Legislature(1993 - 1994)
01/27/1994 01:45 PM Senate L&C
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE LABOR AND COMMERCE COMMITTEE
January 27, 1994
1:45 p.m.
MEMBERS PRESENT
Senator Tim Kelly, Chairman
Senator Steve Rieger, Vice-Chairman
Senator Bert Sharp
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Judy Salo
OTHERS PRESENT
Senator Drue Pearce
COMMITTEE CALENDAR
SENATE BILL NO. 254
"An Act relating to civil actions; amending Alaska Rules of Civil
Procedure 49, 68, and 82; and providing for an effective date."
EXECUTIVE ORDER NO. 89
"An Administrative Order transferring highway Weights and Measures
from the Department of Commerce and Economic Development to the
Department of Transportation and Public Facilities."
SENATE BILL NO. 212
"An Act relating to publications produced by state agencies and to
the procurement of property, property interests, and services by
state agencies."
SCHEDULED BUT NOT HEARD THIS DATE.
PREVIOUS SENATE COMMITTEE ACTION
SB 254 - NO PREVIOUS ACTION.
EO 88 - NO PREVIOUS ACTION.
WITNESS REGISTER
Roger Holmes, Attorney
705 Christensen Drive
Anchorage, Alaska 99501
POSITION STATEMENT: Supported SB 254.
Al Tamagui
7001 Oakwood Drive
Anchorage, Alaska 99507
POSITION STATEMENT: Supported SB 254.
Eric Sanders, Attorney
500 L Street
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 254.
Dr. D.R. Lehman, President-Elect
Alaska State Medical Association
700 Katlian
Sitka, Alaska 99835
POSITION STATEMENT: Supported SB 254.
Bonnie Nelson
White Beach Road
Chugiak, Alaska 99746
POSITION STATEMENT: Opposed SB 254.
Stephanie Galbraith-Moore
Municipality of Anchorage Law Department
632 West 6th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Deferred testimony.
Harry Sjoberg
Risk Management
Municipality of Anchorage
632 West 6th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Supported SB 254.
Stephen Conn, Executive Director
Alaska Public Interest Research Group
P.O. Box 1011093
Anchorage, Alaska 99510
POSITION STATEMENT: Opposed SB 254.
Mark Wilkerson, Attorney
510 L Street, #700
Anchorage, Alaska 99501
POSITION STATEMENT: Supported SB 254.
Brewster Jamieson, Attorney
550 W. 7th, Suite 1650
Anchorage, Alaska 99501.
POSITION STATEMENT: Supported SB 254.
Sharon Macklin
315 5th Street #8
Juneau, Alaska 99801
POSITION STATEMENT: Testified on SB 254.
Bruce Campbell, Commissioner
Dept. of Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 99801-7898
POSITION STATEMENT: Supported EO 89.
Jack Slama, Secretary/Treasurer
Teamsters Local 595
P.O. Box 102092
Anchorage, Alaska 99510
POSITION STATEMENT: Opposed EO 89.
Charles McKee
1508 W. 43rd, #7
Anchorage, Alaska 99504
POSITION STATEMENT: Opposed EO 89.
ACTION NARRATIVE
TAPE 93-4, SIDE A
Number 001
CHAIRMAN TIM KELLY called the Labor and Commerce Committee meeting g
to order at 1:45 p.m.
SENATOR KELLY introduced SB 254 (CIVIL LIABILITY) and invited the
sponsor, SENATOR DRUE PEARCE, to review the bill.
SENATOR PEARCE explained there was a companion bill, HB 292, going
through the committee process, also.
SENATOR PEARCE reviewed her Sponsor Statement by quoting, "This
bill embodies a generally accepted fact that a person who has been
injured or suffered damages as a result of negligence on the part
of another has the right to be made whole. The bill ensures the
victims maintain the right to compensation; however, in today's
court system, we sometimes perceive the system as being capricious
and arbitrary. Occasionally, victims receive less compensation or
the negligent are required to reimburse more than common sense
dictates. This bill attempts to assure that those situations
become unusual."
SENATOR PEARCE listed the suggested changes to the Alaska Civil
Code:
(1) "Legal actions involving personal injury, death, or
property damage must be brought within six years ......... The six
year limitations would not apply if the injury, death, or property
damage was caused by an intentional act or if there was an
intentional concealment of the facts.
(2) Limits the time within a person can bring an action for
professional negligence against a health care provider to two
years, unless that person is less than six years old on the date of
injury, in which case the person has until their eighth birthday.
(3) Limits the time within which a person can bring an action
for personal injury, death, or property damage to two years after
the date the claimant could reasonably believe they had a claim.
(4) Extends the definition for non-economic loss to include
claims for wrongful death. Non-economic loss is further defined to
include the loss of consortium.
(5) Prevents someone from filing multiple claims over the
same incident to claim multiple awards over a single incident.
(6) Defines the standard a plaintiff must show to establish
"clear and convincing evidence" when trying to secure punitive
damages."
Number 051
SENATOR PEARCE continued:
(7) "Defines damages to be three times the amount of
compensatory damages awarded or $200 thousand, whichever is
greater.
(8) Prohibits a person from recovering damages if the person
suffers the damages while committing a felony.
(9) Subtracts from the award the amount of state and federal
taxes that would have been owed if the person had suffered no
damage. The victim is restored his or her original state, not
overcompensated. ......
(10) Allows either party in the suit to require future damages
to be paid by periodic payment instead of a lump sum. Attorney
contingency would be reduced to present value and paid in a lump
sum. Periodic payments would include increases for anticipated
inflation.
(11) In the bill juries are made aware of any other awards and
collateral payments made to plaintiffs. The damages awarded have
collateral payments deducted. .....
(12) Provides for the reduction of the claim against other
parties when one person in a multiparty suit settles. ......
(13) Provides financial motivations for pretrial settlements.
(14) Ties the interest rate charged on judgements and decrees
to 3% above the federal discount rate.
(15) Stipulates that an award for economic loss is limited to
$10,000 when the deceased is not survived by a spouse, children, or
other dependents.
(16) Prohibits the award of attorney fees in a civil action
for personal injury, death, or property damage.
and (17) Limits the civil liability of a hospital for an act or
omission of a health care provider who is not an employee of the
hospital when the claim is only based on the actions of the health
care provider and the hospital publishes which health care
providers are independent contractors."
SENATOR PEARCE noted the attached list of organizations that to
date are supporting the tort reform measure before the legislature
this year. She suggested other organizations would join the list
as information is spread about the bill.
SENATOR PEARCE explained the technical work on the bill would be
done by others.
SENATOR KELLY introduced ROGER HOLMES, the lead attorney in support
of the bill, testifying on teleconference from Anchorage, and the
lead attorney in opposition, ERIC SANDERS, who will be testifying
from Juneau.
MR. HOMES said, unless there were technical questions about the
bill, he would prefer to be a resource person and let others from
the organization, Alaskans for Liability Reform, testify.
Number 102
Next, SENATOR KELLY called on AL TAMAGUI, to testify in Anchorage.
MR. TAMAGUI testified in support of SB 254, praised the research,
and noted the number of organizations working with the committee on
the bill. He asked that the bill be moved from committee.
ERIC SANDERS, an attorney from Anchorage testifying in Juneau,
reminded SENATOR PEARCE of her involvement in civil justice and
civil rights, and her activity in the legislation that was passed
in 1986. He recalled a meeting at the end of the session of that
year when there was a conference committee on the tort reform bill
in which she called all of the players together for a commitment
that everyone was satisfied with the compromise that had been
reached.
MR. SANDERS had a clear recollection that not only the people that
were appearing on behalf of the potential victims of the state, but
also the Citizens Coalition for Tort Reform made a commitment to
SENATOR PEARCE that they were satisfied with the compromise. In
view of that, MR. SANDERS expressed surprise at the language in the
introductory part of her presentation that the legislation of 1986
fell short of accomplishing the goals of the legislature. He said
the problems of 1986 still exist in 1993.
MR. SANDERS returned the committee to what was happening in 1986.
There was an alleged crisis, a position taken by the Citizens
Coalition for Tort Reform that required immediate attention by the
legislature because insurance rates were sky-rocketing, businesses
were closing, and people couldn't get insurance or do business in
the state. MR. SANDERS described the solution sought by the group
was to limit victim's rights. He said there was no crisis at the
time, but legislation was passed irregardless.
Number 157
MR. SANDERS said he doesn't hear anyone claiming any sort of
insurance crisis, and he declared it was a bill to inhibit, limit,
restrict, and get rid of more victim's rights. He wondered what
would be lost in exchange for giving up their rights and suggested
the citizens in Alaska would be giving up their civil rights.
MR. SANDERS quoted MR. TAMAGUI as saying it is a fair bill, and he
asked, "Fair to whom." The wrong doer or the victim? MR. SANDERS
agreed it was fair to the wrong doer, but he preferred to discuss
what was in the best interests of the citizens of the State and the
constituents.
MR. SANDERS quoted the introduction to the bill, given by SENATOR
PEARCE, that the goals and purpose of SB 254 was to create a more
equitable distribution of the cost and risk of injury, reduce costs
associated with civil justice, while assuring adequate compensation
for injured people. He strongly disagreed with her introduction to
the bill, and he proposed to go through the bill to describe the
destruction of the rights of citizens to be compensated fairly for
their injuries as the result of negligence.
Number 200
MR. SANDERS denied there was anything in SB 254 that created rights
for victims or enables them to recover easier than now. He labeled
it anti-victim legislation and directed attention to Section 23 on
page 11. He said Section 23 was the $10 thousand cap on pecuniary
loss or death, and he claimed it was unique for Alaska to put the
price of $10 thousand on one of its citizens, possibly a child. He
discussed the possible justification for this section saying it
sends the wrong message.
MR. SANDERS said the present law allows people to recover their
future economic earnings minus their consumption, and he didn't
agree that people end up with some type of outrageous windfall.
MR. SANDERS next directed attention to Section 2, actions that must
be brought in six years, and he gave the example of someone injured
in a crash of a plane. The plane was over six years old, and no
one in Alaska could recover damages. He said if the six year old
plane crashed in the State of Washington, the victims could recover
damages. He claimed Alaska would be protecting the manufacturer of
a defective product, such as cars manufactured before the 6 years.
Number 258
MR. SANDERS gave the example of women who had taken DES in the
1950's and 60's to prevent miscarriages, but it turned out to cause
cancer in their daughters. Under SB 254, he said these claims
would not be viable, since the defect in the product was not
apparent until after six years.
MR. SANDERS then noted Sections 12 and 13 deals with mandatory
periodic payments, and he said these provisions had been discussed
in 1986. He said the change made in the bill would preclude an
injured party from making the decision to receive payments in the
future; it would now be at the discretion of the defendants. He
touched on the lump sum payment, medical costs, and lost income and
explained how these would be controlled by the person who caused
the injury.
Number 313
MR. SANDERS projected problems with a tort feasor, who stops
payments before the plaintiff is paid, and he gave the example of
the State's litigation with Executive Life Insurance Company, the
major broker of structured settlements in 1986. He explained he
had placed clients in Executive Life Insurance Company who are not
now being compensated as expected under the contract. He claimed
the bill would make the victim take the risk the company is going
to be there when the payments are to be made in the future.
MR. SANDERS explained there was a twist which says there shall be
increases for anticipated inflation, and he suggested this could
spawn a multitude of hearings on inflation rates after the verdict.
He listed a series of possible disputes in deciding these rates,
and he claimed it would cause havoc in the court system.
Number 374
MR. SANDERS outlined problems about the tax consequences of
structured settlements and suggested the legislation be checked
from a tax standpoint.
MR. SANDERS drew attention to Section 14, collateral benefits, and
suggested this section would work adversely to a victim, to assure
the victim is not justly compensated. As an example, he explained
under current law, workers compensation benefits, and third party
claims, and how the legislation would benefit the wrong doer at the
expense of the innocent party, who would not be compensated fully.
Number 399
Next, MR. SANDERS turned to Section 15, which would allow fault
apportioned to any person, whether or not that party could be named
as a party to the action. He reviewed joint and several liability
which was modified by the 1986 Legislature, again changed in 1988,
and proposed for a fourth change in SB 254, which he explained
would be unfair to the victims.
MR. SANDERS said there were situations where the State is going to
be immune, and gave road design as an example. He described
phantom defendants which lead to inequities in how claims are
litigated.
MR. SANDERS concluded by stressing the legislation is ill-conceived
and recommended a careful look at the anti-constituent provisions.
SENATOR RIEGER referred to the argument on structured settlements
and suggested it was all ready in law, and he read the bill as an
additional protection for the plaintiff rather than the defendant.
He also spoke in favor of the process of anticipated inflation and
thought there might be some standardized language that addresses
inflation, such as indexes. He questioned MR. SANDERS on some
aspects of existing law concerning judgements.
MR. SANDERS addressed his second point on structured settlements,
and he quoted the federal law as being tax free if the victim
doesn't take constructive receipt of the settlement money. He
described, in an example, the implication of various settlements in
relation to taxes. He explained the language on structured
settlements is very complicated, so there are seminars given on how
to draft a structured settlement agreement to avoid any tax
consequences on the settlement.
SENATOR RIEGER and MR. SANDERS continued to discuss the intricacies
of structured settlements, taxes, constructive receipts, and the
IRS. MR. SANDERS repeated his charge the legislation would enable
the defendant to decide on the payment rather than the victim. He
voiced his opposition to allowing the defendant to define the terms
under which the victim is paid.
Number 499
SENATOR LINCOLN asked MR. SANDERS for a summary of his opposition
to the legislation, and he provided a written summary to the
committee members. He explained the summary was somewhat out of
date because the legislation had changed since the summary was
introduced. SENATOR KELLY said the summary would be included in
the bill packets.
MR. SANDERS didn't see anything in the legislation for victims and
asked for provisions he might have missed.
SENATOR LINCOLN questioned the six year limitation on legal action,
and SENATOR KELLY said he would ask an attorney testifying in
support of the bill in Anchorage, ROGER HOLMES.
MR. SANDERS agreed to meet with SENATOR LINCOLN at her convenience
to explain his side of the legislation.
SENATOR KELLY then went to Sitka, to hear from DR. D.R. LEHMAN, who
was testifying, not only as a doctor, but as President-Elect of the
Alaska State Medical Association.
DR. LEHMAN introduced himself as being in practice since 1976 and
strongly urged support for the passage of SB 254. He declared the
present tort system is neither fair nor just and has become little
more than a lottery to wring thousands or millions of dollars with
an injury.
DR. LEHMAN explained he was board certified and has never been
sued, but his malpractice premiums are approximately $30 thousand
per year, which he said was considerably higher than if he was a
plastic surgeon in Anchorage. He stated his premiums were high,
primarily because of the malpractice risk associated with
delivering babies. He explained he could be sued over one of the
babies until the child reaches the age of majority, plus three
years, and he gave what he called a bizarre example.
DR. LEHMAN blamed the current court system for the problems, and he
listed the hospitals throughout the state that have closed because
of the cost of malpractice insurance. He said doctors have quit
practicing in Alaska because of the unavailability of affordable
malpractice insurance. He described the additional tests and
procedures prescribed by doctors to "cover their ass," out of fear
of litigation.
DR. LEHMAN said tort reform had worked in other states, and he
urged speedy passage of SB 254.
Number 519
Next, SENATOR KELLY invited BONNIE NELSON to testify OFFNET from
Chugiak, and he asked the remainder of those testifying to limit
their testimony to three minutes.
MS. NELSON explained she has been involved in health reform for
fourteen years, and she complained there should be health coverage
for all people before there is tort reform. She thought there
should be data collected how much the doctors make to determine the
cost effectiveness of tort reform. She explained she was offended
when people claim there is not a health crisis.
Number 552
SENATOR KELLY said health care reform was a separate issue, and he
predicted the legislature would do something on health care reform
this session.
SENATOR KELLY returned to Anchorage to call on STEPHANIE GALBRAITH
to testify.
STEPHANIE GALBRAITH-MOORE identified herself with the Municipality
of Anchorage Law Department and deferred to HARRY SJOBERG, who is
in charge of Risk Management for Anchorage.
MR. SJOBERG explained he has been involved in risk management since
1962 and in Anchorage since 1967. He expressed general support for
SB 254 but suggested there were items that needed to researched.
He referred to Section 7 and praised the cap on non-economic awards
as an important item for the city. In Section 10, MR. SJOBERG said
they supported the new language as protection for the police.
MR. SJOBERG noted in Section 15, the city was supportive of the
clarification of fault, and he reviewed some of points in the tort
reforms of 1986 and 1988 which helped to reduce the claims of the
old deep pocket system .......
TAPE 93-4, SIDE B
Number 001
MR. SJOBERG credits SB 254 with reducing legal fees, lawsuits from
public entities, but he would like to see punitive relief for
public entity employees.
MR. SJOBERG spoke in rebuttal to MR. SANDERS saying the rules, as
far as insurance, have really changed. He explained many people
join insurance pools now and have large self-insured deductibles,
but he thought without tort reform, there could be a crisis again.
He reiterated the support from the Municipality of Anchorage for
tort reform, and he gave his reasons why he thought plaintiffs
lawyers, like MR. SANDERS, liked the present system.
STEPHEN CONN, from Anchorage, testified as the Executive Director
of the Alaska Public Interest Research Group, (AKPIRG) representing
about 4,000 consumers. MR. CONN said he is a retired professor of
justice at the University of Alaska, has taught legal history, and
is familiar with the history of torts over the years.
MR. CONN explained he had sought the advice of a number of other
people, who have had direct experience with both the medical and
legal process - both positive and negative - in order to direct the
action of AKPIRG. He discussed both health care reform and tort
reform and agreed with BONNIE NELSON, that it appears there is an
effort to coerce tort reform as a precondition to health care
reform. MR. CONN said this information had been in the newspapers
and articles from medical practitioners, who were blunt about the
subject.
MR. CONN said there is a crisis of uninsured Alaskans, who are in
desperate need of medical care, and he suggested a realignment of
priorities. He claimed the legislation for tort reform was based
on a crisis that does not exist and is premised on values to the
civil law system, that has yet to be determined.
MR. CONN referred to Paragraph 6 of Section 1 which, he said,
suggests a study by the attorney general that was used in previous
tort reform legislation, and he claimed tort reform did not need to
be fixed, since it wasn't broken.
Number 050
MR. CONN accused the legislation as being skewed in a very specific
way against justice in the civil offenses not only to the victims,
but in the case of punitive damages. He said they were the only way
to police the market place against defective products and other
malicious acts by large corporations, which can well afford to pay
minuscule judgements. He accused the drafters of SB 254 of
representing special interests who believe this is a legislature
that is prepared to buy-in to their special pleading.
MR. CONN said that AKPIRG is vigorously opposed to SB 254, and
believes it to be the most narrow piece of legislation that has
"come down the pike in Alaska." He said AKPIRG plans to work
strongly to encourage public participation of persons other than
those who stand to benefit.
MARK WILKERSON, an attorney in Anchorage, explained he practiced
primarily defense law, as well as plaintiff's work and was probably
speaking against his own self interest by supporting SB 254. He
described the crisis of insurance companies not being able to make
periodic payments and going out of business.
MR. WILKERSON referred to Section 12, saying the section does not
deal with structured settlements that occur before a judgement, so
it doesn't deal with cash receipts, cash repayment, but deals with
the judgement. He explained some of the ramifications of the lump
sum in relation to taxes and suggested it was fair to the victims.
MR. WILKERSON referred to Section 18, which he thought spoke to the
lawyers who try to get results for people on both sides of the
issue. He thought the section created a level playing field, and
he explained how it helps both sides of the lawsuit by forcing
reasonableness.
Number 133
SENATOR KELLY questioned, in a case where an offer is made from an
attorney to an attorney, is it incumbent upon an attorney to inform
his client of the offer. MR. WILKERSON explained how that lawyer
could get in trouble both ethically and legally if the client was
not informed of the offer.
SENATOR LINCOLN relayed a concern from constituents in Bush Alaska
concerning Section 2 on page 3 to MR. WILKERSON about the six year
limitation on legal claims, and whether the small aircraft flown in
the Bush, which are usually older than six years, preclude claims
in the event of a crash.
Number 167
MR. HOLMES explained SB 254, as written, would preclude a suit
against the aircraft manufacturer if the plane was more than six
years old; however, the operator, or maintenance personal, could be
sued. He also explained that manufacturers of those old aircraft
are no longer in the business because of their product liability
clause, and the planes are no longer for sale.
Additionally, SENATOR LINCOLN expressed concern for buildings in
the Bush, where it can take a number of years to complete the
building, and she asked about the liability. MR. HOLMES said, in
that case, the six years would begin with the date of the
certificate of occupancy.
SENATOR LINCOLN relayed another question in reference to page 6,
lines 10 and 11, to consider substituting convicted of instead of
attempting to commit on line 11.
MR. HOLMES said the substitution would push it back to the present
wording, and the new wording was precipitated by an incident in
Barrow, in which someone had a gun, the police came to the scene,
the police were fired upon, the police returned the fire, and the
assailant was killed. The Municipality of Bethel attempted to
invoke this statute for immunity, but immunity was denied because
the assailant was killed before he could be convicted, so this
change was patterned after an Arizona provision that would provide
immunity to the municipality.
SENATOR LINCOLN thought this erred on the other side as well and
said there should be some middle ground.
Number 215
SENATOR KELLY announced there would be about six more minutes of
testimony on this legislation before a recess, and he called on
BREWSTER JAMIESON, an attorney in Anchorage.
MR. JAMIESON said he practiced primarily defense law and is in
favor of the bill, but not because it might be in his self
interest. He pointed to Sections 19 and 20 as being important. He
began a discussion of prejudgment interest in Section 20, and he
gave an example of its importance in changing current law on future
non-economic damages.
MR. JAMIESON answered a previous question as to what was in it for
the victims, saying it was just and fair compensation for injuries
that are caused by the wrong doing of others. He said it would not
burden someone beyond their degree of fault and would take the
lottery out of the present system.
Number 271
In Juneau, SENATOR KELLY called on SHARON MACKLIN, representing the
Alaska Professional Design Council, a coalition of architects,
engineers, and land surveyors from across the State.
MS. MACKLIN referred to Section 2, that certain actions must be
brought in six years, to discuss some of the statements from
earlier testimony from MR. SANDERS, about an architect moving from
California to design a roof of a school which, after six years,
caved in because the snow loads were not factored into the
construction.
MS. MACKLIN explained an architect from California could move to
Alaska to design a structure only after they have passed the Alaska
licensing law and registered in Alaska. Within the law, there is
a requirement that they take an arctic engineering course to become
aware of things like snow loads and other Alaskan problems.
MS. MACKLIN explained it would be a structural engineer who would
be required to comply with the codes on a State and local level in
designing a roof in the arctic. She gave an extensive description
of the process and the liability.
Number 304
SENATOR KELLY closed the meeting for a five minute break.
SENATOR KELLY introduced EXECUTIVE ORDER NO. 89 (TRANSFER WEIGHTS
AND MEASURES TO DOTPF) and invited COMMISSIONER BRUCE CAMPBELL to
testify. SENATOR KELLY noted written testimony from the Associated
General Contractors of Alaska supporting EO 89.
COMMISSIONER CAMPBELL explained the Department of Transportation
and Public Facilities (DOTPF) is responsible for the design and
maintenance of the highway system in the State of Alaska, and he
said one of the most important features involved in design is the
weight of the loads carried by the bridges and pavement structures.
He also explained that DOTPF also has the responsibility for the
regulations concerning the sizes and weights of vehicles using the
highway system.
COMMISSIONER CAMPBELL quoted the laws of the State as stating the
Department of Commerce enforces the regulations that DOTPF
promulgates with regards to sizes and weights, and to some degree,
the Department of Public Safety presently enforces some of those
regulations.
COMMISSIONER CAMPBELL expressed the concern by DOTPF about the
weights, especially the overloads that use the pavement and bridge
structures throughout the State. He claimed the axle weights
allowed in Alaska are the most generous in Western United States,
allowing 38 thousand pounds on a tandem axle; whereas, the other
Western States are limited to less pounds.
Number 350
COMMISSIONER CAMPBELL explained there was concern on the national
level about the control of the weights on the highway system, and
he described the technology presently used is the Weigh in Motion
Scale System, which are electronic devices inserted in the highway
that not only weight trucks and other vehicles, but also size them
for axle configurations. He said DOTPF has twelve of these devices
in our highway system, and several more are to be inserted in the
next few years. He gave a broad description of the statistical
information obtained from the electronic devices, which he said
would be melded in with the platform scales, which are presently
operated by the Department of Commerce.
COMMISSIONER CAMPBELL explained this melding would also include the
portable scales, which would make three entities weighing trucks:
Commerce weighing at the platform scales, DOTPF weighing at the
Weight in Motion scales, and Public Safety weighing with their
portable scales. He claimed all the devices are busy weighing
legal trucks, while the trucks that are vastly overweight or over-
sized are escaping detection.
COMMISSIONER CAMPBELL outlined the problems: platform scales that
are only open about 39% of the time, and a permitting system that
DOTPF feels is too liberal. He warned the Federal Government is
presently promulgating rules nation wide for the national highway
system, which will put more restrictions on the states for over-
loads and require the integration of the weigh in motion system and
the fixed scales.
Number 400
COMMISSIONER CAMPBELL reviewed some statistics for the year ending
in April, 1993, when approximately 97,000 trucks were weighed on
platform scales, with citations issued for gross weight in the
number of 12, for axle overweight 14, for tire overweight 1, which
means 27 citations from 97,000 trucks. He said the weigh in motion
device indicates there are higher percentages of overweight trucks
on the highway system.
COMMISSIONER CAMPBELL cited the need for one entity in charge of
the weighing with all devices for better coverage, and he said it
would save money. He explained DOTPF had a larger labor pool
available than Commerce and could cross train personnel to operate
the scale house. He claimed DOTPF already does some of the
monitoring of the weigh in motion scales, because the scales pick
up other data than the weight of the vehicle.
COMMISSIONER CAMPBELL completed his presentation by suggesting
there would be more complete enforcement, and it would be cost
neutral. He urged support for EO 89 and offered to answer
questions.
SENATOR KELLY questioned the weigh in motion scales and whether
they were in place in Alaska now.
COMMISSIONER CAMPBELL explained there were twelve now in place, and
SENATOR KELLY asked if they were affected by ice or snow.
COMMISSIONER CAMPBELL explained there were two types, the
electronic and the bending plate, and he explained the bending
plate type was more reliable and less effected by weather. At
present, he said the weigh in motion scales were about one percent
accurate, but could be about ten percent off on a particular
vehicle. He said the technology is improving, but he described
ways to beat the weigh in motion scales. He said it would indicate
the trucks that need to be directed to the weigh scale.
Number 452
SENATOR KELLY asked if a speeding violation could be based on the
weigh in motion device, and COMMISSIONER CAMPBELL suggested asking
Public Safety for assistance. SENATOR KELLY asked MR. FINK to get
an answer from Public Safety. COMMISSIONER CAMPBELL explained the
technology was there to determine the speed of the vehicle, but he
didn't know if the law would allow the information to be used.
SENATOR RIEGER referred to page 4, lines 22 through 25, and the
penalty of $.05 for each pound of over weight and asked it was
being reinstated in DOTPF. COMMISSIONER CAMPBELL thought he was
correct, but he had not compared the provisions.
SENATOR RIEGER asked the commissioner about the adequacy of the
nickel a pound penalty. COMMISSIONER CAMPBELL opined it was a bit
low by today's standards, but he said the real penalty on most
truckers for being overweight is loosing the revenue on the truck
when they have to stop, unload the truck, and go to the courthouse.
SENATOR KELLY expressed concern that legislation was being enacted
by executive order, and in effect, changing Alaska state law. He
asked MR. FINK to run the legislation by TAMARA COOK, Director for
the Division of Legal Services for her opinion.
SENATOR RIEGER expressed the same concern and directed attention to
the Section 5 repealers to question whether new law was being put
in the legislation.
Number 496
SENATOR KELLY thanked COMMISSIONER CAMPBELL for his testimony and
asked him to stand by for questions.
SENATOR KELLY turned to Anchorage and invited JACK SLAMA to
testify.
(Verbatim testimony from JACK SLAMA.)
MR. SLAMA - "You're going to have to bear with me, this is the
first opportunity I've had to do a conference such as this. I'm
here to testify, ladies and gentlemen, against EO 89. I am the
Secretary/Treasurer of Teamsters Local 959. We have collective
bargaining agreements with air carriers, water carriers, rail
carriers, and road carriers. We are intimately involved in the
field of transportation.
We represent employees driving company equipment. We represent
employees who are owner/operators. We drive and operate trucks of
all sizes from solo trucks, small, duel axle, single axle, double,
triples, low-boys, tankers, mixer trucks, gravel trucks. We
operate up and down the Pipeline, through one of the strictest
oversight by ALYESKA Pipeline and their various contractors, and we
do transport the most important commodity of all and that's
children with our bus drivers.
What with our expertise, I guess I should commend the Department of
Transportation for making an effort here. Considering our
expertise, the Department of Transportation just doesn't call.
Our local works very close with the Department of Weights and
Measures, with the ATA, FRANK JEALOUS, our employers. We even work
very closely with the Federal Highway Administration, USDOT. I
send representatives out on a regular basis to meet with federal
officials in their design and their efforts towards establishing
federal regulations.
But you know something, the department just doesn't call. This
administration does not care, I guess, to hear from an organization
that I think has a vested interest in this industry. This industry
is in trouble, and this is not a fix. This is a Band Aid on a
lesion.
As we speak today, water carriers are being hammered by the Mayor
of Anchorage, by the Chamber of Commerce and the surveys sent out
to Chamber members. They're angry over the proposed rate increase,
implemented by SeaLand and Tote, and they're upset over hidden
contracts. The customers and shippers, people alike who trade in
and out of the State of Alaska, and intra-state, within the State
of Alaska. They're upset over not being able to put their hands on
a source, or a solution.
The railroad, as we speak, is the biggest violator of hidden
contracts. Frank Turpin, when he took over the head of the
railroad, and Frank's a good friend of mine. I like him as an
individual, but he advertized in the media that he was going to
take all truck traffic, intra-state where the railroad ran, and put
it on the rail.
In essence, what he was telling the truckers, the people in the
industry, the railroad is going to do your work. And not until the
hotels and motels got hurt by the fact that the railroad was now
going to get into the hotel business if people wake up to the fact,
the railroad, a state entity was competing with private enterprise.
In fact, your DOT commissioner resides on the Board of Directors
for the Alaska Railroad.
There have been efforts made by advisory committees, one in
particular, The Alaska Commercial Truck Transport Advisory
Committee, made up of industry peers.
We participated, employers participated, the ATA, the police
enforcement agencies participated, and yes, and for awhile, the DOT
had a representative there, but at one point he withdrew, claiming
it was a waste of time.
And visibly, and most graphically, the article was in the
newspaper, the DANIEL MAULE article, having to with his accident on
August of 92, and the sentencing that went on recently. The News
identified MAULE as inexperienced trucker with a long history of
violations. JUDGE JOHNSTONE referred to his truck as an especially
dangerous instrument, and MAULE, himself, said he was a product of
the industry - you either break the law or you're out of a job. I
pray to God, that possibly out of this may come change.
The current program doesn't work, and I will agree with the office
of the DOT, but combining Weights and Measures and inspection
programs and policing programs is not the answer. It's just a
portion of it.
We need qualified people, not people in DOT being cross-trained.
We need qualified people that sit down and do a comprehensive study
with industry peers through the creation of a Governor's task force
and some dedicated funding to change what is going on today. It's
deregulated out there, people. Interstate, intra-state. Anybody
can get involved."
(While I changed the tape, MR. SLAMA described the size, weight,
and speed of the trucks on the highway.)
TAPE 93-5, SIDE A
Number 001
MR. SLAMA - "If nothing is done, as far as I'm concerned the LEDOUX
widow will sue not only Bonnie Jack's Trucking, the broker, DANIEL
MAULE, they should sue the State and every individual responsible
for neglecting this industry. And we, you have your constituents,
I have mine, we have an obligation to do something about it, and it
is not simply rolling Weights and Measures into DOT. I appreciate
your time."
SENATOR KELLY - "My understanding is, commissioner, that you and
MR. SLAMA are going to meet on Monday."
COMMISSIONER CAMPBELL - "That's correct."
SENATOR KELLY called on CHARLES MCGEE in Anchorage.
CHARLES MCKEE objected to the transfer of Weights and Measures
because of the RICO statutes.
The testimony was concluded on EO 89.
SENATOR KELLY returned SB 254 (CIVIL LIABILITY) to committee and
asked for a motion to move the bill.
SENATOR SHARP moved to pass SENATE BILL NO. 254 from committee with
individual recommendations. Without objections, so ordered.
There being no further business to come before the committee, the
meeting was adjourned at 3:25 p.m. by SENATOR KELLY.
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