Legislature(1993 - 1994)

02/04/1993 01:40 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               SENATE LABOR AND COMMERCE COMMITTEE                             
                        February 4, 1993                                       
                            1:40 p.m.                                          
                                                                               
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Senator Tim Kelly, Chairman                                                  
  Senator Steve Rieger, Vice-Chairman                                          
  Senator Drue Pearce                                                          
  Senator Georgianna Lincoln                                                   
  Senator Judy Salo                                                            
                                                                               
  OTHERS PRESENT                                                               
                                                                               
  Senator Bert Sharp                                                           
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
  SENATE BILL NO. 52                                                           
  "An   Act   relating  to   liability   insurance   and  bond                 
  requirements   for   guide-outfitters   or   marine   mammal                 
  guide-outfitters."                                                           
                                                                               
  SENATE BILL NO. 64                                                           
  "An Act  relating to  civil liability  for workplace  safety                 
  inspections; and providing for an effective date."                           
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
  SB 52 -  NONE                                                                
                                                                               
  SB 64 -  NONE                                                                
                                                                               
  WITNESS REGISTER                                                             
                                                                               
  Karl Luck, Director                                                          
  Division of Occupational Licensing                                           
  Department of Commerce & Economic Development                                
  P.O. Box 110806                                                              
  Juneau, Alaska 99811-0806                                                    
    POSITION STATEMENT:                                                        
                                                                               
  Chuck Gray                                                                   
  311 Slater Street                                                            
  Fairbanks, Alaska 99701                                                      
    POSITION STATEMENT: Supports SB 52.                                        
                                                                               
  Sandy Jamieson                                                               
  3 1/2 Mile Old Nenana                                                        
  Fairbanks, Alaska 99725                                                      
    POSITION STATEMENT: Supports SB 52.                                        
  David Morris                                                                 
  P.O. Box 81572                                                               
                                                                               
                                                                               
  Fairbanks, Alaska 99708                                                      
    POSITION STATEMENT: Supports SB 52.                                        
                                                                               
  Kim Daniels, Executive Director                                              
  Alaska Air Carriers Association                                              
  1117 E. 35, #102                                                             
  Anchorage, Alaska 99508                                                      
    POSITION STATEMENT: Opposed SB 52.                                         
                                                                               
  David P. Hutchens                                                            
  Alaska Rural Electric Cooperative Assn.                                      
  703 West Tudor Road #200                                                     
  Anchorage, Alaska 99503                                                      
    POSITION STATEMENT: Supported SB 52.                                       
                                                                               
  James E. Pfeifer, President                                                  
  Alaska National Insurance Company                                            
  7001 Jewel Lake                                                              
  Anchorage, Alaska 99502                                                      
    POSITION STATEMENT: Supported SB 52.                                       
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-8, SIDE A                                                            
  Number 001                                                                   
                                                                               
  CHAIRMAN TIM KELLY  called the Labor and  Commerce Committee                 
  meeting to order at 1:40 p.m.                                                
                                                                               
  SENATOR  KELLY  introduced SB  52  (GUIDE-OUTFITTER AIRCRAFT                 
  INSURANCE)  and  invited  the  prime  sponsor,  SENATOR BERT                 
  SHARP,  to  testify.    Before  SENATOR  SHARP'S  testimony,                 
  SENATOR KELLY distributed a committee substitute which would                 
  drop out the old first Section 1 of the bill.                                
                                                                               
  SENATOR SHARP explained  SB 52  would limit the  requirement                 
  for liability  insurance for  registered guides  doing their                 
  own flying, who  guide 5 or less hunts a  year and transport                 
  clients by aircraft less than thirty hours a  year.  He also                 
  explained the current insurance requirements are costly, and                 
  overly burdensome, for  small guide outfitters, particularly                 
  those  who conduct  just a  few hunts  a year in  the family                 
  airplane.                                                                    
                                                                               
  SENATOR SHARP asked  consideration for  the adoption of  the                 
  committee substitute.                                                        
                                                                               
  SENATOR KELLY called on KARL LUCK, director of the  Division                 
  of Occupational Licensing to testify.                                        
                                                                               
  Number 073                                                                   
                                                                               
  MR.  LUCK  limited his  comments to  Section  2 of  the bill                 
                                                                               
                                                                               
  citing  eighteen guide-outfitters  who would  fall  into the                 
  category as determined by the bill.   He said it would be  a                 
  limited problem for the state to track and follow the flight                 
  time, but might  present  some liability for the state.   He                 
  expressed concern over the message to the prospective hunter                 
  to let them know they would not covered.                                     
                                                                               
  SENATOR RIEGER  asked for additional information on tracking                 
  some details.                                                                
                                                                               
  MR. LUCK  explained how  his department  would be  tasked by                 
  various responsibilities  to follow  the application  of the                 
  legislation to a guides's contract, performance, or record.                  
                                                                               
  SENATOR KELLY opened the teleconference and asked CHUCK GRAY                 
  of Fairbanks to testify.                                                     
                                                                               
  Number 120                                                                   
                                                                               
  MR. GRAY testified in support of  the bill and mentioned the                 
  department's problem with record keeping  could be solved by                 
  accepting the  hunt records  from the  guide-outfitter.   He                 
  said the camp and aircraft insurance has raised the overhead                 
  expenses to the cost of the revenue from one hunt.  MR. GRAY                 
  claimed the small guide-outfitters offer the highest quality                 
  hunts,  and  that  he  had  hunted  for  35   years  without                 
  insurance.  He  said he  was going to  give up hunting  this                 
  year if the insurance requirements remained in effect.                       
                                                                               
  Also from Fairbanks was SANDY JAMIESON, who  testified, as a                 
  20 year  guide, didn't get insurance until  it was required.                 
  He  described  being  in  a  crunch  with  insurance,  fees,                 
  reallocation of guide  areas, and  the strict limitation  on                 
  the number of hunts.  He asked  for the flexibility of doing                 
  without insurance.                                                           
                                                                               
  Number 186                                                                   
                                                                               
  SENATOR  RIEGER  asked the  guides  who just  testified from                 
  Fairbanks about the insurance disclaimer being buried in the                 
  fine  print  of the  contract,  and  asked if  they  had any                 
  problem of having  it prominently  displayed.  MR.  JAMIESON                 
  suggested having it  in bold print on  the hunt record.   He                 
  said most  of his clients  were European, provide  their own                 
  insurance,  and  prefer  not  to   pay  for  other  client's                 
  insurance.                                                                   
                                                                               
  DAVID  MORRIS from Fairbanks  also supported  the bill.   He                 
  described how the increased restrictions  and overhead costs                 
  had limited  his profits.   He  thought, if  the guides  had                 
  gotten along without  any restrictions  for years, why  they                 
  needed them now.   MR. MORRIS  wanted to eliminate both  the                 
  aircraft and the camp insurance.                                             
                                                                               
                                                                               
  Number 225                                                                   
                                                                               
  SENATOR KELLY called on KIM  DANIELS, Executive Director for                 
  the Alaska  Air Carriers  Association, from  Anchorage.   MS                 
  DANIELS testified on behalf of the association membership in                 
  strong opposition to SB 52, and  gave some history about the                 
  need for continued liability insurance by all carriers.  She                 
  referred to  the testimony from  MR. GRAY,  who indicated  a                 
  willingness to take chances without carrying  insurance, and                 
  said the association  members felt an obligation to see that                 
  all passengers traveling  in Alaska are given  the necessary                 
  insurance protection.                                                        
                                                                               
  MS  DANIELS  thought   Section  2   would  give  an   unfair                 
  competitive advantage  to the guides and outfitters exempted                 
  from the insurance requirements.                                             
                                                                               
  SENATOR RIEGER moved  to amend  SB 52, and  he suggested  on                 
  page 1, line  14 "prominently displayed" should  be inserted                 
  before the  word statement.   On  the second  page, line  3,                 
  after subsection he moved  to add the words for  purposes of                 
  the subsection,  prominently displayed means, in bolder face                 
  type  than  the other  type  used in  the main  text  of the                 
  contract  on  the  front  page of  the  contract.    Without                 
  objections, it was placed in the new committee substitute.                   
                                                                               
  SENATOR  KELLY  asked  for  the   adoption  of  the  amended                 
  committee substitute.                                                        
                                                                               
  Number 259                                                                   
                                                                               
  SENATOR RIEGER moved to adopt CS FOR SENATE BILL NO. 52(L&C)                 
  as amended.  Without objections, so ordered.                                 
                                                                               
  SENATOR  PEARCE indicated her lack of  support for the bill,                 
  and  SENATOR RIEGER wanted to review the testimony.  SENATOR                 
  KELLY said the  bill would  be held for  the next  committee                 
  meeting on 2/9/93.                                                           
                                                                               
  SENATOR PEARCE asked the staff to  work with the sponsor and                 
  the air  carriers to determine the actual costs of liability                 
  insurance  in  the  $100  thousand  per  seat  range.    She                 
  expressed concern about allowing any aviation transportation                 
  for pay to happen without liability coverage.  SENATOR KELLY                 
  asked MR. FINK to work on the request.                                       
                                                                               
  Number 311                                                                   
                                                                               
  SENATOR KELLY moved on to SB 64 (INSURER IMMUNITY FOR SAFETY                 
  INSPECTIONS),  sponsored by  the Senate  Labor and  Commerce                 
  Committee, and gave some history  on this legislative intent                 
  in previous years.                                                           
                                                                               
                                                                               
  Number 311                                                                   
                                                                               
  SENATOR  KELLY  invited  DAVID  HUTCHENS,  representing  the                 
  Alaska Rural Electric Cooperative Association, to testify.                   
                                                                               
  MR. HUTCHENS explained  he also managed the  ARECA Insurance                 
  Exchange,  which  writes insurance  for  most of  the larger                 
  utilities in the state.  He reviewed the decision in the Van                 
  Biene v. ERA Helicopter, Inc. case in which it was concluded                 
  that  insurance companies  doing  safety inspections  on the                 
  work  site  for  the  employer  could  be sued  for  alleged                 
  negligent work site safety inspections.                                      
                                                                               
  MR. HUTCHENS described  the effect on those  doing work site                 
  inspections for the employers, which was to quit doing them,                 
  because his board  could not accept the  unlimited liability                 
  that would come from doing the work site safety inspections.                 
  Since the responsibility for the inspections had fallen back                 
  on the employers, he  thought some were doing a  good job in                 
  policing themselves,  but  others were  not  able to  do  an                 
  effective job.  As  a result, MR. HUTCHENS was  fearful that                 
  the  work site  in Alaska is  not nearly  as safe as  it was                 
  before the case in 1989, but the bill would  restore the law                 
  to what everyone thought it was before the Van Biene case in                 
  1989.                                                                        
                                                                               
  Number 337                                                                   
                                                                               
  SENATOR KELLY asked for some  perspective on the legislation                 
  in relation to  workers' compensation  insurance as a  trade                 
  off.   He paraphrased the  decision where someone  could get                 
  beyond that arrangement  and sue  an insurer, who  performed                 
  the safety inspection, if the  safety inspection was faulty.                 
                                                                               
                                                                               
  MR. HUTCHENS agreed  that was the problem, and he elaborated                 
  on  the  level  of  previous safety  services  most  of  the                 
  insurance  companies  have   provided  in  the  past.     He                 
  discussed,  with  the  committee,  the  danger  in  insuring                 
  without  performing a  safety inspection, and  MR. HUTCHENS'                 
  termed it a "crap shoot."                                                    
                                                                               
  Number 369                                                                   
                                                                               
  Testifying   from   Seattle,   Washington,  JAMES   PFEIFER,                 
  president  of Alaska  National Insurance  Company, read  the                 
  following  letter,  portions of  which  are included  in the                 
  minutes:                                                                     
                                                                               
  "This legislation (with the deletion of one key phrase) will                 
  help  restore  the  workers'   compensation  system  to  its                 
  original intent -- i.e. a no fault system.                                   
                                                                               
                                                                               
  As you know the workers' compensation system covers employee                 
  injuries whether  or not  the employee  is at  fault.   Even                 
  gross negligence on the  part of the employee does  not free                 
  the employer of liability.  In  return, the employer and its                 
  insurance carrier are  entitled to  exclusive remedy.   That                 
  is, the employer  or carrier  should not be  subject to  any                 
  liability  beyond  what  is  provided   under  the  workers'                 
  compensation act.                                                            
                                                                               
  If,  in  fact,   an  insurance   carrier  makes  a   mistake                 
  (intentional  or  otherwise)  in  a  safety  inspection, the                 
  employee is taken  care of  under the workers'  compensation                 
  system.  No need exists, nor  should there be any incentive,                 
  for an employee to reap windfall benefits.                                   
                                                                               
  If  an  insurance   carrier  displays  a  pattern   of  poor                 
  inspection  practices,   remedies  are  available   for  the                 
  Director of the Division of Insurance to address the matter.                 
  From a practical standpoint, however,  the market place will                 
  quickly come into  play and employers (or  the insured) will                 
  go elsewhere for coverage and safety services.                               
                                                                               
  I  strongly  urge  your  committee  to delete  the  language                 
  relative to "intentional misconduct."  As currently written,                 
  this language may appear to  embrace "motherhood" and "apple                 
  pie" but I assure you that such a belief is erroneous.                       
                                                                               
  First,  as I have already  pointed out, this additional club                 
  is  not needed.   The  important consideration  is that  the                 
  employee is already taken care of.                                           
                                                                               
  Second, this type  of language  invites frivolous causes  of                 
  action for which the  principal beneficiaries are plaintiffs                 
  and defense attorneys.                                                       
                                                                               
  The  problem  is   that  such  words  as   "intentional"  or                 
  "misconduct"  are issues of  fact and, therefore, ultimately                 
  would have to  be decided by a  judge or jury.  I  know I am                 
  being repetitious here but the workers' compensation  system                 
  was not  designed to  be adversarial  in determining  fault.                 
  Fault is not  supposed to be an issue.  Thus, I suggest that                 
  this language is inappropriate and respectfully request that                 
  it be removed.                                                               
                                                                               
  I appreciate  the  fact that  this  overall issue  is  being                 
  addressed   this  year   and   urge  that   this  corrective                 
  legislation  be  passed."   MR.  PFEIFER  offered  to answer                 
  questions.                                                                   
                                                                               
  Number 402                                                                   
                                                                               
  SENATOR RIEGER asked if the intent was to remove lines 9 and                 
  10 on page 1.   MR. PFEIFER didn't have a copy of  the bill,                 
  but  explained  it  would  be  the removal  of  "intentional                 
                                                                               
                                                                               
  misconduct," which, he said, would be the original intent of                 
  the workers' compensation system.                                            
                                                                               
  SENATOR RIEGER reviewed the supreme  court ruling report and                 
  asked   what   would   happen  if   an   insurance   carrier                 
  intentionally did  not pay what  was due under  the workers'                 
  compensation statutes.  He was  not comfortable with denying                 
  an employee the right to at least sue for actual damages.                    
                                                                               
  MR.  PFEIFER  said there  were avenues  to  be used  for the                 
  protection of the employee.                                                  
                                                                               
  Number 429                                                                   
                                                                               
  SENATOR LINCOLN, in reference to the position paper from the                 
  Department of  Commerce and  Economic Development,  wondered                 
  how  they  could  have  a   neutral  position  and  specific                 
  objections  to  the same  bill.   She  read portions  of the                 
  position paper to MR. PFEIFER to sustain her argument.                       
                                                                               
  SENATOR KELLY assured SENATOR LINCOLN the bill would be held                 
  over because  the committee must adjourn to  attend a caucus                 
  meeting.    He referred  her to  a  position paper  from the                 
  Legislative Council on the following  page, in answer to her                 
  objection.                                                                   
                                                                               
  MR. PFEIFER, in response to SENATOR RIEGER, said "if in fact                 
  an  experienced carrier did not  handle a claim properly, an                 
  employee could go before the board and the board could award                 
  as much as a 25% penalty against a carrier."                                 
                                                                               
  There  being  no   further  business  to  come   before  the                 
  committee, the meeting was adjourned at 2:10 p.m.                            
                                                                               
                                                                               

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