00 HOUSE BILL NO. 292 01 "An Act relating to civil actions; amending Alaska Rules of Civil Procedure 49 02 and 68; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 09.10 is amended by adding a new section to read: 05 Sec. 09.10.052. CERTAIN ACTIONS THAT MUST BE BROUGHT IN SIX 06 YEARS. (a) Notwithstanding AS 09.10.140, a person may not bring an action for 07 personal injury, death, or property damage unless the action is brought within six years 08 of the earlier of 09 (1) the date a product alleged to have caused the personal injury, death, 10 or property damage was purchased; or 11 (2) the date of the last act alleged to have caused the personal injury, 12 death, or property damage. 13 (b) This section does not apply if 14 (1) the personal injury, death, or property damage was caused 01 intentionally; 02 (2) facts that would give notice of a potential cause of action are 03 intentionally concealed; or 04 (3) a shorter period of time for bringing the action is imposed under 05 another provision of law. 06 * Sec. 2. AS 09.10 is amended by adding a new section to read: 07 Sec. 09.10.065. LIMITATION ON ACTIONS AGAINST HEALTH CARE 08 PROVIDERS. (a) Notwithstanding AS 09.10.140, an action based on professional 09 negligence may not be brought against a health care provider unless 10 (1) the action is brought within two years from the date of the alleged 11 negligent act or omission; or 12 (2) if the injured person is, on the date of the alleged negligent act or 13 omission less than six years of age, the action is brought before the person's eighth 14 birthday. 15 (b) The limitation imposed under (a) of this section is tolled during any period 16 in which there exists 17 (1) fraud, including fraud or collusion by a parent, guardian, insurer, 18 or health care provider, resulting in the failure to bring an action on behalf of an 19 injured minor; 20 (2) intentional concealment of facts that would give notice of a 21 potential action; or 22 (3) the undiscovered presence of a foreign body, that has no therapeutic 23 or diagnostic purpose or effect, in the body of the injured person and the action is 24 based on the presence of the foreign body. 25 (c) In this section, 26 (1) "health care provider" has the meaning given in AS 09.55.560; 27 (2) "professional negligence" means a negligent act or omission by a 28 health care provider in rendering professional services; 29 (3) "professional services" means services provided by a health care 30 provider that are within the scope of services for which the health care provider is 31 licensed, and that are not prohibited under the health care provider's license or by a 01 hospital in which the health care provider practices. 02 * Sec. 3. AS 09.10.070 is amended to read: 03 Sec. 09.10.070. ACTIONS TO BE BROUGHT IN TWO YEARS. A [NO] 04 person may not bring an action (1) for libel, slander, assault, battery, seduction, or 05 false imprisonment [, OR FOR ANY INJURY TO THE PERSON OR RIGHTS OF 06 ANOTHER NOT ARISING ON CONTRACT AND NOT SPECIFICALLY 07 PROVIDED OTHERWISE]; (2) upon a statute for a forfeiture or penalty to the state; 08 or (3) upon a liability created by statute, other than a penalty or forfeiture; unless 09 commenced within two years. 10 * Sec. 4. AS 09.10 is amended by adding a new section to read: 11 Sec. 09.10.075. LIMITATION ON ACTIONS INVOLVING INJURY TO 12 PERSON OR PROPERTY. (a) Notwithstanding AS 09.10.140, a person may not 13 bring an action for personal injury, death, or property damage unless the action is 14 brought within two years of the accrual of the action. 15 (b) This section does not apply if a shorter period of time for bringing the 16 action is imposed under another provision of law. 17 * Sec. 5. AS 09.17.010(a) is amended to read: 18 (a) In an action to recover damages for personal injury or wrongful death 19 [BASED ON NEGLIGENCE], damages for noneconomic losses shall be limited to 20 compensation for pain, suffering, inconvenience, physical impairment, disfigurement, 21 loss of enjoyment of life, and other nonpecuniary damage. 22 * Sec. 6. AS 09.17.010(b) is amended to read: 23 (b) The amount of damages awarded by a court or a jury under (a) of this 24 section may not exceed $500,000 for each [CLAIM BASED ON A] separate incident 25 or injury. 26 * Sec. 7. AS 09.17.020 is amended to read: 27 Sec. 09.17.020. PUNITIVE DAMAGES. Punitive damages may not be 28 awarded in an action, whether in tort, contract, or otherwise, unless supported by clear 29 and convincing evidence of malice and conscious acts showing disregard of another 30 person by the person from whom the punitive damages are sought. 31 * Sec. 8. AS 09.17.020 is amended by adding a new subsection to read: 01 (b) The amount of punitive damages awarded by a court or jury under (a) of 02 this section may not exceed three times the amount of compensatory damages awarded 03 or $200,000, whichever amount is greater. 04 * Sec. 9. AS 09.17.030 is amended to read: 05 Sec. 09.17.030. DAMAGES RESULTING FROM COMMISSION OF A 06 CRIME. A person who suffers personal injury or death may not recover damages for 07 the personal injury or death if the injuries or death occurred while the person was 08 engaged in the commission of a crime [FELONY, THE PERSON HAS BEEN 09 CONVICTED OF THE FELONY, INCLUDING CONVICTION BASED ON A 10 GUILTY PLEA OR PLEA OF NOLO CONTENDERE,] and the crime [FELONY] 11 substantially contributed to the injury or death. This subsection [SECTION] does not 12 affect a right of action under 42 U.S.C. 1983. 13 * Sec. 10. AS 09.17.030 is amended by adding a new subsection to read: 14 (b) This section does not apply to a person who suffers personal injury or 15 death if the person liable for the damages was engaged in the commission of a crime 16 at the time the personal injury or death occurred and the crime substantially 17 contributed to the injury or death. 18 * Sec. 11. AS 09.17.040(a) is amended to read: 19 (a) In every case where damages for personal injury or death are awarded by 20 the court or jury [,] 21 (1) the verdict shall be itemized between economic loss and 22 noneconomic loss, if any, as follows: 23 (A) [(1)] past economic loss; 24 (B) [(2)] past noneconomic loss; 25 (C) [(3)] future economic loss; 26 (D) [(4)] future noneconomic loss; [AND] 27 (E) [(5)] punitive damages; and 28 (2) the amount awarded for past or future economic and 29 noneconomic loss shall be reduced by the amount of federal and state income tax 30 that would be paid on the amount awarded under tax rates in effect on the date 31 of the injury or death. 01 * Sec. 12. AS 09.17.040(d) is amended to read: 02 (d) In an action to recover damages, the court shall, at the request of a [AN 03 INJURED] party, enter judgment ordering that amounts awarded a judgment creditor 04 for future damages be paid to the maximum extent feasible by periodic payments 05 rather than by a lump-sum payment. If a portion of the judgment awarded is owed 06 to an attorney under a contingent fee agreement, that portion of the judgment 07 shall be reduced to present value and paid in a lump sum. 08 * Sec. 13. AS 09.17.040(f) is amended to read: 09 (f) A judgment ordering payment of future damages for personal injury or 10 death by periodic payment shall specify the recipient, the dollar amount of the pay- 11 ments, including any increases in future payments for anticipated inflation, the 12 interval between payments, and the number of payments or the period of time over 13 which payments shall be made. Payments may be modified only in the event of the 14 death of the judgment creditor, in which case payments may not be reduced or 15 terminated, but shall be paid to persons to whom the judgment creditor owed a duty 16 of support, as provided by law, immediately before death. In the event the judgment 17 creditor owed no duty of support to dependents at the time of the judgment creditor's 18 death, the money remaining shall be distributed in accordance with a will of the 19 deceased judgment creditor accepted into probate or under the intestate laws of the 20 state if the deceased had no will. 21 * Sec. 14. AS 09.17.070 is repealed and reenacted to read: 22 Sec. 09.17.070. COLLATERAL BENEFITS. (a) Except when the collateral 23 source is a federally funded program that by law must seek subrogation and except for 24 death benefits paid under life insurance, a claimant in an action for personal injury or 25 death may only recover damages that exceed amounts received by the claimant, or that 26 with reasonable probability will be received in the future by the claimant, as 27 compensation for the injuries from collateral sources, whether private, group, or 28 governmental, and whether contributory or noncontributory. 29 (b) In an action for personal injury or death, a person defending a claim may 30 introduce into evidence an amount paid or payable as a benefit to the claimant as a 31 result of the personal injury or death under 42 U.S.C. 301 - 1397 (Social Security Act); 01 a state or federal disability or workers' compensation act; health, sickness, or income-disability insurance; insurance 02 that provides health benefits or income-disability 03 coverage; and a contract or agreement of a group, organization, partnership, or 04 corporation, or other collateral source, to provide, pay for, or reimburse the cost of 05 medical, hospital, dental, or other health care services or lost wages. If a person 06 defending a claim elects to introduce evidence described in this subsection, the 07 claimant may introduce evidence of the amount that the claimant has paid or 08 contributed to secure the claimant's right to an insurance or contractual benefit 09 introduced by the person defending the claim as evidence. 10 (c) Unless evidence of a collateral source has already been introduced under 11 (b) of this section, evidence of a collateral source, other than a federal program that 12 by law must seek subrogation and a death benefit paid under life insurance, is only 13 admissible after the fact finder has rendered an award. The court may take into 14 account the value of the claimant's rights to coverage exhausted or depleted by 15 payment of the collateral benefit by adding back a reasonable estimate of their 16 probable value, or by designating and holding for possible periodic payment under 17 AS 09.17.040 that amount of the award that would otherwise have been deducted, to 18 determine if the impairment of the claimant's rights actually takes place in the future. 19 (d) A person who provides a collateral benefit admissible under (a) of this 20 section may not bring an action based on the provision of the benefit and may not be 21 subrogated to the rights of a claimant against a person defending a claim. 22 * Sec. 15. AS 09.17.080(a) is amended to read: 23 (a) In all actions involving fault of more than one person [PARTY TO THE 24 ACTION], including third-party defendants and persons who have been released under 25 AS 09.17.091 [AS 09.16.040], the court, unless otherwise agreed by all parties, shall 26 instruct the jury to answer special interrogatories or, if there is no jury, shall make 27 findings, indicating 28 (1) the amount of damages each claimant would be entitled to recover 29 if contributory fault is disregarded; and 30 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 31 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 01 [AND] person who has been released from liability under AS 09.17.091, or other 02 person responsible for the damages to each claimant regardless of whether the 03 other person is subject to an action by the claimant [AS 09.16.040]. 04 * Sec. 16. AS 09.17.080(c) is amended to read: 05 (c) The court shall determine the award of damages to each claimant in 06 accordance with the findings, subject to a reduction under AS 09.17.091 07 [AS 09.16.040], and enter judgment against each party liable. The court also shall 08 determine and state in the judgment each party's equitable share of the obligation to 09 each claimant in accordance with the respective percentages of fault. 10 * Sec. 17. AS 09.17 is amended by adding a new section to read: 11 Sec. 09.17.091. EFFECT OF RELEASE. When a release or covenant not to 12 sue or not to enforce judgment is given in good faith to one of two or more persons 13 civilly liable for the same injury or the same wrongful death 14 (1) it does not discharge any of the other persons from liability for the 15 injury or wrongful death unless its terms so provide; but it reduces the claim against 16 the others to the extent of any amount stipulated by the release or the covenant, or in 17 the amount of the consideration paid for it, whichever is the greater; and 18 (2) it discharges the person to whom it is given from all liability for 19 contribution to any other person. 20 * Sec. 18. AS 09.30.065 is amended to read: 21 Sec. 09.30.065. OFFERS OF JUDGMENT. At any time more than 10 days 22 before the trial begins either the party making a claim or the party defending against 23 a claim may serve upon the adverse party an offer to allow judgment to be entered in 24 complete satisfaction of the claim for the money or property or to the effect specified 25 in the offer, with cost then accrued. If within 10 days after the service of the offer the 26 adverse party serves written notice that the offer is accepted, either party may then file 27 the offer and notice of acceptance together with proof of service, and the clerk shall 28 enter judgment. An offer not accepted within 10 days is considered withdrawn and 29 evidence of that offer is not admissible except in a proceeding to determine the form 30 of judgment after verdict. If the judgment finally entered on the claim as to which an 31 offer has been made under this section is not more favorable to the offeree than the 01 offer, the interest awarded under AS 09.30.070 and accrued up to the date judgment 02 is entered shall be adjusted as follows: 03 (1) if the offeree is the party making the claim, the interest rate shall 04 be reduced by 50 [FIVE] percent a year; 05 (2) if the offeree is the party defending against the claim, the interest 06 rate shall be increased by 50 [FIVE] percent a year. 07 * Sec. 19. AS 09.30.070(a) is amended to read: 08 (a) The rate of interest on judgments and decrees for the payment of money 09 is one percent above the 2nd Federal Reserve District discount rate in effect on 10 January 2 of the year in which the judgment or decree is entered [10.5 PERCENT 11 A YEAR], except that a judgment or decree founded on a contract in writing, 12 providing for the payment of interest until paid at a specified rate not exceeding the 13 legal rate of interest for that type of contract, bears interest at the rate specified in the 14 contract if the interest rate is set out in the judgment or decree. 15 * Sec. 20. AS 09.30.070 is amended by adding a new subsection to read: 16 (c) Prejudgment interest may not be awarded for future economic damages, 17 future noneconomic damages, or for punitive damages. 18 * Sec. 21. AS 09.55.535(k) is amended to read: 19 (k) The provisions of the Uniform Arbitration Act, AS 09.43.010 - 09.43.180, 20 apply to arbitrations under this section if they do not conflict with the provisions of 21 this section; arbitrations under this section shall be conducted in accordance with 22 procedures established by any rules of court which may be adopted and according to 23 provisions of AS 09.55.540 - 09.55.547 [AS 09.55.540 - 09.55.548] and AS 09.55.554 24 - 09.55.560, and AS 09.65.090. 25 * Sec. 22. AS 09.55.580(c) is amended to read: 26 (c) Except as provided in (g) of this section, in [IN] fixing the amount of 27 damages to be awarded under this section, the court or jury shall consider all the facts 28 and circumstances and from them fix the award at a sum which will fairly compensate 29 for the injury resulting from the death. In determining the amount of the award, the 30 court or jury shall consider but is not limited to the following: 31 (1) deprivation of the expectation of pecuniary benefits to the 01 beneficiary or beneficiaries, without regard to age thereof, that would have resulted 02 from the continued life of the deceased and without regard to probable accumulations 03 or what the deceased may have saved during the lifetime of the deceased; 04 (2) loss of contributions for support; 05 (3) loss of assistance or services irrespective of age or relationship of 06 decedent to the beneficiary or beneficiaries; 07 (4) loss of consortium; 08 (5) loss of prospective training and education; 09 (6) medical and funeral expenses. 10 * Sec. 23. AS 09.55.580 is amended by adding a new subsection to read: 11 (g) The amount awarded by the court or jury under this section for pecuniary 12 damages may not exceed $50,000. 13 * Sec. 24. AS 09.65 is amended by adding a new section to read: 14 Sec. 09.65.096. CIVIL LIABILITY OF HOSPITALS FOR NONEMPLOYEES. 15 (a) A hospital is not liable for civil damages as a result of an act or omission by a 16 health care provider who is not an employee of the hospital if the claim is based solely 17 on the grounds that the hospital 18 (1) is required to provide services by law or by regulation, or is subject 19 to regulation with respect to the provision of services; 20 (2) is required to comply or has voluntarily complied with the standards 21 of a public or private licensing or accreditation agency with respect to provision of 22 services; or 23 (3) has adopted bylaws, policies, or regulations governing the provision 24 of services. 25 (b) A hospital is not, solely for the reason that a health care provider was the 26 actual, apparent, or implied agent of the hospital, liable for civil damages caused by 27 the acts or omissions of a health care provider who is not the hospital's employee, if 28 the hospital provides notice that the health care provider is an independent contractor. 29 The notice required by this subsection must be posted conspicuously in all admitting 30 areas of the hospital, published at least annually in a newspaper of general circulation 31 in the area, and must be in substantially the following form: 01 Notice of Limited Liability 02 The following health care providers are independent contractors 03 and are not employees of the hospital: 04 (List specific health care providers) 05 The hospital is responsible for exercising reasonable care in granting staff privileges 06 to practice in the hospital, for reviewing those privileges on a regular basis, and for 07 taking appropriate steps to revoke or restrict privileges in appropriate circumstances. 08 The hospital is not otherwise liable for the acts or omissions of a health care provider 09 who is an independent contractor. 10 (c) This section does not preclude liability for civil damages that are the 11 proximate result of the hospital's own negligence or intentional misconduct. 12 (d) In this section, 13 (1) "health care provider" has the meaning given in AS 18.23.070, 14 except that it does not include a hospital or an employee of the hospital; 15 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 16 governmentally owned or operated hospital. 17 * Sec. 25. AS 09.17.010(c), 09.17.040(c) and AS 09.55.548 are repealed. 18 * Sec. 26. AS 09.17.080(a), as amended in sec. 15 of this Act, has the effect of amending 19 Alaska Rule of Civil Procedure 49 by requiring the jury to answer the special interrogatory 20 listed in AS 09.17.080(a)(2), regarding the percentages of fault to be allocated among the 21 parties. 22 * Sec. 27. AS 09.30.070(c), added by sec. 20 of this Act, has the effect of amending 23 Alaska Rule of Civil Procedure 68 by providing that prejudgment interest may not be awarded 24 for future economic or noneconomic damages. 25 * Sec. 28. APPLICABILITY. This Act applies to all causes of action accruing on or after 26 the effective date of this Act. 27 * Sec. 29. This Act takes effect July 1, 1993.