CSSSHB 58(FIN) AM: "An Act relating to civil actions; relating to independent counsel provided under an insurance policy; relating to attorney fees; amending Rules 16.1, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rule 702, Alaska Rules of Evidence; and amending Rule 511, Alaska Rules of Appellate Procedure."
00CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58(FIN) am 01 "An Act relating to civil actions; relating to independent counsel provided under 02 an insurance policy; relating to attorney fees; amending Rules 16.1, 41, 49, 58, 03 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rule 702, Alaska 04 Rules of Evidence; and amending Rule 511, Alaska Rules of Appellate Procedure." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. LEGISLATIVE INTENT. In enacting this bill, it is the intent of this 07 legislature as a matter of public policy to 08 (1) encourage the efficiency of the civil justice system by discouraging 09 frivolous litigation and by decreasing the amount, cost, and complexity of litigation without 10 diminishing the protection of innocent Alaskans' rights to reasonable, but not excessive, 11 compensation for tortious injuries caused by others; 12 (2) provide for reasonable, but not excessive, punitive damage awards against 13 tortfeasors sufficient to deter conduct and practices that harm innocent Alaskans while not 14 hampering a positive business environment by allowing excessive penalties;
01 (3) encourage individual savings and economic growth by fostering an 02 environment likely to control the increase of liability insurance rates to individuals and 03 businesses resulting in a savings to the state, municipalities, and private businesses that are 04 self-insured; 05 (4) encourage the traditionally recognized Alaska values of self-reliance and 06 independence by underscoring the need for personal responsibility in making choices and 07 personal accountability for the consequences of those choices; 08 (5) alleviate the high cost of malpractice insurance premiums that discourage 09 physicians, architects, engineers, attorneys, and other professionals from rendering needed 10 services to the public; 11 (6) ensure that hospitals that comply with the disclosure requirements set out 12 in this Act are not liable for the negligence of independent contractors; to this extent, this Act 13 is intended to overrule Jackson v. Powers, 743 P.2d 1376 (Alaska 1987); 14 (7) ensure that one of several tortfeasors is not held responsible for the 15 negligence of an employer; to this extent, this Act is intended to overrule Lake v. Construction 16 Machinery, Inc., 787 P.2d 1027 (Alaska 1990); 17 (8) enact a statute of repose that meets the tests set out in Turner Construction 18 Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988); 19 (9) ensure that in actions involving the fault of more than one person, the fault 20 of each claimant, defendant, third-party defendant, person who has been released from 21 liability, or other person responsible for the damages be determined and awards be allocated 22 in accordance with the fault of each, thereby overruling Benner v. Wichman, 874 P.2d 949 23 (Alaska 1994); and 24 (10) reduce the amount of litigation proceeding to trial by modifying the 25 allocation of attorney fees and court costs based on the offer of judgment and the final court 26 award, thereby providing a financial incentive to both parties to settle the dispute. 27 * Sec. 2. AS 06.05.473(h) is amended to read: 28 (h) After the payment of all other claims, including interest at the rate of 10.5 29 percent a year [ESTABLISHED UNDER AS 09.30.070], the department shall pay 30 claims that are otherwise valid but that were not filed within the time prescribed. 31 * Sec. 3. AS 09.10.050 is repealed and reenacted to read:
01 Sec. 09.10.050. Certain property actions to be brought in six years. Unless 02 the action is commenced within six years, a person may not bring an action for waste 03 or trespass upon real property. 04 * Sec. 4. AS 09.10 is amended by adding a new section to read: 05 Sec. 09.10.053. Contract actions to be brought in three years. Unless the 06 action is commenced within three years, a person may not bring an action upon a 07 contract or liability, express or implied, except as provided in AS 09.10.040, the 08 provisions of this section may be waived by contract, or as otherwise provided by law. 09 * Sec. 5. AS 09.10.055 is repealed and reenacted to read: 10 Sec. 09.10.055. Statute of repose of eight years. (a) Notwithstanding the 11 disability of minority described under AS 09.10.140(a), a person may not bring an 12 action for personal injury, death, or property damage unless commenced within eight 13 years of the earlier of the date of 14 (1) substantial completion of the construction alleged to have caused 15 the personal injury, death, or property damage; however, the limitation of this 16 paragraph does not apply to a claim resulting from an intentional or reckless disregard 17 of specific project design plans and specifications or building codes; in this paragraph, 18 "substantial completion" means the date when construction is sufficiently completed 19 to allow the owner or a person authorized by the owner to occupy the improvement 20 or to use the improvement in the manner for which it was intended; or 21 (2) the last act alleged to have caused the personal injury, death, or 22 property damage. 23 (b) This section does not apply if 24 (1) the personal injury, death, or property damage resulted from 25 (A) prolonged exposure to hazardous waste; 26 (B) an intentional act or gross negligence; 27 (C) fraud or fraudulent misrepresentation; 28 (D) breach of an express warranty or guarantee; or 29 (E) a defective product; in this subparagraph, "product" means 30 an object that has intrinsic value, is capable of delivery as an assembled whole 31 or as a component part, and is introduced into trade or commerce;
01 (2) the facts that would give notice of a potential cause of action are 02 intentionally concealed; 03 (3) a shorter period of time for bringing the action is imposed under 04 another provision of law; or 05 (4) the provisions of this section are waived by contract. 06 (c) The limitation imposed under (a) of this section is tolled during any period 07 in which there exists the undiscovered presence of a foreign body that has no 08 therapeutic or diagnostic purpose or effect in the body of the injured person and the 09 action is based on the presence of the foreign body. 10 * Sec. 6. AS 09.10.070(a) is amended to read: 11 (a) Except as otherwise provided by law, a [A] person may not bring an 12 action (1) for libel, slander, assault, battery, seduction, or false imprisonment, (2) 13 [OR] for personal [ANY] injury or death, [TO THE PERSON] or injury to the rights 14 of another not arising on contract and not specifically provided otherwise; (3) for 15 taking, detaining, or injuring personal property, including an action for its 16 specific recovery; (4) [(2)] upon a statute for a forfeiture or penalty to the state; or 17 (5) [(3)] upon a liability created by statute, other than a penalty or forfeiture; unless 18 the action is commenced within two years of the accrual of the cause of action. 19 * Sec. 7. AS 09.10.140(a) is amended to read: 20 (a) Except as provided under (c) of this section, if [IF] a person entitled to 21 bring an action mentioned in this chapter is at the time the cause of action accrues 22 either (1) under the age of majority, or (2) incompetent by reason of mental illness or 23 mental disability, the time of a disability identified in (1) or (2) of this subsection is 24 not a part of the time limit for the commencement of the action. Except as provided 25 in (b) of this section, the period within which the action may be brought is not 26 extended in any case longer than two years after the disability ceases. 27 * Sec. 8. AS 09.10.140 is amended by adding a new subsection to read: 28 (c) In an action for personal injury or death of a person who was under the age 29 of six years at the time of the injury or death, the time period before the person's sixth 30 birthday is not a part of the time limit imposed under AS 09.10.070(a) for commencing 31 the civil action.
01 * Sec. 9. AS 09.17.010 is repealed and reenacted to read: 02 Sec. 09.17.010. Noneconomic damages. (a) In an action to recover damages 03 for personal injury or wrongful death, all damage claims for noneconomic losses shall 04 be limited to compensation for pain, suffering, inconvenience, physical impairment, 05 disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary 06 damage. 07 (b) Except as provided under (c) of this section, the damages awarded by a 08 court or a jury under (a) of this section for all claims of a person, including a loss of 09 consortium claim, arising out of a single injury or death may not exceed $300,000. 10 (c) In an action for personal injury, the damages awarded by a court or jury 11 that are described under (b) of this section may not exceed $500,000 when the 12 claimant, as a result of the injury, 13 (1) is a hemiplegic, paraplegic, or quadriplegic and has permanent 14 functional loss of one or more limbs resulting from injury to the spine or spinal cord; 15 (2) has permanently impaired cognitive capacity and is incapable of 16 making independent, responsible decisions; 17 (3) has third degree burns over one half or more of the claimant's body; 18 or 19 (4) is totally blind. 20 (d) Multiple injuries sustained by one person as a result of a single incident 21 shall be treated as a single injury for purposes of this section. 22 * Sec. 10. AS 09.17.020 is amended to read: 23 Sec. 09.17.020. Punitive damages. Punitive damages may not be awarded in 24 an action, whether in tort, contract, or otherwise, unless supported by clear and 25 convincing evidence of malice or conscious acts showing deliberate disregard of 26 another person's rights by the person from whom the punitive damages are 27 sought. 28 * Sec. 11. AS 09.17.020 is amended by adding new subsections to read: 29 (b) Except as provided under (c) of this section, the amount of punitive 30 damages awarded by a court or jury under (a) of this section may not exceed three 31 times the amount of compensatory damages awarded or $300,000, whichever amount
01 is greater. 02 (c) The amount of punitive damages awarded by a court or jury under (a) of 03 this section may not exceed four times the amount of compensatory damages awarded 04 or $600,000, whichever amount is greater, if 05 (1) the wrongful conduct or omission arose in connection with a 06 commercial activity motivated by financial gain; and 07 (2) the likelihood of death or serious bodily injury from the commercial 08 activity was previously known by the person responsible for making policy decisions 09 relating to the commercial activity and the knowledge was gained from previous 10 instances of death or serious bodily injury arising from the same wrongful conduct or 11 omission, regardless of where the previous wrongful conduct or omission occurred. 12 (d) If a person receives an award of punitive damages, the court shall require 13 that 50 percent of the award be deposited into the general fund of the state. This 14 subsection does not grant the state the right to file or join a civil action to recover 15 punitive damages. 16 * Sec. 12. AS 09.17.040(a) is amended to read: 17 (a) In every case where damages for personal injury or death are awarded by 18 the court or jury, 19 (1) the verdict shall be itemized between economic loss and 20 noneconomic loss, if any, as follows: 21 (A) [(1)] past economic loss; 22 (B) [(2)] past noneconomic loss; 23 (C) [(3)] future economic loss; 24 (D) [(4)] future noneconomic loss; [AND] 25 (E) [(5)] punitive damages; and 26 (2) the amount of damages awarded shall be reduced by the 27 amount of federal and state income tax that would have been paid on damages 28 contained in the verdict under tax rates in effect on the date of the injury or 29 death; this paragraph does not apply to an award of damages if the damages are 30 taxable under federal or state law. 31 * Sec. 13. AS 09.17.040(d) is amended to read:
01 (d) In an action to recover damages, the court shall, at the request of a [AN 02 INJURED] party, enter judgment ordering that amounts awarded a judgment creditor 03 for future damages that exceed $100,000 be paid to the maximum extent feasible by 04 periodic payments rather than by a lump-sum payment. If a portion of the judgment 05 awarded is owed to an attorney under a contingent fee agreement, that portion 06 of the judgment shall be reduced to present value, if necessary, and paid in a 07 lump sum, and the remaining portion of the judgment shall be paid as provided 08 under this subsection. 09 * Sec. 14. AS 09.17.040(e) is amended to read: 10 (e) Except as provided in this subsection, if a judgment is paid by 11 structured settlement type periodic payments, the [THE] court shall [MAY] require 12 security be posted in the form of United States government obligations [,] in order 13 to ensure that funds are available as periodic payments become due. The court may 14 not require security to be posted if the state, a self-insured municipality, or an 15 authorized insurer, as defined in AS 21.90.900, acknowledges to the court its 16 obligation to discharge the judgment, provided that an authorized insurer must be 17 rated by two nationally recognized independent rating agencies to be in the two 18 highest categories of quality and financial soundness. If a judgment is paid by 19 annuity type period payments, the court shall require the annuity be purchased 20 from an authorized insurer that is rated by two nationally recognized independent 21 rating agencies to be in the two highest categories of quality and financial 22 soundness. The injured party shall determine whether a structured settlement or 23 an annuity is the source of the periodic payments. The injured party may not be 24 required to accept a structured settlement or annuity from the defendant's or 25 other party's insurer or from any affiliated companies of the insurer. 26 * Sec. 15. AS 09.17.040(f) is amended to read: 27 (f) A judgment ordering payment of future damages for personal injury or 28 death by periodic payment shall specify the recipient, the dollar amount of the 29 payments, including any increases in future payments for anticipated inflation, the 30 interval between payments, and the number of payments or the period of time over 31 which payments shall be made. Payments may be modified only in the event of the
01 death of the judgment creditor, in which case payments may not be reduced or 02 terminated, but shall be paid to persons to whom the judgment creditor owed a duty 03 of support, as provided by law, immediately before death. In the event the judgment 04 creditor owed no duty of support to dependents at the time of the judgment creditor's 05 death, the money remaining shall be distributed in accordance with a will of the 06 deceased judgment creditor accepted into probate or under the intestate laws of the 07 state if the deceased had no will. In this subsection, "inflation" means the change 08 in the consumer price index for United States city average, all urban consumers, 09 all items indices, compiled by the Bureau of Labor Statistics, United States 10 Department of Labor. 11 * Sec. 16. AS 09.17.070 is repealed and reenacted to read: 12 Sec. 09.17.070. Collateral benefits. (a) A claimant in an action for personal 13 injury or death may only recover damages that exceed amounts received by the 14 claimant, or that with reasonable probability will be received in the future by the 15 claimant, as compensation for the injuries from collateral sources, whether private, 16 group, or governmental, and whether contributory or noncontributory, except when 17 (1) the collateral source is a federally funded program that by law must 18 seek subrogation; 19 (2) the collateral source has a right of subrogation under federal law; 20 (3) the collateral source is the payment of a dependent child's medical 21 bills by the injured child's parent that does not result from insurance coverage; 22 (4) the benefit consists of death benefits paid under life insurance; or 23 (5) the benefit consists of workers' compensation benefits received 24 under AS 23.30. 25 (b) A person defending a claim may introduce into evidence at trial an amount 26 paid or payable as a benefit to the claimant as a result of the personal injury or death 27 under 42 U.S.C. 301 - 1397 (Social Security Act); a federal disability act; health, 28 sickness, disability, accident, or income-disability insurance; insurance that provides 29 health benefits or income-disability coverage; and a contract or agreement of a group, 30 organization, partnership, or corporation, or other collateral source, to provide, pay for, 31 or reimburse the cost of medical, hospital, dental, or other health care services,
01 disability, or lost wages. However, evidence of a collateral source described under 02 (a)(1) - (5) of this section may not be introduced into evidence at trial. If a person 03 defending a claim elects to introduce evidence described in this subsection, the 04 claimant may introduce evidence of the amount that the claimant has paid or 05 contributed to secure the claimant's right to the collateral benefit, including the cost 06 to the claimant resulting from depleted or exhausted coverage. 07 (c) A person who provides a collateral benefit admissible under (b) of this 08 section may not recover an amount against the claimant as reimbursement for those 09 benefits and may not be subrogated to the rights of a claimant against a person 10 defending a claim. 11 * Sec. 17. AS 09.17.080(a) is amended to read: 12 (a) In all actions involving fault of more than one person [PARTY TO THE 13 ACTION], including third-party defendants and persons who have been released 14 [UNDER AS 09.16.040], the court, unless otherwise agreed by all parties, shall instruct 15 the jury to answer special interrogatories or, if there is no jury, shall make findings, 16 indicating 17 (1) the amount of damages each claimant would be entitled to recover 18 if contributory fault is disregarded; and 19 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 20 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 21 [AND] person who has been released from liability, or other person responsible for 22 the damages to each claimant regardless of whether the other person, including 23 an employer, is or could have been named as a party to the action; in this 24 paragraph, other persons responsible does not include a person protected 25 from a civil action under AS 09.10.055 [UNDER AS 09.16.040]. 26 * Sec. 18. AS 09.17.080(b) is amended to read: 27 (b) In determining the percentages of fault, the trier of fact shall consider both 28 the nature of the conduct of each person [PARTY] at fault, and the extent of the 29 causal relation between the conduct and the damages claimed. [THE TRIER OF 30 FACT MAY DETERMINE THAT TWO OR MORE PERSONS ARE TO BE 31 TREATED AS A SINGLE PARTY IF THEIR CONDUCT WAS A CAUSE OF THE
01 DAMAGES CLAIMED AND THE SEPARATE ACT OR OMISSION OF EACH 02 PERSON CANNOT BE DISTINGUISHED.] 03 * Sec. 19. AS 09.17.080(c) is amended to read: 04 (c) The court shall determine the award of damages to each claimant in 05 accordance with the findings [, SUBJECT TO A REDUCTION UNDER 06 AS 09.16.040,] and enter judgment against each party liable. The court also shall 07 determine and state in the judgment each party's equitable share of the obligation to 08 each claimant in accordance with the respective percentages of fault as determined 09 under (a) of this section. Except as provided under AS 23.30.015(g), an 10 assessment of a percentage of fault against a person who is not a party may only 11 be used as a measure for accurately determining the percentages of fault of a 12 named party. Assessment of a percentage of fault against a person who is not a 13 party does not subject that person to civil liability in that action and may not be 14 used as evidence of civil liability in another action. 15 * Sec. 20. AS 09.17.900 is amended to read: 16 Sec. 09.17.900. Definition. In this chapter, "fault" includes acts or omissions 17 that are in any measure negligent, [OR] reckless, or intentional toward the person or 18 property of the actor or others, or that subject a person to strict tort liability. The term 19 also includes breach of warranty, unreasonable assumption of risk not constituting an 20 enforceable express consent, misuse of a product for which the defendant otherwise 21 would be liable, and unreasonable failure to avoid an injury or to mitigate damages. 22 Legal requirements of causal relation apply both to fault as the basis for liability and 23 to contributory fault. 24 * Sec. 21. AS 09.20 is amended by adding a new section to read: 25 Sec. 09.20.185. Expert witness qualification. (a) In an action based on 26 professional negligence, a person may not testify as an expert witness on the issue of 27 the appropriate standard of care unless the witness is 28 (1) a professional who is licensed in this state or in another state or 29 country; 30 (2) trained and experienced in the same discipline or school of practice 31 as the defendant or in an area directly related to a matter at issue; and
01 (3) certified by a board recognized by the state as having acknowledged 02 expertise and training directly related to the particular field or matter at issue; however, 03 this paragraph does not apply if a board does not exist that could certify the witness 04 in the particular field or matter at issue. 05 * Sec. 22. AS 09.30.065 is amended to read: 06 Sec. 09.30.065. Offers of judgment. At any time more than 10 days before 07 the trial begins, either the party making a claim or the party defending against a claim 08 may serve upon the adverse party an offer to allow judgment to be entered in complete 09 satisfaction of the claim for the money or property or to the effect specified in the 10 offer, with costs then accrued. If within 10 days after the service of the offer the 11 adverse party serves written notice that the offer is accepted, either party may then file 12 the offer and notice of acceptance together with proof of service, and the clerk shall 13 enter judgment. An offer not accepted within 10 days is considered withdrawn, and 14 evidence of that offer is not admissible except in a proceeding to determine the form 15 of judgment after verdict. If the judgment finally entered on the claim as to which an 16 offer has been made under this section is at least five percent, less [NOT MORE] 17 favorable to the offeree than the offer, the offeree, whether the party making the 18 claim or defending against the claim, shall pay all costs as allowed under the 19 Alaska Rules of Civil Procedure and shall pay reasonable actual attorney fees 20 incurred by the offeror from the date the offer was made, [THE INTEREST 21 AWARDED UNDER AS 09.30.070 AND ACCRUED UP TO THE DATE 22 JUDGMENT IS ENTERED SHALL BE ADJUSTED] as follows: 23 (1) if the offer was served no later than 60 days after both parties 24 made the disclosures required by the Alaska Rules of Civil Procedure the offeree 25 shall pay 100 percent of the offeror's reasonable actual attorney fees [OFFEREE 26 IS THE PARTY MAKING THE CLAIM, THE INTEREST RATE SHALL BE 27 REDUCED BY FIVE PERCENT A YEAR]; 28 (2) if the offer was served more than 60 days after both parties 29 made the disclosures required by the Alaska Rules of Civil Procedure but more 30 than 90 days before the trial began, the offeree shall pay 75 percent of the 31 offeror's reasonable actual attorney fees;
01 (3) if the offer was served 90 days or less but more than 10 days 02 before the trial began, the offeree shall pay 50 percent of the offeror's reasonable 03 actual attorney fees [OFFEREE IS THE PARTY DEFENDING AGAINST THE 04 CLAIM, THE INTEREST RATE SHALL BE INCREASED BY FIVE PERCENT A 05 YEAR]. 06 * Sec. 23. AS 09.30.065 is amended by adding new subsections to read: 07 (b) If an offeror receives costs and reasonable actual attorney fees under (a) 08 of this section, that offeror shall be considered the prevailing party for purposes of an 09 award of attorney fees under the Alaska Rules of Civil Procedure. Notwithstanding 10 (a) of this section, if the amount awarded an offeror for attorney fees under the Alaska 11 Rules of Civil Procedure is greater than a party would receive under (a) of this section, 12 the offeree shall pay to the offeror attorney fees specified under the Alaska Rules of 13 Civil Procedure and is not required to pay reasonable actual attorney fees under (a) of 14 this section. A party who receives attorney fees under this section may not also 15 receive attorney fees under the Alaska Rules of Civil Procedure. 16 (c) If an offeror makes more than one offer of judgment, the last offer served 17 on the adverse party shall be considered to be a revocation of any prior offer of 18 judgment. 19 * Sec. 24. AS 09.30.070(a) is amended to read: 20 (a) Notwithstanding AS 45.45.010, the [THE] rate of interest on judgments 21 and decrees for the payment of money, including prejudgment interest, is three 22 percentage points above the 12th Federal Reserve District discount rate in effect 23 on January 2 of the year in which the judgment or decree is entered [10.5 24 PERCENT A YEAR], except that a judgment or decree founded on a contract in 25 writing, providing for the payment of interest until paid at a specified rate not 26 exceeding the legal rate of interest for that type of contract, bears interest at the rate 27 specified in the contract if the interest rate is set out in the judgment or decree. 28 * Sec. 25. AS 09.30.070 is amended by adding a new subsection to read: 29 (c) Prejudgment interest may not be awarded for future economic damages, 30 future noneconomic damages, or punitive damages. 31 * Sec. 26. AS 09.50.280 is amended to read:
01 Sec. 09.50.280. Judgment for plaintiff; punitive damages. If judgment is 02 rendered for the plaintiff, it shall be for the legal amount found due from the state with 03 [LEGAL] interest as provided under AS 09.30.070 [FROM THE DATE IT BECAME 04 DUE] and without punitive damages. 05 * Sec. 27. AS 09.55.440(a) is amended to read: 06 (a) Upon the filing of the declaration of taking and the deposit with the court 07 of the amount of the estimated compensation stated in the declaration, title to the estate 08 as specified in the declaration vests in the plaintiff, and that property is condemned 09 and taken for the use of the plaintiff, and the right to just compensation for it vests in 10 the persons entitled to it. The compensation shall be ascertained and awarded in the 11 proceeding and established by judgment. The judgment must include interest at the 12 rate of 10.5 percent a year [SET OUT IN AS 09.30.070] on the amount finally 13 awarded that [WHICH] exceeds the amount paid into court under the declaration of 14 taking. The interest runs from the date title vests to the date of payment of the 15 judgment. 16 * Sec. 28. AS 09.55.535(k) is amended to read: 17 (k) The provisions of AS 09.43.010 - 09.43.180 (Uniform Arbitration Act) 18 apply to arbitrations under this section if they do not conflict with the provisions of 19 this section; arbitrations under this section shall be conducted in accordance with 20 procedures established by any rules of court which may be adopted and according to 21 provisions of AS 09.55.540 - 09.55.547, 09.55.554 - 09.55.560 [AS 09.55.540 - 22 09.55.548 AND AS 09.55.554 - 09.55.560], and AS 09.65.090. 23 * Sec. 29. AS 09.55.536(a) is amended to read: 24 (a) In an action for damages due to personal injury or death based upon 25 the provision of professional services by a health care provider, including a person 26 providing services on behalf of a governmental entity, when the parties have not 27 agreed to arbitration of the claim under AS 09.55.535, the court shall appoint within 28 20 days after filing of answer to a summons and complaint a three-person expert 29 advisory panel unless the court decides that an expert advisory opinion is not necessary 30 for a decision in the case. When the action is filed, the court shall, by order, 31 determine the professions or specialties to be represented on the expert advisory panel,
01 giving the parties the opportunity to object or make suggestions. 02 * Sec. 30. AS 09.55.536(c) is amended to read: 03 (c) Not more than 30 days after selection of the panel, the panel [IT] shall 04 make a written report to the parties and to the court, answering the following questions 05 and other questions submitted to the panel by the court in sufficient detail to explain 06 the case and the reasons for the panel's answers: 07 (1) Why did the claimant seek [WHAT WAS THE DISORDER FOR 08 WHICH THE PLAINTIFF CAME TO] medical care? 09 (2) Was a correct diagnosis made? If not, what was incorrect 10 about the diagnosis [WHAT WOULD HAVE BEEN THE PROBABLE OUTCOME 11 WITHOUT MEDICAL CARE]? 12 (3) Was the treatment or lack of treatment [SELECTED] appropriate? 13 If not, what was inappropriate about the treatment or lack of treatment [FOR 14 THE CASE]? 15 (4) Was the claimant injured during the course of evaluation or 16 treatment or by failure to diagnose or treat [DID AN INJURY ARISE FROM THE 17 MEDICAL CARE]? 18 (5) If the answer to question 4 is "yes," what [WHAT] is the nature 19 and extent of the medical injury? 20 (6) What specifically caused the medical injury? 21 (7) Was the medical injury caused by unskillful care? Explain. 22 (8) If a medical injury had not occurred, what would have been the 23 likely outcome of the medical case [HOW WOULD THE PLAINTIFF'S 24 CONDITION DIFFER FROM THE PLAINTIFF'S PRESENT CONDITION]? 25 * Sec. 31. AS 09.55.536(f) is amended to read: 26 (f) Discovery may not be undertaken in a case until the report of the expert 27 advisory panel is received or 60 days after selection of the panel, whichever occurs 28 first. However, the court may relax this prohibition upon a showing of good cause by 29 any party. If the panel has not completed its report within the 30-day period 30 prescribed in (c) of this section, the court may, upon application, grant the panel [IT] 31 an additional 30 days.
01 * Sec. 32. AS 09.55.536 is amended by adding a new subsection to read: 02 (i) This section applies regardless of whether a party in the action or the health 03 care provider whose professional services are the subject of the action is a 04 governmental entity or in the public or private sector. 05 * Sec. 33. AS 09.55.560(1) is amended to read: 06 (1) "health care provider" means an acupuncturist licensed under 07 AS 08.06; an audiologist licensed under AS 08.11; a chiropractor licensed under 08 AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under 09 AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under 10 AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under 11 AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational 12 therapist licensed under AS 08.84; a physician licensed under AS 08.64; a podiatrist; 13 a psychologist and a psychological associate licensed under AS 08.86; [AND] a 14 hospital as defined in AS 18.20.130, including a governmentally owned or operated 15 hospital; [AND] an employee of a health care provider acting within the course and 16 scope of employment; an ambulatory surgical facility and other organizations 17 whose primary purpose is the delivery of health care, including a health 18 maintenance organization, individual practice association, integrated delivery 19 system, preferred provider organization or arrangement, and a physical hospital 20 organization. 21 * Sec. 34. AS 09.55.560 is amended by adding new paragraphs to read: 22 (4) "professional negligence" means a negligent act or omission by a 23 health care provider in rendering professional services; 24 (5) "professional services" means service provided by a health care 25 provider that is within the scope of services for which the health care provider is 26 licensed and that is not prohibited under the health care provider's license or by a 27 facility in which the health care provider practices. 28 * Sec. 35. AS 09.60 is amended by adding a new section to read: 29 Sec. 09.60.080. Contingent fee agreements. If an attorney contracts for or 30 collects a contingency fee in connection with an action for personal injury, death, or 31 property damage and the damages awarded by a court or jury include an award of
01 punitive damages, the contingent fee due the attorney shall be calculated after that 02 portion of punitive damages due the state under AS 09.17.020(d) has been deducted 03 from the total award of damages. 04 * Sec. 36. AS 09.65 is amended by adding a new section to read: 05 Sec. 09.65.085. Civil liability of electric utility. (a) A utility offering 06 electrical service to the public for compensation under a certificate of public 07 convenience and necessity issued by the Alaska Public Utilities Commission under 08 AS 42.05.221 may not be held strictly liable for property damage, death, or personal 09 injury resulting from an act or omission of the utility relating to the production, 10 delivery, or sale of electricity. 11 (b) This section does not preclude liability for civil damages that are the result 12 of an intentional, reckless, or negligent act or omission. 13 * Sec. 37. AS 09.65 is amended by adding a new section to read: 14 Sec. 09.65.096. Civil liability of hospitals for certain physicians. (a) A 15 hospital is not liable for civil damages as a result of an act or omission by an 16 emergency room physician who is not an employee or actual agent of the hospital if 17 the hospital provides notice that the emergency room physician is an independent 18 contractor and the emergency room physician is insured as described under (c) of this 19 section. The hospital is responsible for exercising reasonable care in granting 20 privileges to practice in the hospital, for reviewing those privileges on a regular basis, 21 and for taking appropriate steps to revoke or restrict privileges in appropriate 22 circumstances. The hospital is not otherwise liable for the acts or omissions of an 23 emergency room physician who is an independent contractor. The notice required by 24 this subsection must be posted conspicuously in all admitting areas of the hospital, 25 published at least annually in a newspaper of general circulation in the area, and must 26 be in substantially the following form: 27 Notice of Limited Liability 28 The following emergency room physicians are independent 29 contractors and are not employees of the hospital: 30 (List specific emergency room physicians) 31 (b) This section does not preclude liability for civil damages that are the
01 proximate result of the hospital's negligence or intentional misconduct. 02 (c) A hospital is not immune from liability under (a) of this section for an act 03 or omission of an emergency room physician who is an independent contractor unless 04 the emergency room physician has liability insurance coverage in the amount of at 05 least $500,000 for each incident and the coverage is in effect and applicable to those 06 health care services offered by the emergency room physician that the hospital is 07 required to provide by law or by accreditation requirements. 08 (d) In this section, 09 (1) "emergency room physician" means a physician who provides health 10 care services in a hospital emergency room; 11 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 12 governmentally owned or operated hospital; 13 (3) "independent contractor" means an emergency room physician who 14 is not an employee or actual agent of the hospital in connection with the rendition of 15 the health care services. 16 * Sec. 38. AS 09.65.210 is repealed and reenacted to read: 17 Sec. 09.65.210. Damages resulting from commission of a felony or while 18 under the influence of alcohol or drugs. A person who suffers personal injury or 19 death or the person's personal representative under AS 09.55.570 or 09.55.580 may not 20 recover damages for the personal injury or death if the injury or death occurred while 21 the person was 22 (1) engaged in the commission of a felony, the person has been 23 convicted of the felony, including conviction based on a guilty plea or plea of nolo 24 contendere, and the felony substantially contributed to the personal injury or death; 25 (2) engaged in conduct that would constitute the commission of an 26 unclassified felony, a class A, or a class B felony for which the person was not 27 convicted and the conduct 28 (A) substantially contributed to the personal injury or death; and 29 (B) is proven by the defendant in the civil trial by clear and 30 convincing evidence; 31 (3) fleeing after the commission, by that person, of conduct that would
01 constitute an unclassified felony, a class A felony, or a class B felony or being 02 apprehended for conduct that would constitute an unclassified felony, a class A felony, 03 or a class B felony if the conduct 04 (A) during the flight or apprehension substantially contributed 05 to the injury or death; and 06 (B) is proven by the defendant in the civil trial by clear and 07 convincing evidence; 08 (4) operating a vehicle, aircraft, or watercraft while under the influence 09 of intoxicating liquor or any controlled substance in violation of AS 28.35.030, was 10 convicted, including conviction based on a guilty plea or plea of nolo contendere, and 11 the conduct substantially contributed to the personal injury or death; or 12 (5) engaged in conduct that would constitute a violation of 13 AS 28.35.030 for which the person was not convicted if the conduct substantially 14 contributed to the personal injury or death and the conduct is proven by the defendant 15 in the civil trial by clear and convincing evidence. 16 * Sec. 39. AS 09.68 is amended by adding a new section to read: 17 Sec. 09.68.130. Collection of settlement information. (a) Except as 18 provided in (c) of this section, the Alaska Judicial Council shall collect and evaluate 19 information relating to the compromise or other settlement of all civil litigation. The 20 information, including the case name and file number, a general description of the 21 claims being settled, the dollar amount of the settlement, to whom the settlement was 22 paid, and any nonmonetary terms, shall be collected on a form developed by the 23 council for that purpose. 24 (b) The information received by the council under (a) of this section is 25 confidential. This restriction does not prevent the disclosure of summaries and 26 statistics in a manner that does not allow the identification of particular cases or 27 parties. 28 (c) The requirements of (a) of this section do not apply to the following types 29 of cases: 30 (1) divorce and dissolution; 31 (2) adoption, custody, support, visitation, and emancipation of children;
01 (3) children-in-need-of-aid cases under AS 47.10 or delinquent minors 02 cases under 47.12; 03 (4) domestic violence protective orders under AS 18.66.100 - 04 18.66.180; 05 (5) estate, guardianship, and trust cases filed under AS 13; 06 (6) small claims under AS 22.15.040. 07 * Sec. 40. AS 21.06 is amended by adding a new section to read: 08 Sec. 21.06.087. Insurance report. (a) The director shall require reporting of 09 and shall compile information necessary to evaluate the effect of the measures enacted 10 in this Act on the availability and cost of insurance in the state. 11 (b) Information described in (a) of this section shall be provided by all insurers 12 doing business in this state in the format specified by the director and must include 13 factual information stating premiums, claims, losses, expenses, and solvency of the 14 company as a whole. Information shall be compiled by the division in a way that 15 protects the identity of individual insureds. 16 (c) The director shall adopt regulations to implement and interpret this section, 17 including requiring insurers doing business in the state to provide information 18 necessary for the division to carry out its responsibilities under (a) and (b) of this 19 section. If there are indications of market disruption, the director may waive all or 20 part of the reporting requirements in this section. 21 (d) Beginning June 1, 2000, the information compiled under (a) of this section 22 shall be reported annually to the governor and the judiciary committees of both houses 23 of the legislature. 24 (e) The division may consult with the Alaska Judicial Council when 25 determining what information to require to be reported under (a) - (c) of this section 26 and when implementing the compilation required under (a) of this section. 27 * Sec. 41. AS 21.89.100(d) is amended to read: 28 (d) If the insured selects independent counsel at the insurer's expense, the 29 insurer may require that the independent counsel have at least four years of experience 30 in civil litigation, including defense experience in the general subject area at issue in 31 the civil action, and malpractice insurance. Unless otherwise provided in the insurance
01 policy, the obligation of the insurer to pay the fee charged by the independent counsel 02 is limited to the rate that is actually paid by the insurer to an attorney in the ordinary 03 course of business in the defense of a similar civil action in the community in which 04 the claim arose or is being defended. In providing independent counsel, the insurer 05 is not responsible for the fees and costs of defending an allegation for which 06 coverage is properly denied and shall be responsible only for the fees and costs 07 to defend those allegations for which the insurer either reserves its position as to 08 coverage or accepts coverage. The independent counsel shall keep detailed 09 records allocating fees and costs accordingly. A dispute between the insurer and 10 insured regarding attorney fees that is not resolved by the insurance policy or this 11 section shall be resolved by arbitration under AS 09.43. 12 * Sec. 42. AS 21.89.100 is amended by adding a new subsection to read: 13 (h) When an insured is represented by independent counsel, the insurer may 14 settle directly with the plaintiff if the settlement includes all claims based upon the 15 allegations for which the insurer previously reserved its position as to coverage or 16 accepted coverage, regardless of whether the settlement extinguishes all claims against 17 the insured. 18 * Sec. 43. AS 23.30.015(g) is amended to read: 19 (g) If the employee or the employee's representative recovers damages from 20 the third person, the employee or representative shall promptly pay to the employer the 21 total amounts paid by the employer under (e)(1)(A) - (C) [(e)(1)(A), (B), AND (C)] 22 of this section [,] insofar as the recovery is sufficient after deducting all litigation costs 23 and expenses. Any excess recovery by the employee or representative shall be 24 credited against any amount payable by the employer thereafter. If the employer is 25 allocated a percentage of fault under AS 09.17.080, the amount due the employer 26 under this subsection shall be reduced by an amount equal to the employer's 27 equitable share of damages assessed under AS 09.17.080(c). 28 * Sec. 44. AS 44.77.015(a) is amended to read: 29 (a) For the purposes of filing claims for medical services provided under 30 AS 47.07 or AS 47.25.120 - 47.25.300, "promptly," in AS 44.77.010(a), means (1) 31 within six months after the date of service, or as provided in (b) of this section, if
01 there is no third-party claim, or (2) within 12 months after the date of service if there 02 is a third-party claim. Except as provided in (c) of this section, a claim may not be 03 paid if it is not filed promptly; an inference to the contrary may not be drawn from 04 AS 09.10.053 [AS 09.10.050], AS 09.50.250 - 09.50.300, or AS 37.25.010. 05 * Sec. 45. Rule 16.1(c), Alaska Rules of Civil Procedure, is amended to read: 06 (c) Motion to Set Trial and Certificate. Unless otherwise ordered by the 07 court, a [A] motion to set trial may not be filed until after the meeting of parties 08 under (n) of this rule has occurred and the scheduling order under Rule 16(b) has 09 been issued [105 DAYS AFTER SERVICE OF THE SUMMONS AND 10 COMPLAINT]. A party seeking to obtain a trial date must serve and file a motion to 11 set trial together with a certificate, signed by counsel, stating: 12 (1) That the issues in the case have actually been joined; 13 (2) That all parties have completed discovery or have a reasonable 14 opportunity to do so within the next 60 days; 15 (3) That the procedure for listing witnesses and exhibits and providing 16 exhibit copies, as set forth in [PARAGRAPH] (d) of this rule has been completed; 17 (4) Whether trial by jury has been timely demanded; 18 (5) The estimated number of days for the trial, including estimates for 19 each party's case and for jury selection; 20 (6) The names, addresses and telephone numbers of all attorneys and 21 pro se parties who are responsible for the conduct of the litigation; 22 (7) Which, if any, statute or rule entitles the case to preference on the 23 trial calendar; 24 (8) That the parties have complied with [PARAGRAPH] (k) of this 25 rule. 26 * Sec. 46. Rule 16.1(n), Alaska Rules of Civil Procedure, is repealed and reenacted to read: 27 (n) Meeting of Parties. Except when otherwise ordered, the parties shall, as 28 soon as practicable after the exchange of initial disclosures required under Rule 29 26(a)(1) and in any event at least 14 days before a scheduling conference is held or 30 a scheduling order is due under Rule 16(b), meet to discuss the nature and basis of 31 their claims and defenses and the possibilities for a prompt settlement of the case and
01 to develop a proposed discovery plan. The attorneys of record and all unrepresented 02 parties that have appeared in the case are jointly responsible for arranging and being 03 present or represented at the meeting, for attempting in good faith to agree on the 04 proposed discovery plan, and for submitting to the court within 10 days after the 05 meeting a written report outlining the proposed discovery plan. The proposed 06 discovery plan shall indicate the parties' views and proposals concerning 07 (1) what changes should be made in the timing or forms of subsequent 08 disclosures under the rules, including a statement as to when the disclosures required 09 under Rule 26(a) were made; 10 (2) the subjects on which discovery may be needed, when discovery 11 should be completed, and whether discovery should be conducted in phases or be 12 limited to or focused upon particular issues; 13 (3) what changes should be made in the limitations on discovery 14 imposed under these rules and what other limitations should be imposed; 15 (4) whether a scheduling conference is unnecessary; 16 (5) whether there will be dispositive or partially dispositive motions 17 filed in the case and whether other deadlines should be set aside pending resolution of 18 the dispositive or partially dispositive motions by the court; and 19 (6) any other orders that should be entered by the court under Civil 20 Rule 16(b) and (c). 21 * Sec. 47. Rule 41(a), Alaska Rules of Civil Procedure, is amended by adding a new 22 paragraph to read: 23 (3) Settlement Information. If a voluntary dismissal under this rule 24 is the result of compromise or other settlement of the parties, the parties shall submit 25 to the Alaska Judicial Council the information required under AS 09.68.130. A notice 26 of dismissal made under (1)[a] of this subsection must be accompanied by a 27 certification signed by or on behalf of the plaintiff that the information required under 28 AS 09.68.130 has been submitted to the Alaska Judicial Council. A stipulation of 29 dismissal made under (1)[b] of this subsection must be accompanied by a certification 30 signed by or on behalf of all parties who have appeared in the action. The 31 requirements of this paragraph do not apply to the types of cases listed in
01 AS 09.68.130(c). 02 * Sec. 48. Rule 72.1(g), Alaska Rules of Civil Procedure, is amended to read: 03 (g) Discovery. Except by leave of court, no discovery may be conducted until 04 the report of the Panel has been filed or until 60 [80] days after selection of the Panel 05 [HAVE ELAPSED FROM THE DATE THE CASE IS AT ISSUE], whichever is first 06 to occur, unless discovery is further stayed for good cause by order of the court. 07 * Sec. 49. Rule 95(b), Alaska Rules of Civil Procedure, is amended to read: 08 (b) In addition to its authority under (a) of this rule and its power to punish 09 for contempt, a court may, after reasonable notice and an opportunity to show cause 10 to the contrary, and after hearing by the court, if requested, impose a fine not to 11 exceed $10,000.00 [$1,000.00] against any attorney who practices before it for failure 12 to comply with these rules or any rules promulgated by the supreme court. 13 * Sec. 50. Rule 95, Alaska Rules of Civil Procedure, is amended by adding a new 14 subsection to read: 15 (c) If the trier of fact determines that a party to a civil action has intentionally 16 made a false statement of a material fact in connection with the prosecution or defense 17 of a civil action, the court shall enter judgment against the party making the false 18 statement on the issue to which the false statement relates. If the civil action involves 19 multiple claims and the false statement does not apply to all claims, the judgment 20 required under this subsection shall apply only to those claims to which the false 21 statement relates. 22 * Sec. 51. Rule 511, Alaska Rules of Appellate Procedure, is amended by adding a new 23 subsection to read: 24 (e) Settlement Information. If a dismissal under (a) or (b) of this rule is the 25 result of compromise or other settlement between the parties, the parties shall submit 26 to the Alaska Judicial Council the information required under AS 09.68.130. A 27 dismissal by agreement under (a) of this rule must be accompanied by a certification 28 signed by the attorneys of record for all parties that the information required under 29 AS 09.68.130 has been submitted to the Alaska Judicial Council. A dismissal by the 30 appellant or petitioner made under (b) of this rule must be accompanied by a 31 certification signed by the appellant's or petitioner's attorney of record. The
01 requirements of this subsection do not apply to the types of cases listed in 02 AS 09.68.130(c). 03 * Sec. 52. Rule 16.1(k)(4), Alaska Rules of Civil Procedure, is repealed. 04 * Sec. 53. AS 09.55.548 is repealed. 05 * Sec. 54. AS 09.17.020(d), as enacted by sec. 11 of this Act, has the effect of amending 06 Rule 58, Alaska Rules of Civil Procedure, by requiring the court to require that a certain 07 percentage of an award of punitive damages be deposited into the general fund. 08 * Sec. 55. AS 09.17.040(a), as amended by sec. 12 of this Act, has the effect of amending 09 Rule 58, Alaska Rules of Civil Procedure, by requiring the court to reduce an award of 10 damages by certain tax rates in effect on the date of injury or death if taxable. 11 * Sec. 56. AS 09.17.040(d), as amended by sec. 13 of this Act, has the effect of amending 12 Rule 58, Alaska Rules of Civil Procedure, by requiring that certain judgments be paid 13 periodically if requested by a party, with a lump sum payment for certain attorney fees. 14 * Sec. 57. AS 09.17.040(e), as amended by sec. 14 of this Act, has the effect of amending 15 Rule 58, Alaska Rules of Civil Procedure, by imposing certain requirements when a judgment 16 is paid by periodic payments. 17 * Sec. 58. AS 09.17.040(f), as amended by sec. 15 of this Act, has the effect of amending 18 Rule 58, Alaska Rules of Civil Procedure, by requiring that certain judgments include any 19 increases for future inflation. 20 * Sec. 59. AS 09.17.080(a), as amended by sec. 17 of this Act, has the effect of amending 21 Rule 49, Alaska Rules of Civil Procedure, by requiring the jury to answer the special 22 interrogatory listed in AS 09.17.080(a)(2) regarding the percentages of fault to be allocated 23 among the claimants, defendants, third-party defendants, persons who have been released from 24 liability, or other person who is responsible for the damages. 25 * Sec. 60. AS 09.20.185, enacted by sec. 21 of this Act, has the effect of amending 26 Rule 702, Alaska Rules of Evidence, by requiring certain qualifications from a person 27 testifying as an expert witness. 28 * Sec. 61. AS 09.30.065, as amended by secs. 22 and 23 of this Act, has the effect of 29 amending Rule 68, Alaska Rules of Civil Procedure, by requiring the offeree to pay costs and 30 reasonable actual attorney fees on a sliding scale of percentages in certain cases, by 31 eliminating provisions relating to interest and by providing that a subsequent offer revokes
01 prior offers. 02 * Sec. 62. AS 09.30.070(c), added by sec. 25 of this Act, has the effect of amending 03 Rule 58, Alaska Rules of Civil Procedure, by providing that prejudgment interest may not be 04 awarded for future economic or noneconomic damages. 05 * Sec. 63. ALTERNATIVE DISPUTE RESOLUTION. (a) It is the intent of this 06 legislation to create a pilot alternative dispute resolution procedure within the existing civil 07 litigation system in order to promote the timely, inexpensive, and efficient resolution of civil 08 disputes. 09 (b) The Alaska Judicial Council shall consult with the Alaska Dispute Settlement 10 Association, review court sanctioned alternative dispute resolution programs in other states and 11 in the federal court system, and make recommendations to assist the legislature and the Alaska 12 Court System in the establishment of a pilot program for alternative dispute resolution within 13 the Alaska Court System. The Alaska Judicial Council shall submit a written report to the 14 legislature and to the Alaska Supreme Court within six months after the effective date of this 15 Act. The report must include specific types of programs, specific types of cases within each 16 program that are amenable to alternative dispute resolution, the cost to the parties and to the 17 Alaska Court System under these programs, and the qualifications of the neutral parties, 18 including nonlawyers, who will provide dispute resolution services under the program. 19 (c) In this section, "alternative dispute resolution" is limited to arbitration, mediation, 20 and early neutral evaluation. 21 * Sec. 64. APPLICABILITY. This Act applies to all causes of action accruing on or after 22 the effective date of this Act. 23 * Sec. 65. SEVERABILITY. Under AS 01.10.030, if any provision of this Act or the 24 application of a provision of this Act to any person or circumstance is held invalid, the 25 remainder of this Act and the application to other persons shall not be affected.