED BUT NOT HEARD THIS DAY.                                            
  SENATE JOINT RESOLUTION NO. 8                                                
  Proposing amendments  to the  Constitution of  the State  of                 
  Alaska relating to capital projects and loan appropriations,                 
  and to the expenditure limit.                                                
  SCHEDULED BUT NOT HEARD TODAY.                                               
  SENATE BILL NO. 49                                                           
  "An Act relating to preelection reports; closing the two-day                 
  reporting gap in those reports; setting the date of February                 
  15  for  filing  year-end  campaign  finance  reports;   and                 
  requiring reporting of zero year-end reports."                               
  SCHEDULED BUT NOT HEARD TODAY.                                               
  SENATE BILL NO. 19                                                           
  "An Act relating to the crime of conspiracy."                                
  SENATE BILL NO. 64                                                           
  "An Act  relating to  civil liability  for workplace  safety                 
  inspections; and providing for an effective date."                           
  PREVIOUS SENATE COMMITTEE ACTION                                             
  SJR 6 - See State Affairs minutes dated 1/25/93 and 1/27/93.                 
          See Judiciary minutes dated 2/17/93.                                 
  SJR 8 -  See State Affairs minutes dated 1/27/93.   See                      
          Judiciary minutes dated 2/15/93.                                     
  SB 49 - See Senate State Affairs minutes dated 1/29/93.                      
          See Judiciary minutes dated 2/17/93.                                 
  SB 19 - NONE                                                                 
  SB  64  - See  Labor  &  Commerce minutes  dated  2/4/93 and                 
  WITNESS REGISTER                                                             
  Jerry Luckhaupt, Attorney                                                    
  Legislative Legal Counsel                                                    
  Legislative Affairs Agency                                                   
  130 Seward Street #401                                                       
  Juneau, Alaska 99811                                                         
    POSITION STATEMENT: Drafted SB 19.                                         
  Dean Guaneli, Chief                                                          
  Criminal Division                                                            
  Department of Law                                                            
  P.O. Box 110300                                                              
  Juneau, Alaska 99811-0300                                                    
    POSITION STATEMENT: Supported SB 19.                                       
  C. E. Swackhammer, Deputy Commissioner                                       
  Department of Public Safety                                                  
  P.O. Box 111200                                                              
  Juneau, Alaska 99811-1200                                                    
    POSITION STATEMENT: Supported SB 19.                                       
  Kent Swisher, Executive Director                                             
  Alaska Municipal League                                                      
  217 Second Street, Suite 200                                                 
  Juneau, Alaska 99801                                                         
    POSITION STATEMENT: Supported SB 64.                                       
  Kevin Dougherty                                                              
  2501 Commercial Drive                                                        
  Anchorage, Alaska 99501                                                      
    POSITION STATEMENT: Opposed SB 64.                                         
  Mike Schneider                                                               
  880 N Street, #702                                                           
  Anchorage, Alaska 99501                                                      
    POSITION STATEMENT: Opposed SB 64.                                         
  Eric Sanders                                                                 
  500 L St., STE 400                                                           
  Anchorage, Alaska 99501                                                      
    POSITION STATEMENT: Opposed SB 64.                                         
  James Pfeifer, President                                                     
  Alaska National Insurance Company                                            
  7001 Jewel Lake                                                              
  Anchorage, Alaska 99503                                                      
    POSITION STATEMENT: Supported SB 64.                                       
  Paul Arnoldt, Director                                                       
  Division of Workers' Compensation                                            
  Department of Labor                                                          
  P.O. Box 25512                                                               
  Juneau, Alaska 99802-5512                                                    
    POSITION STATEMENT: Supported SB 64.                                       
  Mike Ford, Attorney                                                          
  Legislative Legal Counsel                                                    
  130 Seward Street                                                            
  Juneau, Alaska 99811                                                         
    POSITION STATEMENT: Drafted SB 64.                                         
  ACTION NARRATIVE                                                             
  TAPE 93-14, SIDE A                                                           
  Number 001                                                                   
  Chairman Robin Taylor called the Judiciary Committee meeting                 
  to order at 1:41 p.m.                                                        
  SENATOR TAYLOR brought  SB 19  (CRIME OF CONSPIRACY)  before                 
  the  committee,  and  invited  the  prime  sponsor,  SENATOR                 
  HALFORD, to review the bill.                                                 
  SENATOR   HALFORD  explained   the  bill,  which   was  also                 
  introduced  last year, would make the  crime of conspiracy a                 
  separate crime, and would drop the crime classification down                 
  one from the actual crime resulting from the conspiracy.  He                 
  said it was a law enforcement tool, available on the federal                 
  level and in nearly every other state in the union.                          
  SENATOR DONLEY supported the concept  of the legislation and                 
  had sponsored similar  legislation in the past.   He praised                 
  the work done on  the concept in House Judiciary  last year,                 
  in refining to more closely parallel some of  the provisions                 
  of the Uniform Act.                                                          
  SENATOR DONLEY  also gave credit  to DEAN GUANELI,  from the                 
  Criminal Division of  the Department  of Law, for  providing                 
  him comfort for the concept of  conspiracy, one of which was                 
  to add a provision making it was an affirmative defense if a                 
  law   enforcement  official  was   the  only  other  person.                 
  Otherwise,  he  said,  you  have  the potential  for  police                 
  officers creating  the conspiracy, by  offering to  conspire                 
  with the perpetrator.                                                        
  Number 097                                                                   
  SENATOR DONLEY noted some additional provisions dealing with                 
  the issue of  conspiracies creating multiple crimes,  and he                 
  explained the  language in the previous bill that solved the                 
  problem.   Another  change, he  said, was  to better  define                 
  "overt act," and he gave an example of the definition.                       
  Additionally, SENATOR DONLEY  worked on the duration  of the                 
  conspiracy, and how it is terminated.  He discussed language                 
  that had been  developed previously,  and noted the  wording                 
  had been expanded since last year.                                           
  SENATOR  DONLEY  concluded by  describing  testimony  on how                 
  people could withdraw  from a  conspiracy.  They  originally                 
  agreed  to a conspiracy, and how do  they make it clear they                 
  don't want to have anything to do with it.  Are they pulling                 
  out  before the crime actually occurs, before the overt act?                 
  SENATOR  DONLEY  explained  they  had  added  a  section  on                 
  governing limitation actions, and  adding some criteria  for                 
  abandoning  the  conspiracy  agreement.   He  said  it would                 
  encourage  people  to   come  forward  to  warn   society  a                 
  conspiracy   is  taking   place   and  to   terminate  their                 
  SENATOR HALFORD directed the drafter, JERRY LUCKHAUPT, to go                 
  through the bill.                                                            
  Number 187                                                                   
  MR.  LUCKHAUPT   reviewed  the  bill  section   by  section,                 
  beginning  with  Section 1,  Subsection  (a), which  defines                 
  "conspiracy" and "overt act."  Subsection (b) explains guilt                 
  by  association,  and he  gave  an  example  to clarify  the                 
  situation of multiple offenders.                                             
  MR.  LUCKHAUPT  explained  Subsection (c)  outlines  various                 
  situations  which  are   not  offenses   to  the  crime   of                 
  conspiracy.  He said Subsection  (d) provided an affirmative                 
  offense  to the  crime  of conspiracy  when  dealing with  a                 
  person  for  whose  conduct  the  defendant is  not  legally                 
  accountable under AS 11.16.120(b).                                           
  MR.  LUCKHAUPT said  (e)  provides the  withdrawal discussed                 
  previously  by SENATOR  DONLEY, affirmative  defenses for  a                 
  person  withdrawing  from the  offense,  and sets  forth the                 
  process of withdrawing from the crime.  Subsection (f) lists                 
  the penalty provisions depending on the level of crime being                 
  conspired, and stepping down one  felony classification.  He                 
  gave an  example to  provide definition  to "serious  felony                 
  offense" in Subsection (g).                                                  
  Number 260                                                                   
  MR. LUCKHAUPT  summarized  Sections 2,  3,  and 4  as  being                 
  technical  amendments  to  recognize   conspiracy  as  being                 
  similar to solicitation and attempts to commit offenses.  He                 
  said Section 5  is basically  a technical amendment  setting                 
  forth the penalty for conspiracy.                                            
  SENATOR  LITTLE clarified there was no provision in the bill                 
  for a police officer  being the second person involved  in a                 
  two person conspiracy.   MR. LUCKHAUPT said he did  not hear                 
  the explanation by  SENATOR DONLEY,  and suggested that  MR.                 
  GUANELI could give a better answer.                                          
  SENATOR DONLEY asked  if the points he  raised were resolved                 
  in case  law.   MR. GUANELI  said there  was no  prohibition                 
  against  the  second person in  a conspiracy being a  police                 
  officer.  He  explained he was  not familiar with the  House                 
  Judiciary version of  the previous  conspiracy bill, but  he                 
  shared his  opinion  about  peace officers being  the second                 
  person in a conspiracy.                                                      
  MR.  GUANELI outlined  cases that would  be assisted  by the                 
  conspiracy  law: murder, kidnapping,  arson, and drug cases.                 
  He explained that some  cases such as sexual abuse  and rape                 
  are rarely subject to conspiracy prosecution.  He thought it                 
  would be rare in drug offenses to have a police officer be a                 
  party  to a conspiracy,  because it would  be stopped before                 
  the sale or  transfer.   With respect to  murder cases,  the                 
  police might  want to  stop that  offense before  an attempt                 
  takes place, and he gave a plausible example.                                
  Number 356                                                                   
  SENATOR  HALFORD continued with MR. GUANELI'S example, which                 
  he  claimed  would not  work.   They  worked on  a different                 
  SENATOR DONLEY  explained the  provision was  to address  an                 
  overt  act  being  committed  by the  police  officer.   MR.                 
  GUANELI thought that  fewer problems are probably  caused by                 
  officers  committing  overt acts  than  would be  created by                 
  eliminating police officers as second person candidates in a                 
  SENATOR DONLEY expressed concerns at the entrapment when the                 
  officer is the  co-conspirator, and MR. GUANELI  agreed, but                 
  said  that  law wouldn't  be  changed  with that  bill.   He                 
  claimed the state would still have the burden of proving the                 
  entrapment did  not occur.   SENATOR  HALFORD expressed  his                 
  concerns with their example and entrapment.                                  
  Number 397                                                                   
  SENATOR DONLEY was still troubled with having a third party,                 
  who  was not  an active  conspirator, and  he explained  his                 
  concerns about the theory of conspiracy, the intent, and the                 
  act.  He debated  the true co-conspirator as opposed  to the                 
  person who is doing the intent but not the act.                              
  Number 407                                                                   
  MR. GUANELI  said he  viewed the  elements of  the crime  as                 
  written in the bill as the intent,  and the act would be the                 
  agreement between two people.  In addition, he discussed how                 
  the offense would transpire.                                                 
  SENATOR TAYLOR suggested it might  be difficult to establish                 
  before a jury that the  officer was the one doing  the overt                 
  act, and it might be a weak case.                                            
  SENATOR  TAYLOR   led  a  continuing   discussion  with  the                 
  committee and MR. GUANELI of  overt acts, conspiracy, police                 
  officers  as  co-conspirators, possible  abuses, entrapment,                 
  murder, intimidation, enticement, and frustration.                           
  SENATOR HALFORD said he  would like to leave the  problem of                 
  "overt act" open for further  discussion, and SENATOR DONLEY                 
  thought it should  be done in a cautious  manner.  He played                 
  the "devil's advocate" to present the other side.                            
  Number 531                                                                   
  SENATOR TAYLOR invited C.E. SWACKHAMMER, from the Department                 
  of Public Safety, to testify on SB 19.                                       
  MR. SWACKHAMMER spoke for all of Public Safety in support of                 
  the conspiracy bill,  and he noted  a couple of points  that                 
  paralleled general statutes.  He said it would  allow Public                 
  Safety a tool to reach participants  in crimes, they are not                 
  presently able to reach.  He described the example of a case                 
  involving   a  substantial   amount   of   drugs  and   many                 
  participants,  but without  the  conspiracy tool,  they were                 
  unable to pull everyone together.                                            
  MR. SWACKHAMMER explained  the legislation  would assist  in                 
  trials with  multiple defendants,  where the defendants  are                 
  severed and  the jury  never hears  the total  story -  only                 
  SENATOR  DONLEY  agreed with  the  problems outlined  by MR.                 
  SWACKHAMMER, and he noted some  progress in bills from  last                 
  SENATOR TAYLOR announced  SB 19 would be  held in committee.                 
  He noted that DEBORAH GRAVO, and  RAY BROWN in Anchorage had                 
  comments,  and he invited them to try again when the bill is                 
  Number 568                                                                   
  SENATOR  TAYLOR  presented   SB  64  (IMMUNITY   FOR  SAFETY                 
  INSPECTIONS)  sponsored  by the  Senate  Labor  and Commerce                 
  Committee, and he introduced  the participants in  Anchorage                 
  on the teleconference network.                                               
  For  the  first  witness,  SENATOR  TAYLOR  called  on  KENT                 
  SWISHER, Executive Director for the Alaska Municipal League,                 
  to testify.                                                                  
  Number 568                                                                   
  MR.  SWISHER expressed  the  support of  the members  in the                 
  Alaska Municipal League for the concept of SB  64 and to ask                 
  for  an  extension  to  cover  a situation  affecting  local                 
  governments.  He  described a league sponsored  group called                 
  the Joint Insurance Association, which  provides joint self-                 
  insurance to about 70 municipalities.                                        
  MR. SWISHER stated the core of  the insurance program was on                 
  site safety inspections for their  members, and he explained                 
  how it was not always  possible to be aware of  all possible                 
  risks  in an inspection.   He thought  the safety inspectors                 
  made a good  faith effort to  locate risks to employees,  to                 
  bring those  risks to  the attention  of management,  and to                 
  suggest  corrections.   MR.  SWISHER  said they  should have                 
  protection for those things they cannot possibly know.                       
  MR. SWISHER asked for an expansion  of the bill to include a                 
  self-insured employer, or a self-insurance association.                      
  SENATOR  TAYLOR discussed  with  MR.  SWISHER  the  possible                 
  changes in the language on  page 1, line 7, after  the word,                 
  "employer," to insert the words, "a self-insured employer or                 
  a joint self-insurance association."                                         
  TAPE 93-14, SIDE B                                                           
  Number 001                                                                   
  MR. SWISHER said the words would also have to be inserted on                 
  line  9  after  "association's," to  cover  their  insurance                 
  There  was  some   discussion  on  a  couple   of  committee                 
  substitutes, and  SENATOR DONLEY asked if MR.  SWISHER if he                 
  thought the  legislation would  apply to local  governments,                 
  also.   MR. SWISHER  didn't think  it would  in its  present                 
  form,  but  he  thought  the  amendments would  cover  their                 
  association, which  is a corporation  separate and  distinct                 
  from the  Alaska Municipal  League.  He  gave some  expanded                 
  history on the self-insurance pool.                                          
  SENATOR TAYLOR  clarified MR. SWISHER'S  proposed amendment,                 
  and asked  if he thought it would work for pools created for                 
  schools.  MR. SWISHER  presumed it would - if  they organize                 
  as did the league insurance pool.                                            
  SENATOR   DONLEY   asked   MR.  SWISHER   how   the  phrase,                 
  "intentional act"  applied to  the liability  of his  safety                 
  program, and whether his pool should  be held to some degree                 
  of competence in their safety inspections.                                   
  MR. SWISHER responded  they were  not depriving the  injured                 
  worker of coverage.  He explained they were dealing with the                 
  question  of  whether  the  individual,  or  the  firm  that                 
  preformed the inspection, was liable  to the employer, whose                 
  premises were inspected.   He  used his 26  years of  safety                 
  work  to  claim  that  every  single  hazard  could  not  be                 
  identified,  and  he  expanded  on  all  sorts  of  possible                 
  Number 037                                                                   
  SENATOR DONLEY and MR. SWISHER  held a lengthy discussion on                 
  the  misconduct,  the  appropriate  rule  of  reason,  gross                 
  negligence,  standards,  intentional conduct,  and relieving                 
  the  inspector  of  liability to  the  municipality,  if the                 
  inspector fails to find the danger.                                          
  MR. SWISHER  said insurance was a wager  on the law of large                 
  numbers,  and  he gave  some examples.    He also  gave some                 
  options used to  minimize risks  and make it  better than  a                 
  SENATOR DONLEY expressed concerns the legislation would make                 
  things  worse  than they  are  now,  and  he used  "reckless                 
  inspections" as a  high standard  of care.   He thought  the                 
  safety problem was being made worse.                                         
  MR.  SWISHER  claimed  his  amendment  would  encourage  the                 
  conduct of inspections of all, as  opposed to not making the                 
  inspection in the  first place.   SENATOR DONLEY  questioned                 
  MR. SWISHER about  possible problems,  and he testified  the                 
  insurance pool  hadn't gotten  burned yet.   SENATOR  TAYLOR                 
  said it was very possible to get burned.                                     
  Number 106                                                                   
  SENATOR  DONLEY asked  MR.  SWISHER  if  there had  been  an                 
  increase in accidents, in  rates, and cases filed.   SENATOR                 
  TAYLOR clarified the question, and MR. SWISHER said they had                 
  never  been  sued as  the  result  of an  inspection  by the                 
  league's insurance  association.  SENATOR  DONLEY said  that                 
  was part of the answer he was seeking.                                       
  SENATOR DONLEY  questioned  MR. SWISHER  about  the  workers                 
  compensation, keeping  people safe  in the  work place,  and                 
  whether he was aware of places where the safety  inspections                 
  were stopped.                                                                
  MR.  SWISHER  wanted  to  be  sure everyone  understood  the                 
  service  he   represented  was   for  70   of  the   smaller                 
  municipalities, who were not conducting inspections of their                 
  own before they became involved  with the league's insurance                 
  pool.  He said they did 20 inspections a year in a 2.5  year                 
  cycle, and he said  that sooner or later, the  problem would                 
  Number 153                                                                   
  SENATOR TAYLOR switched to  the teleconference in Anchorage,                 
  where  DEBORAH GRAVO  said she  was  just there  to observe.                 
  Next he called on KEVIN DOUGHERTY to testify.                                
  MR.  DOUGHERTY  explained  he was  general  counsel  for the                 
  Alaska Labor's Union  and for eleven  years a member of  the                 
  Board  of  Compensation  ad hoc  Committee,  which  has been                 
  involved in much of the legislation for the last decade.  He                 
  though there was more protection now for the injured worker,                 
  but  the rates  for the employers  for the past  5 years had                 
  gone down 19.2%.   He  explained how they  had been able  to                 
  avert a crisis in the worker's compensation.                                 
  MR. DOUGHERTY said  SB 64  originated from a  1991 bill,  SB                 
  219, and he explained SB 64 leaves the injured worker out of                 
  the workers' compensation system.   He brought the 1989  Van                 
  Biene  v.   ERA  Helicopters,   Inc.  decision   before  the                 
  committee, to stress the  injured workers could not  be left                 
  behind.  He  reviewed some  of the history  of the  worker's                 
  compensation  act where injured workers gave up the right to                 
  sue  in  trade   for  being   supplanted  by  the   worker's                 
  compensation system for benefits.                                            
  MR. DOUGHERTY explained the impact of  the Van Biene case on                 
  the insurance industry, and he suggested another publication                 
  on the same issue.  He  finished by explaining problems with                 
  the  worker's  compensation  system,   and  suggested  JAMES                 
  PFEIFER  could  verify  prior  legislation.   MR.  DOUGHERTY                 
  agreed with SENATOR TAYLOR'S comment as to the need for more                 
  study on the legislation.                                                    
  SENATOR TAYLOR, in addressing MR. DOUGHERTY'S concerns, said                 
  they were in a separate bill.   He narrowed his focus to the                 
  safety of inspections, only.                                                 
  SENATOR TAYLOR asked  the participants in Anchorage  if they                 
  had received  copies of the  proposed committee substitutes,                 
  and he explained the latter of the two committee substitutes                 
  places this legislation back in Title 23, which should avoid                 
  some of the  concerns raised by  MIKE SCHNEIDER in the  last                 
  MR. SCHNEIDER had  received a copy of the bill.  He said the                 
  bill provides a  broad immunity beyond reason,  and does not                 
  narrowly limit it to claims by injured workers, whose claims                 
  are immunized under current law.  He said there was  no dual                 
  capacity doctrine in the State  of Alaska, thus, prohibiting                 
  an injured  worker  from  suing the  employer  as  a  safety                 
  MR. SCHNEIDER  continued to  express his  concerns over  the                 
  bill, and  he suggested  the committee  was  being asked  to                 
  immunize stupidity to the detriment  of injurer workers.  He                 
  said the bill as  drafted protects wrong doers  from claims,                 
  which  he listed.    MR. SCHNEIDER  concluded by  saying the                 
  committee shouldn't immunize wrongful conduct.                               
  Number 291                                                                   
  SENATOR TAYLOR said he had three drafts of SB 64, which were                 
  drafted to answer the issues MR. SCHNEIDER had raised in the                 
  previous hearing, and  he reviewed the proposals.   He asked                 
  MR. SCHNEIDER for his preference, if any.                                    
  MR SCHNEIDER  said as  long as it  immunizes the  inspectors                 
  from negligent conduct,  all of the legislation has the same                 
  SENATOR TAYLOR  next called on ERIC SANDERS  in Anchorage to                 
  Number 340                                                                   
  MR.  SANDERS introduced  himself as  a  plaintiff's personal                 
  injury   attorney,  and  gave   examples  for  opposing  the                 
  (The  teleconference   site  was  closed  down   before  the                 
  conclusion of testimony from MR. SANDERS in Anchorage.)                      
  SENATOR TAYLOR explained he planned to reply to MR. SANDER'S                 
  concerns, as well  as those  expressed by others.   He  drew                 
  attention to  page  1, line  9,  which says,  "The  worker's                 
  compensation carrier is  not liable for civil damages for an                 
  injury to an employee of that employer."  He said it did not                 
  immunize that carrier or employer from the damages caused by                 
  their employee.                                                              
  SENATOR TAYLOR  next  invited JAMES  PFEIFER,  President  of                 
  Alaska National Insurance Company, to testify.                               
  Number 420                                                                   
  MR. PFEIFER responded to testimony made before the Labor and                 
  Commerce Committee in a prior  meeting, included comments on                 
  the Van Biene case, safety  inspections, expanding the scope                 
  to third party lawsuits,  and placement in Title 21  instead                 
  of Title  23.  He  pointed to previous  testimony indicating                 
  the situation as it  is today in Alaska,  generally prevails                 
  throughout the  country.  MR.  PFEIFER denied  that was  the                 
  case, and he rebutted their  testimonies to the satisfaction                 
  of SENATOR TAYLOR.                                                           
  MR. PFEIFER made a few more supportive remarks and urged the                 
  passage of the bill.                                                         
  Number 480                                                                   
  SENATOR TAYLOR reviewed  the purpose of the  legislation and                 
  the  latest  committee  substitute.    He  asked  if  safety                 
  inspections had been  curtailed, and  MR. PFEIFER said  they                 
  had curtailed theirs, but continued some safety inspections,                 
  although not to the extent as prior to the Van Biene case.                   
  MR. PFEIFER  said if SENATOR DONLEY were still in committee,                 
  he would  let him know  they have been  sued similar  to Van                 
  Biene, and settled out of court at  a high cost.  He thought                 
  there were potentially other cases out  there, - with a high                 
  dollar cost.                                                                 
  Number 509                                                                   
  SENATOR  TAYLOR  and MR.  PFEIFER  continued to  discuss the                 
  issues, allegations, and compensation in the Van Biene case.                 
  TAPE 93-15, SIDE A                                                           
  Number 001                                                                   
  SENATOR  TAYLOR  welcomed  PAUL  ARNOLDT,  Director  of  the                 
  Division  of  Workers'  Compensation in  the  Department  of                 
  Labor, who had come to testify on SB 64.                                     
  MR. ARNOLDT  pointed out the sequence of bills suggested the                 
  impression the legislation would limit  the liability of the                 
  individual who  was doing  the inspection.   SENATOR  TAYLOR                 
  asked him to work off the committee substitute,  Ford, dated                 
  MR. ARNOLDT read  aloud the first sentence  of the committee                 
  substitute, and  opined it  sounded as  if it  was what  the                 
  legislation  was  trying to  prevent.   SENATOR  TAYLOR read                 
  another  portion which  seemed to  contradict  MR. ARNOLDT'S                 
  opinion, and he rebutted it  with the citation of 23.30.090.                 
  There was some discussion on his rebuttal.                                   
  Number 048                                                                   
  SENATOR TAYLOR  asked MR. FORD  to address the  opinion, and                 
  MR. FORD was not sure there  was coverage if the independent                 
  person  was acting  as the agent  of the insurer.   MR. FORD                 
  suggested some alternate language, but  he was not convinced                 
  there was a problem.   SENATOR TAYLOR directed him  to check                 
  to see if an amendment would be necessary.                                   
  MR.  ARNOLDT  didn't think  it  was a  workers' compensation                 
  issue, in terms of the division.                                             
  SENATOR TAYLOR asked  if the division  had a position on  SB                 
  64,  and MR.  ARNOLDT  quoted  the  Department of  Labor  as                 
  supporting the types of inspections that are contemplated in                 
  the  bill.   He  also quoted  the  department as  seeing the                 
  legislation   as  a  vehicle   to  prevent  the  individuals                 
  conducting the inspection,  from being  held to a  liability                 
  that was never intended.                                                     
  MR.  ARNOLDT  said if  that  was corrected,  the legislation                 
  would be satisfactory to the  Department of Labor.   SENATOR                 
  TAYLOR affirmed that was his intent,  as well as that of the                 
  SENATOR TAYLOR  asked MR.  FORD for  a summary  on the  most                 
  recent committee substitute for the legislation.                             
  Number 112                                                                   
  MR. FORD said  it was  unfortunate that all  of the  parties                 
  didn't  have the  latest draft, since  he thought  it solved                 
  many of the problems that were discussed.  He said the final                 
  draft was the result of several evolvements, and now focused                 
  on the narrow issue of "injury to an employee, the employer,                 
  and the employee's option to sue for the damages."                           
  MR. FORD recommended  a word change  in the latest draft  to                 
  "carrier" instead of "insurer," since  carrier is defined in                 
  workers' comp.   He addressed the municipal  insurance pool,                 
  and said he discussed it with a person from that office, who                 
  agreed the legislation took care of his problem.                             
  Both SENATOR TAYLOR and  SENATOR HALFORD wanted to  know why                 
  the legislation  was back under  Title 23, and  whether that                 
  was a  better place.   MR.  FORD thought  the discussion  on                 
  where to  place the  legislation was  misleading, since,  he                 
  said, placement  is not  as important  as substance,  and he                 
  explained  the  reasoning.   He  said the  ultimate decision                 
  would be made by the revisor of statutes.                                    
  SENATOR TAYLOR asked MR. FORD if  he had heard the testimony                 
  from the participants  in Anchorage, and  did he think  they                 
  were looking at  the same bill?  MR. FORD did not think they                 
  had the latest  version, and thought it would  have affected                 
  their comments on the scope of the immunity.                                 
  Number 170                                                                   
  There was  a final discussion  with MR. FORD  using possible                 
  examples.  MR.  FORD said it  was correct that under  common                 
  law, you would be able to sue the  inspector, if that person                 
  was negligent.   He said it  was up to  Senate Judiciary  to                 
  decide  if, in fact, that is good policy, and he quoted some                 
  of the testimony as being a trade-off.                                       
  SENATOR TAYLOR pushed for an answer  to his example, and MR.                 
  FORD explained under what circumstances  a person would have                 
  immunity.  They discussed third party negligence.                            
  There was no  one else wishing  to testify.  SENATOR  TAYLOR                 
  said he planned to move the bill on Monday, February 22.                     
  There  being  no   further  business  to  come   before  the                 
  committee, the meeting was adjourned at 3:30 p.m.                            

Document Name Date/Time Subjects