SCS CSSSHB 58(RLS) AM S: "An Act relating to civil actions; relating to independent counsel provided under an insurance policy; relating to attorney fees; amending Rules 16.1, 26, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rules 1 and 4, District Court Rules of Civil Procedure; amending Rule 702, Alaska Rules of Evidence; and amending Rule 511, Alaska Rules of Appellate Procedure."
00SENATE CS FOR CS FOR SS FOR HOUSE BILL NO. 58(RLS) am S 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, 26, 41, 49, 03 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure; amending Rules 1 and 04 4, District Court Rules of Civil Procedure; amending Rule 702, Alaska Rules of 05 Evidence; and amending Rule 511, Alaska Rules of Appellate Procedure." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. LEGISLATIVE INTENT. In enacting this bill, it is the intent of this 08 legislature as a matter of public policy to 09 (1) encourage the efficiency of the civil justice system by discouraging 10 frivolous litigation and by decreasing the amount, cost, and complexity of litigation without 11 diminishing the protection of innocent Alaskans' rights to reasonable, but not excessive, 12 compensation for tortious injuries caused by others; 13 (2) provide for reasonable, but not excessive, punitive damage awards against 14 tortfeasors sufficient to deter conduct and practices that harm innocent Alaskans while not
01 hampering a positive business environment by allowing excessive penalties; 02 (3) encourage individual savings and economic growth by fostering an 03 environment likely to control the increase of liability insurance rates to individuals and 04 businesses resulting in a savings to the state, municipalities, and private businesses that are 05 self-insured; 06 (4) encourage the traditionally recognized Alaska values of self-reliance and 07 independence by underscoring the need for personal responsibility in making choices and 08 personal accountability for the consequences of those choices; 09 (5) alleviate the high cost of malpractice insurance premiums that discourage 10 physicians, architects, engineers, attorneys, and other professionals from rendering needed 11 services to the public; 12 (6) ensure that hospitals that comply with the disclosure requirements set out 13 in this Act are not liable for the negligence of emergency room physicians who are acting as 14 independent contractors; to this extent, this Act is intended to overrule Jackson v. Powers, 743 15 P.2d 1376 (Alaska 1987); 16 (7) ensure that one of several tortfeasors is not held responsible for the 17 negligence of an employer; to this extent, this Act is intended to overrule Lake v. Construction 18 Machinery, Inc., 787 P.2d 1027 (Alaska 1990); 19 (8) enact a statute of repose that meets the tests set out in Turner Construction 20 Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988); 21 (9) ensure that in actions involving the fault of more than one person, the fault 22 of each claimant, defendant, third-party defendant, person who has been released from 23 liability, or other person responsible for the damages and available as a litigant be determined 24 and awards be allocated in accordance with the fault of each, thereby modifying Benner v. 25 Wichman, 874 P.2d 949 (Alaska 1994); 26 (10) reduce the amount of litigation proceeding to trial by modifying the 27 allocation of attorney fees and court costs based on the offer of judgment and the final court 28 award, thereby providing a financial incentive to both parties to settle the dispute; and 29 (11) ensure that this Act does not apply to or in any way have an effect on 30 existing litigation or a civil cause of action that accrues before the effective date of this Act; 31 it is the specific intent of the legislature that this Act not apply to or in any way have an
01 effect on In Re Exxon Valdez, A89-0095 Civ. (D.Alaska) or any other federal admiralty action 02 now or in the future. 03 * Sec. 2. AS 06.05.473(h) is amended to read: 04 (h) After the payment of all other claims, including interest at the rate of 10.5 05 percent a year [ESTABLISHED UNDER AS 09.30.070], the department shall pay 06 claims that are otherwise valid but that were not filed within the time prescribed. 07 * Sec. 3. AS 09.10.050 is repealed and reenacted to read: 08 Sec. 09.10.050. Certain property actions to be brought in six years. Unless 09 the action is commenced within six years, a person may not bring an action for waste 10 or trespass upon real property. 11 * Sec. 4. AS 09.10 is amended by adding a new section to read: 12 Sec. 09.10.053. Contract actions to be brought in three years. Unless the 13 action is commenced within three years, a person may not bring an action upon a 14 contract or liability, express or implied, except as provided in AS 09.10.040, the 15 provisions of this section may be waived by contract, or as otherwise provided by law. 16 * Sec. 5. AS 09.10.055 is repealed and reenacted to read: 17 Sec. 09.10.055. Statute of repose of 10 years. (a) Notwithstanding the 18 disability of minority described under AS 09.10.140(a), a person may not bring an 19 action for personal injury, death, or property damage unless commenced within 10 20 years of the earlier of the date of 21 (1) substantial completion of the construction alleged to have caused 22 the personal injury, death, or property damage; however, the limitation of this 23 paragraph does not apply to a claim resulting from an intentional or reckless disregard 24 of specific project design plans and specifications or building codes; in this paragraph, 25 "substantial completion" means the date when construction is sufficiently completed 26 to allow the owner or a person authorized by the owner to occupy the improvement 27 or to use the improvement in the manner for which it was intended; or 28 (2) the last act alleged to have caused the personal injury, death, or 29 property damage. 30 (b) This section does not apply if 31 (1) the personal injury, death, or property damage resulted from
01 (A) prolonged exposure to hazardous waste; 02 (B) an intentional act or gross negligence; 03 (C) fraud or misrepresentation; 04 (D) breach of an express warranty or guarantee; 05 (E) a defective product; in this subparagraph, "product" means 06 an object that has intrinsic value, is capable of delivery as an assembled whole 07 or as a component part, and is introduced into trade or commerce; or 08 (F) breach of trust or fiduciary duty; 09 (2) the facts that would give notice of a potential cause of action are 10 intentionally concealed; 11 (3) a shorter period of time for bringing the action is imposed under 12 another provision of law; 13 (4) the provisions of this section are waived by contract; or 14 (5) the facts that would constitute accrual of a cause of action of a 15 minor are not discoverable in the exercise of reasonable care by the minor's parent or 16 guardian. 17 (c) The limitation imposed under (a) of this section is tolled during any period 18 in which there exists the undiscovered presence of a foreign body that has no 19 therapeutic or diagnostic purpose or effect in the body of the injured person and the 20 action is based on the presence of the foreign body. 21 * Sec. 6. AS 09.10.070(a) is amended to read: 22 (a) Except as otherwise provided by law, a [A] person may not bring an 23 action (1) for libel, slander, assault, battery, seduction, or false imprisonment, (2) 24 [OR] for personal [ANY] injury or death, [TO THE PERSON] or injury to the rights 25 of another not arising on contract and not specifically provided otherwise; (3) for 26 taking, detaining, or injuring personal property, including an action for its 27 specific recovery; (4) [(2)] upon a statute for a forfeiture or penalty to the state; or 28 (5) [(3)] upon a liability created by statute, other than a penalty or forfeiture; unless 29 the action is commenced within two years of the accrual of the cause of action. 30 * Sec. 7. AS 09.10.140(a) is amended to read: 31 (a) Except as provided under (c) of this section, if [IF] a person entitled to
01 bring an action mentioned in this chapter is at the time the cause of action accrues 02 either (1) under the age of majority, or (2) incompetent by reason of mental illness or 03 mental disability, the time of a disability identified in (1) or (2) of this subsection is 04 not a part of the time limit for the commencement of the action. Except as provided 05 in (b) of this section, the period within which the action may be brought is not 06 extended in any case longer than two years after the disability ceases. 07 * Sec. 8. AS 09.10.140 is amended by adding a new subsection to read: 08 (c) In an action for personal injury of a person who was under the age of eight 09 years at the time of the injury, the time period before the person's eighth birthday is 10 not a part of the time limit imposed under AS 09.10.070(a) for commencing the civil 11 action. 12 * Sec. 9. AS 09.17.010 is repealed and reenacted to read: 13 Sec. 09.17.010. Noneconomic damages. (a) In an action to recover damages 14 for personal injury or wrongful death, all damage claims for noneconomic losses shall 15 be limited to compensation for pain, suffering, inconvenience, physical impairment, 16 disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary 17 damage. 18 (b) Except as provided under (c) of this section, the damages awarded by a 19 court or a jury under (a) of this section for all claims, including a loss of consortium 20 claim, arising out of a single injury or death may not exceed $400,000 or the injured 21 person's life expectancy in years multiplied by $8,000, whichever is greater. 22 (c) In an action for personal injury, the damages awarded by a court or jury 23 that are described under (b) of this section may not exceed $1,000,000 or the person's 24 life expectancy in years multiplied by $25,000, whichever is greater, when the damages 25 are awarded for severe permanent physical impairment or severe disfigurement. 26 (d) Multiple injuries sustained by one person as a result of a single incident 27 shall be treated as a single injury for purposes of this section. 28 * Sec. 10. AS 09.17.020 is repealed and reenacted to read: 29 Sec. 09.17.020. Punitive damages. (a) In an action in which a claim of 30 punitive damages is presented to the fact finder, the fact finder shall determine, 31 concurrently with all other issues presented, whether punitive damages shall be allowed
01 by using the standards set out in (b) of this section. If punitive damages are allowed, 02 a separate proceeding under (c) of this section shall be conducted before the same fact 03 finder to determine the amount of punitive damages to be awarded. 04 (b) The fact finder may make an award of punitive damages only if the 05 plaintiff proves by clear and convincing evidence that the defendant's conduct 06 (1) was outrageous, including acts done with malice or bad motives; 07 or 08 (2) evidenced reckless indifference to the interest of another person. 09 (c) At the separate proceeding to determine the amount of punitive damages 10 to be awarded, the fact finder may consider 11 (1) the likelihood at the time of the conduct that serious harm would 12 arise from the defendant's conduct; 13 (2) the degree of the defendant's awareness of the likelihood described 14 in (1) of this subsection; 15 (3) the amount of financial gain the defendant gained or expected to 16 gain as a result of the defendant's conduct; 17 (4) the duration of the conduct and any intentional concealment of the 18 conduct; 19 (5) the attitude and conduct of the defendant upon discovery of the 20 conduct; 21 (6) the financial condition of the defendant; and 22 (7) the total deterrence of other damages and punishment imposed on 23 the defendant as a result of the conduct, including compensatory and punitive damages 24 awards to persons in situations similar to those of the plaintiff and the severity of the 25 criminal penalties to which the defendant has been or may be subjected. 26 (d) At the conclusion of the separate proceeding under (c) of this section, the 27 fact finder shall determine the amount of punitive damages to be awarded, and the 28 court shall enter judgment for that amount. 29 (e) Unless that evidence is relevant to another issue in the case, discovery of 30 evidence that is relevant to the amount of punitive damages to be determined under 31 (c)(3) or (6) of this section may not be conducted until after the fact finder has
01 determined that an award of punitive damages is allowed under (a) and (b) of this 02 section. The court may issue orders as necessary, including directing the parties to 03 have the information relevant to the amount of punitive damages to be determined 04 under (c)(3) or (6) of this section available for production immediately at the close of 05 the initial trial in order to minimize the delay between the initial trial and the separate 06 proceeding to determine the amount of punitive damages. 07 (f) Except as provided in (g) and (h) of this section, an award of punitive 08 damages may not exceed the greater of 09 (1) three times the amount of compensatory damages awarded to the 10 plaintiff in the action; or 11 (2) the sum of $500,000. 12 (g) Except as provided in (h) of this section, if the fact finder determines that 13 the conduct proven under (b) of this section was motivated by financial gain and the 14 adverse consequences of the conduct were actually known by the defendant or the 15 person responsible for making policy decisions on behalf of the defendant, it may 16 award an amount of punitive damages not to exceed the greatest of 17 (1) four times the amount of compensatory damages awarded to the 18 plaintiff in the action; 19 (2) four times the aggregate amount of financial gain that the defendant 20 received as a result of the defendant's misconduct; or 21 (3) the sum of $7,000,000. 22 (h) Notwithstanding any other provision of law, in an action against an 23 employer to recover damages for an unlawful employment practice prohibited by 24 AS 18.80.220, the amount of punitive damages awarded by the court or jury may not 25 exceed 26 (1) $200,000 if the employer has less than 100 employees in this state; 27 (2) $300,000 if the employer has 100 or more but less than 200 28 employees in this state; 29 (3) $400,000 if the employer has 200 or more but less than 500 30 employees in this state; and 31 (4) $500,000 if the employer has 500 or more employees in this state.
01 (i) Subsection (h) of this section may not be construed to allow an award of 02 punitive damages against the state or a person immune under another provision of law. 03 In (h) of this section, "employees" means persons employed in each of 20 or more 04 calendar weeks in the current or preceding calendar year. 05 (j) If a person receives an award of punitive damages, the court shall require 06 that 50 percent of the award be deposited into the general fund of the state. This 07 subsection does not grant the state the right to file or join a civil action to recover 08 punitive damages. 09 * Sec. 11. AS 09.17.080(a) is amended to read: 10 (a) In all actions involving fault of more than one person [PARTY TO THE 11 ACTION], including third-party defendants and persons who have settled or otherwise 12 been released [UNDER AS 09.16.040], the court, unless otherwise agreed by all 13 parties, shall instruct the jury to answer special interrogatories or, if there is no jury, 14 shall make findings, indicating 15 (1) the amount of damages each claimant would be entitled to recover 16 if contributory fault is disregarded; and 17 (2) the percentage of the total fault [OF ALL OF THE PARTIES TO 18 EACH CLAIM] that is allocated to each claimant, defendant, third-party defendant, 19 [AND] person who has been released from liability, or other person responsible for 20 the damages unless the person was identified as a potentially responsible person, 21 the person is not a person protected from a civil action under AS 09.10.055, and 22 the parties had a sufficient opportunity to join that person in the action but chose 23 not to; in this paragraph, "sufficient opportunity to join" means the person is 24 (A) within the jurisdiction of the court; 25 (B) not precluded from being joined by law or court rule; 26 and 27 (C) reasonably locatable [UNDER AS 09.16.040]. 28 * Sec. 12. AS 09.17.080(b) is amended to read: 29 (b) In determining the percentages of fault, the trier of fact shall consider both 30 the nature of the conduct of each person [PARTY] at fault, and the extent of the 31 causal relation between the conduct and the damages claimed. [THE TRIER OF
01 FACT MAY DETERMINE THAT TWO OR MORE PERSONS ARE TO BE 02 TREATED AS A SINGLE PARTY IF THEIR CONDUCT WAS A CAUSE OF THE 03 DAMAGES CLAIMED AND THE SEPARATE ACT OR OMISSION OF EACH 04 PERSON CANNOT BE DISTINGUISHED.] 05 * Sec. 13. AS 09.17.080(c) is amended to read: 06 (c) The court shall determine the award of damages to each claimant in 07 accordance with the findings [, SUBJECT TO A REDUCTION UNDER 08 AS 09.16.040,] and enter judgment against each party liable. The court also shall 09 determine and state in the judgment each party's equitable share of the obligation to 10 each claimant in accordance with the respective percentages of fault as determined 11 under (a) of this section. Except as provided under AS 23.30.015(g), an 12 assessment of a percentage of fault against a person who is not a party may only 13 be used as a measure for accurately determining the percentages of fault of a 14 named party. Assessment of a percentage of fault against a person who is not a 15 party does not subject that person to civil liability in that action and may not be 16 used as evidence of civil liability in another action. 17 * Sec. 14. AS 09.17.900 is amended to read: 18 Sec. 09.17.900. Definition. In this chapter, "fault" includes acts or omissions 19 that are in any measure negligent, [OR] reckless, or intentional toward the person or 20 property of the actor or others, or that subject a person to strict tort liability. The term 21 also includes breach of warranty, unreasonable assumption of risk not constituting an 22 enforceable express consent, misuse of a product for which the defendant otherwise 23 would be liable, and unreasonable failure to avoid an injury or to mitigate damages. 24 Legal requirements of causal relation apply both to fault as the basis for liability and 25 to contributory fault. 26 * Sec. 15. AS 09.20 is amended by adding a new section to read: 27 Sec. 09.20.185. Expert witness qualification. (a) In an action based on 28 professional negligence, a person may not testify as an expert witness on the issue of 29 the appropriate standard of care unless the witness is 30 (1) a professional who is licensed in this state or in another state or 31 country;
01 (2) trained and experienced in the same discipline or school of practice 02 as the defendant or in an area directly related to a matter at issue; and 03 (3) certified by a board recognized by the state as having acknowledged 04 expertise and training directly related to the particular field or matter at issue. 05 (b) The provisions of (a) of this section do not apply if the state has not 06 recognized a board that has certified the witness in the particular field or matter at 07 issue. 08 * Sec. 16. AS 09.30.065 is amended to read: 09 Sec. 09.30.065. Offers of judgment. At any time more than 10 days before 10 the trial begins, either the party making a claim or the party defending against a claim 11 may serve upon the adverse party an offer to allow judgment to be entered in complete 12 satisfaction of the claim for the money or property or to the effect specified in the 13 offer, with costs then accrued. If within 10 days after the service of the offer the 14 adverse party serves written notice that the offer is accepted, either party may then file 15 the offer and notice of acceptance together with proof of service, and the clerk shall 16 enter judgment. An offer not accepted within 10 days is considered withdrawn, and 17 evidence of that offer is not admissible except in a proceeding to determine the form 18 of judgment after verdict. If the judgment finally entered on the claim as to which an 19 offer has been made under this section is at least five percent less [NOT MORE] 20 favorable to the offeree than the offer, or if there are multiple defendants at least 21 10 percent less favorable to the offeree than the offer, the offeree, whether the 22 party making the claim or defending against the claim, shall pay all costs as 23 allowed under the Alaska Rules of Civil Procedure and shall pay reasonable 24 actual attorney fees incurred by the offeror from the date the offer was made, 25 [THE INTEREST AWARDED UNDER AS 09.30.070 AND ACCRUED UP TO THE 26 DATE JUDGMENT IS ENTERED SHALL BE ADJUSTED] as follows: 27 (1) if the offer was served no later than 60 days after both parties 28 made the disclosures required by the Alaska Rules of Civil Procedure the offeree 29 shall pay 75 percent of the offeror's reasonable actual attorney fees [OFFEREE 30 IS THE PARTY MAKING THE CLAIM, THE INTEREST RATE SHALL BE 31 REDUCED BY FIVE PERCENT A YEAR];
01 (2) if the offer was served more than 60 days after both parties 02 made the disclosures required by the Alaska Rules of Civil Procedure but more 03 than 90 days before the trial began, the offeree shall pay 50 percent of the 04 offeror's reasonable actual attorney fees; 05 (3) if the offer was served 90 days or less but more than 10 days 06 before the trial began, the offeree shall pay 30 percent of the offeror's reasonable 07 actual attorney fees [OFFEREE IS THE PARTY DEFENDING AGAINST THE 08 CLAIM, THE INTEREST RATE SHALL BE INCREASED BY FIVE PERCENT A 09 YEAR]. 10 * Sec. 17. AS 09.30.065 is amended by adding a new subsection to read: 11 (b) If an offeror receives costs and reasonable actual attorney fees under (a) 12 of this section, that offeror shall be considered the prevailing party for purposes of an 13 award of attorney fees under the Alaska Rules of Civil Procedure. Notwithstanding 14 (a) of this section, if the amount awarded an offeror for attorney fees under the Alaska 15 Rules of Civil Procedure is greater than a party would receive under (a) of this section, 16 the offeree shall pay to the offeror attorney fees specified under the Alaska Rules of 17 Civil Procedure and is not required to pay reasonable actual attorney fees under (a) of 18 this section. A party who receives attorney fees under this section may not also 19 receive attorney fees under the Alaska Rules of Civil Procedure. 20 * Sec. 18. AS 09.30.070(a) is amended to read: 21 (a) Notwithstanding AS 45.45.010, the [THE] rate of interest on judgments 22 and decrees for the payment of money, including prejudgment interest, is three 23 percentage points above the 12th Federal Reserve District discount rate in effect 24 on January 2 of the year in which the judgment or decree is entered [10.5 25 PERCENT A YEAR], except that a judgment or decree founded on a contract in 26 writing, providing for the payment of interest until paid at a specified rate not 27 exceeding the legal rate of interest for that type of contract, bears interest at the rate 28 specified in the contract if the interest rate is set out in the judgment or decree. 29 * Sec. 19. AS 09.30.070 is amended by adding a new subsection to read: 30 (c) Prejudgment interest may not be awarded for future economic damages, 31 future noneconomic damages, or punitive damages.
01 * Sec. 20. AS 09.50.280 is amended to read: 02 Sec. 09.50.280. Judgment for plaintiff; punitive damages. If judgment is 03 rendered for the plaintiff, it shall be for the legal amount found due from the state with 04 [LEGAL] interest as provided under AS 09.30.070 [FROM THE DATE IT BECAME 05 DUE] and without punitive damages. 06 * Sec. 21. AS 09.55.440(a) is amended to read: 07 (a) Upon the filing of the declaration of taking and the deposit with the court 08 of the amount of the estimated compensation stated in the declaration, title to the estate 09 as specified in the declaration vests in the plaintiff, and that property is condemned 10 and taken for the use of the plaintiff, and the right to just compensation for it vests in 11 the persons entitled to it. The compensation shall be ascertained and awarded in the 12 proceeding and established by judgment. The judgment must include interest at the 13 rate of 10.5 percent a year [SET OUT IN AS 09.30.070] on the amount finally 14 awarded that [WHICH] exceeds the amount paid into court under the declaration of 15 taking. The interest runs from the date title vests to the date of payment of the 16 judgment. 17 * Sec. 22. AS 09.55.536(a) is amended to read: 18 (a) In an action for damages due to personal injury or death based upon the 19 provision of professional services by a health care provider, including a person 20 providing services on behalf of a governmental entity, when the parties have not 21 agreed to arbitration of the claim under AS 09.55.535, the court shall appoint within 22 20 days after filing of answer to a summons and complaint a three-person expert 23 advisory panel unless the court decides that an expert advisory opinion is not necessary 24 for a decision in the case. When the action is filed, the court shall, by order, 25 determine the professions or specialties to be represented on the expert advisory panel, 26 giving the parties the opportunity to object or make suggestions. 27 * Sec. 23. AS 09.55.536(c) is amended to read: 28 (c) Not more than 30 days after selection of the panel, the panel [IT] shall 29 make a written report to the parties and to the court, answering the following questions 30 and other questions submitted to the panel by the court in sufficient detail to explain 31 the case and the reasons for the panel's answers:
01 (1) Why did the claimant seek [WHAT WAS THE DISORDER FOR 02 WHICH THE PLAINTIFF CAME TO] medical care? 03 (2) Was a correct diagnosis made? If not, what was incorrect 04 about the diagnosis [WHAT WOULD HAVE BEEN THE PROBABLE OUTCOME 05 WITHOUT MEDICAL CARE]? 06 (3) Was the treatment or lack of treatment [SELECTED] appropriate? 07 If not, what was inappropriate about the treatment or lack of treatment [FOR 08 THE CASE]? 09 (4) Was the claimant injured during the course of evaluation or 10 treatment or by failure to diagnose or treat [DID AN INJURY ARISE FROM THE 11 MEDICAL CARE]? 12 (5) If the answer to question 4 is "yes," what [WHAT] is the nature 13 and extent of the medical injury? 14 (6) What specifically caused the medical injury? 15 (7) Was the medical injury caused by unskillful care? Explain. 16 (8) If a medical injury had not occurred, what would have been the 17 likely outcome of the medical case [HOW WOULD THE PLAINTIFF'S 18 CONDITION DIFFER FROM THE PLAINTIFF'S PRESENT CONDITION]? 19 * Sec. 24. AS 09.55.536(f) is amended to read: 20 (f) Discovery may not be undertaken in a case until the report of the expert 21 advisory panel is received or 60 days after selection of the panel, whichever occurs 22 first. However, the court may relax this prohibition upon a showing of good cause by 23 any party. If the panel has not completed its report within the 30-day period 24 prescribed in (c) of this section, the court may, upon application, grant the panel [IT] 25 an additional 30 days. 26 * Sec. 25. AS 09.55.536 is amended by adding a new subsection to read: 27 (i) This section applies regardless of whether a party in the action or the health 28 care provider whose professional services are the subject of the action is a 29 governmental entity or in the public or private sector. 30 * Sec. 26. AS 09.55.560(1) is amended to read: 31 (1) "health care provider" means an acupuncturist licensed under
01 AS 08.06; an audiologist licensed under AS 08.11; a chiropractor licensed under 02 AS 08.20; a dental hygienist licensed under AS 08.32; a dentist licensed under 03 AS 08.36; a nurse licensed under AS 08.68; a dispensing optician licensed under 04 AS 08.71; a naturopath licensed under AS 08.45; an optometrist licensed under 05 AS 08.72; a pharmacist licensed under AS 08.80; a physical therapist or occupational 06 therapist licensed under AS 08.84; a physician licensed under AS 08.64; a podiatrist; 07 a psychologist and a psychological associate licensed under AS 08.86; [AND] a 08 hospital as defined in AS 18.20.130, including a governmentally owned or operated 09 hospital; [AND] an employee of a health care provider acting within the course and 10 scope of employment; an ambulatory surgical facility and other organizations 11 whose primary purpose is the delivery of health care, including a health 12 maintenance organization, individual practice association, integrated delivery 13 system, preferred provider organization or arrangement, and a physical hospital 14 organization. 15 * Sec. 27. AS 09.55.560 is amended by adding new paragraphs to read: 16 (4) "professional negligence" means a negligent act or omission by a 17 health care provider in rendering professional services; 18 (5) "professional services" means service provided by a health care 19 provider that is within the scope of services for which the health care provider is 20 licensed and that is not prohibited under the health care provider's license or by a 21 facility in which the health care provider practices. 22 * Sec. 28. AS 09.60 is amended by adding a new section to read: 23 Sec. 09.60.080. Contingent fee agreements. If an attorney contracts for or 24 collects a contingency fee in connection with an action for personal injury, death, or 25 property damage and the damages awarded by a court or jury include an award of 26 punitive damages, the contingent fee due the attorney shall be calculated before that 27 portion of punitive damages due the state under AS 09.17.020(j) has been deducted 28 from the total award of damages. 29 * Sec. 29. AS 09.65 is amended by adding a new section to read: 30 Sec. 09.65.085. Civil liability of electric utility. (a) A utility offering 31 electrical service to the public for compensation under a certificate of public
01 convenience and necessity issued by the Alaska Public Utilities Commission under 02 AS 42.05.221 may not be held strictly liable for property damage, death, or personal 03 injury resulting from an act or omission of the utility relating to the production, 04 delivery, or sale of electricity. 05 (b) This section does not preclude liability for civil damages that are the result 06 of an intentional, reckless, or negligent act or omission. 07 * Sec. 30. AS 09.65 is amended by adding a new section to read: 08 Sec. 09.65.096. Civil liability of hospitals for certain physicians. (a) A 09 hospital is not liable for civil damages as a result of an act or omission by an 10 emergency room physician who is not an employee or actual agent of the hospital if 11 the hospital provides notice that the emergency room physician is an independent 12 contractor and the emergency room physician is insured as described under (c) of this 13 section. The hospital is responsible for exercising reasonable care in granting 14 privileges to practice in the hospital, for reviewing those privileges on a regular basis, 15 and for taking appropriate steps to revoke or restrict privileges in appropriate 16 circumstances. The hospital is not otherwise liable for the acts or omissions of an 17 emergency room physician who is an independent contractor. The notice required by 18 this subsection must (1) be posted conspicuously in all admitting areas of the hospital; 19 (2) consist of a sign at least two feet high and two feet wide, with print at least two 20 inches high; (3) be published at least annually in a newspaper of general circulation 21 in the area; and (4) be in substantially the following form: 22 Notice to Hospital Users and 23 Notice of Limited Liability 24 (Name of hospital) may not be responsible for the actions of 25 emergency room physicians in (name of hospital's emergency 26 room). The following emergency room physicians are 27 independent contractors and are not employees of the hospital:(List specific emergency room physicians) 28 (b) This section does not preclude liability for civil damages that are the 29 proximate result of the hospital's negligence or intentional misconduct. 30 (c) A hospital is not immune from liability under (a) of this section for an act 31 or omission of an emergency room physician who is an independent contractor unless
01 the emergency room physician has liability insurance coverage in the amount of at 02 least $500,000 for each incident and $1,500,000 for all incidents in a year, and the 03 coverage is in effect and applicable to those health care services offered by the 04 emergency room physician that the hospital is required to provide by law or by 05 accreditation requirements. 06 (d) In this section, 07 (1) "emergency room physician" means a physician who does not have 08 an ongoing physician-patient relationship with the emergency room patient and who 09 provides emergency health care services in a hospital emergency room; 10 (2) "hospital" has the meaning given in AS 18.20.130 and includes a 11 governmentally owned or operated hospital; 12 (3) "independent contractor" means an emergency room physician who 13 is not an employee or actual agent of the hospital in connection with the rendition of 14 the health care services. 15 * Sec. 31. AS 09.65.210 is repealed and reenacted to read: 16 Sec. 09.65.210. Damages resulting from commission of a felony or while 17 under the influence of alcohol or drugs. A person who suffers personal injury or 18 death or the person's personal representative under AS 09.55.570 or 09.55.580 may not 19 recover damages for the personal injury or death if the injury or death occurred while 20 the person was 21 (1) engaged in the commission of a felony, the person has been 22 convicted of the felony, including conviction based on a guilty plea or plea of nolo 23 contendere, and the party defending against the claim proves by clear and convincing 24 evidence that 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 party defending against the claim proves by clear and convincing 28 evidence 29 (A) the felonious conduct; and 30 (B) that the felonious conduct substantially contributed to the 31 personal injury or death;
01 (3) fleeing after the commission, by that person, of conduct that would 02 constitute an unclassified felony, a class A felony, or a class B felony or being 03 apprehended for conduct that would constitute an unclassified felony, a class A felony, 04 or a class B felony if the party defending against the claim proves by clear and 05 convincing evidence 06 (A) the felonious conduct; and 07 (B) that the conduct during the flight or apprehension 08 substantially contributed to the injury or death; 09 (4) operating a vehicle, aircraft, or watercraft while under the influence 10 of intoxicating liquor or any controlled substance in violation of AS 28.35.030, was 11 convicted, including conviction based on a guilty plea or plea of nolo contendere, and 12 the party defending against the claim proves by clear and convincing evidence that the 13 conduct substantially contributed to the personal injury or death; or 14 (5) engaged in conduct that would constitute a violation of 15 AS 28.35.030 for which the person was not convicted if the party defending against 16 the claim proves by clear and convincing evidence 17 (A) the violation of AS 28.35.030; and 18 (B) that the conduct substantially contributed to the personal 19 injury or death. 20 * Sec. 32. AS 09.68 is amended by adding a new section to read: 21 Sec. 09.68.130. Collection of settlement information. (a) Except as 22 provided in (c) of this section, the Alaska Judicial Council shall collect and evaluate 23 information relating to the compromise or other resolution of all civil litigation. The 24 information shall be collected on a form developed by the council for that purpose and 25 must include 26 (1) the case name and file number; 27 (2) a general description of the claims being settled; 28 (3) if the case is resolved by way of settlement, 29 (A) the gross dollar amount of the settlement; 30 (B) to whom the settlement was paid; 31 (C) the dollar amount of advanced costs and attorney fees that
01 were deducted from the gross dollar amount of the settlement before 02 disbursement to the claimant; 03 (D) the net amount actually disbursed to the claimant; 04 (E) the total costs and attorney fees paid by or owed by all 05 parties; and 06 (F) any nonmonetary terms, including whether the attorney fees 07 incurred by the claimant were based on a contingent fee agreement or upon an 08 hourly rate; if a contingent fee was paid, the percentage of the total settlement 09 represented by the fee must be included; or, if an hourly rate, the hourly rate 10 paid; 11 (4) if the case is resolved by dismissal, summary judgment, trial, or 12 otherwise, 13 (A) the gross dollar amount of the judgment; 14 (B) the amount of attorney fees awarded and to which party; 15 (C) the amount of costs awarded and to which party; 16 (D) the net amount, after deduction of (B) and (C) of this 17 paragraph, for which the prevailing party has judgment; 18 (E) the dollar amount of advanced costs and attorney fees that 19 were deducted from the gross dollar amount of the judgment before distribution 20 to the claimant; 21 (F) the total costs and attorney fees paid by defending parties; 22 and 23 (G) any nonmonetary terms, including whether the attorney fees 24 incurred by the claimant were based on a contingent fee agreement or upon an 25 hourly rate; if a contingent fee was paid, the percentage of the total settlement 26 represented by the fee must be included; or, if an hourly rate, the hourly rate 27 paid. 28 (b) The information received by the council under (a) of this section is 29 confidential. This restriction does not prevent the disclosure of summaries and 30 statistics in a manner that does not allow the identification of particular cases or 31 parties.
01 (c) The requirements of (a) of this section do not apply to the following types 02 of cases: 03 (1) divorce and dissolution; 04 (2) adoption, custody, support, visitation, and emancipation of children; 05 (3) children-in-need-of-aid cases under AS 47.10 or delinquent minors 06 cases under 47.12; 07 (4) domestic violence protective orders under AS 18.66.100 - 08 18.66.180; 09 (5) estate, guardianship, and trust cases filed under AS 13; 10 (6) small claims under AS 22.15.040. 11 * Sec. 33. AS 21.06 is amended by adding a new section to read: 12 Sec. 21.06.087. Insurance report. (a) The director shall require reporting of 13 and shall compile information necessary to evaluate the effect of the measures enacted 14 in this Act on the availability and cost of insurance in the state. 15 (b) Information described in (a) of this section shall be provided by all insurers 16 doing business in this state in the format specified by the director and must include 17 factual information stating premiums, claims, losses, expenses, and solvency of the 18 company as a whole. Information shall be compiled by the division in a way that 19 protects the identity of individual insureds. 20 (c) The director shall adopt regulations to implement and interpret this section, 21 including requiring insurers doing business in the state to provide information 22 necessary for the division to carry out its responsibilities under (a) and (b) of this 23 section. If there are indications of market disruption, the director may waive all or 24 part of the reporting requirements in this section. 25 (d) Beginning June 1, 2000, the information compiled under (a) of this section 26 shall be reported annually to the governor and the judiciary committees of both houses 27 of the legislature. 28 (e) The division may consult with the Alaska Judicial Council when 29 determining what information to require to be reported under (a) - (c) of this section 30 and when implementing the compilation required under (a) of this section. 31 * Sec. 34. AS 21.89.100(d) is amended to read:
01 (d) If the insured selects independent counsel at the insurer's expense, the 02 insurer may require that the independent counsel have at least four years of experience 03 in civil litigation, including defense experience in the general subject area at issue in 04 the civil action, and malpractice insurance. Unless otherwise provided in the insurance 05 policy, the obligation of the insurer to pay the fee charged by the independent counsel 06 is limited to the rate that is actually paid by the insurer to an attorney in the ordinary 07 course of business in the defense of a similar civil action in the community in which 08 the claim arose or is being defended. In providing independent counsel, the insurer 09 is not responsible for the fees and costs of defending an allegation for which 10 coverage is properly denied and shall be responsible only for the fees and costs 11 to defend those allegations for which the insurer either reserves its position as to 12 coverage or accepts coverage. The independent counsel shall keep detailed 13 records allocating fees and costs accordingly. A dispute between the insurer and 14 insured regarding attorney fees that is not resolved by the insurance policy or this 15 section shall be resolved by arbitration under AS 09.43. 16 * Sec. 35. AS 21.89.100 is amended by adding a new subsection to read: 17 (h) When an insured is represented by independent counsel, the insurer may 18 settle directly with the plaintiff if the settlement includes all claims based upon the 19 allegations for which the insurer previously reserved its position as to coverage or 20 accepted coverage, regardless of whether the settlement extinguishes all claims against 21 the insured. 22 * Sec. 36. AS 23.30.015(g) is amended to read: 23 (g) If the employee or the employee's representative recovers damages from 24 the third person, the employee or representative shall promptly pay to the employer the 25 total amounts paid by the employer under (e)(1)(A) - (C) [(e)(1)(A), (B), AND (C)] 26 of this section [,] insofar as the recovery is sufficient after deducting all litigation costs 27 and expenses. Any excess recovery by the employee or representative shall be 28 credited against any amount payable by the employer thereafter. If the employer is 29 allocated a percentage of fault under AS 09.17.080, the amount due the employer 30 under this subsection shall be reduced by an amount equal to the employer's 31 equitable share of damages assessed under AS 09.17.080(c).
01 * Sec. 37. AS 44.77.015(a) is amended to read: 02 (a) For the purposes of filing claims for medical services provided under 03 AS 47.07 or AS 47.25.120 - 47.25.300, "promptly," in AS 44.77.010(a), means (1) 04 within six months after the date of service, or as provided in (b) of this section, if 05 there is no third-party claim, or (2) within 12 months after the date of service if there 06 is a third-party claim. Except as provided in (c) of this section, a claim may not be 07 paid if it is not filed promptly; an inference to the contrary may not be drawn from 08 AS 09.10.053 [AS 09.10.050], AS 09.50.250 - 09.50.300, or AS 37.25.010. 09 * Sec. 38. Rule 16.1(c), Alaska Rules of Civil Procedure, is amended to read: 10 (c) Motion to Set Trial and Certificate. Unless otherwise ordered by the 11 court, a [A] motion to set trial may not be filed until after the meeting of parties 12 under (n) of this rule has occurred and the scheduling order under Rule 16(b) has 13 been issued [105 DAYS AFTER SERVICE OF THE SUMMONS AND 14 COMPLAINT]. A party seeking to obtain a trial date must serve and file a motion to 15 set trial together with a certificate, signed by counsel, stating: 16 (1) That the issues in the case have actually been joined; 17 (2) That all parties have completed discovery or have a reasonable 18 opportunity to do so within the next 60 days; 19 (3) That the procedure for listing witnesses and exhibits and providing 20 exhibit copies, as set forth in [PARAGRAPH] (d) of this rule has been completed; 21 (4) Whether trial by jury has been timely demanded; 22 (5) The estimated number of days for the trial, including estimates for 23 each party's case and for jury selection; 24 (6) The names, addresses and telephone numbers of all attorneys and 25 pro se parties who are responsible for the conduct of the litigation; 26 (7) Which, if any, statute or rule entitles the case to preference on the 27 trial calendar; 28 (8) That the parties have complied with [PARAGRAPH] (k) of this 29 rule. 30 * Sec. 39. Rule 16.1(n), Alaska Rules of Civil Procedure, is repealed and reenacted to read: 31 (n) Meeting of Parties. Except when otherwise ordered, the parties shall, as
01 soon as practicable after the exchange of initial disclosures required under Rule 02 26(a)(1) and in any event at least 14 days before a scheduling conference is held or 03 a scheduling order is due under Rule 16(b), meet to discuss the nature and basis of 04 their claims and defenses and the possibilities for a prompt settlement of the case and 05 to develop a proposed discovery plan. The attorneys of record and all unrepresented 06 parties that have appeared in the case are jointly responsible for arranging and being 07 present or represented at the meeting, for attempting in good faith to agree on the 08 proposed discovery plan, and for submitting to the court within 10 days after the 09 meeting a written report outlining the proposed discovery plan. The proposed 10 discovery plan shall indicate the parties' views and proposals concerning 11 (1) what changes should be made in the timing or forms of subsequent 12 disclosures under the rules, including a statement as to when the disclosures required 13 under Rule 26(a) were made; 14 (2) the subjects on which discovery may be needed, when discovery 15 should be completed, and whether discovery should be conducted in phases or be 16 limited to or focused upon particular issues; 17 (3) what changes should be made in the limitations on discovery 18 imposed under these rules and what other limitations should be imposed; 19 (4) whether a scheduling conference is unnecessary; 20 (5) whether there will be dispositive or partially dispositive motions 21 filed in the case and whether other deadlines should be set aside pending resolution of 22 the dispositive or partially dispositive motions by the court; and 23 (6) any other orders that should be entered by the court under Civil 24 Rule 16(b) and (c). 25 * Sec. 40. Rule 26, Alaska Rules of Civil Procedure, is amended by adding a new 26 subsection to read: 27 (g) Limited Discovery; Expedited Calendaring. In a civil action for personal 28 injury or property damage involving less than $100,000 in claims the parties shall limit 29 discovery to that allowed under Rule 1(a)(1), District Court Rules, and shall avail 30 themselves of the expedited calendaring procedures allowed under Rule 4, District 31 Court Rules.
01 * Sec. 41. Rule 41(a), Alaska Rules of Civil Procedure, is amended by adding a new 02 paragraph to read: 03 (3) Settlement Information. If a voluntary dismissal under this rule 04 is the result of compromise or other settlement of the parties, the parties shall submit 05 to the Alaska Judicial Council the information required under AS 09.68.130. A notice 06 of dismissal made under (1)[a] of this subsection must be accompanied by a 07 certification signed by or on behalf of the plaintiff that the information required under 08 AS 09.68.130 has been submitted to the Alaska Judicial Council. A stipulation of 09 dismissal made under (1)[b] of this subsection must be accompanied by a certification 10 signed by or on behalf of all parties who have appeared in the action. The 11 requirements of this paragraph do not apply to the types of cases listed in 12 AS 09.68.130(c). 13 * Sec. 42. Rule 72.1(g), Alaska Rules of Civil Procedure, is amended to read: 14 (g) Discovery. Except by leave of court, no discovery may be conducted until 15 the report of the Panel has been filed or until 60 [80] days after selection of the Panel 16 [HAVE ELAPSED FROM THE DATE THE CASE IS AT ISSUE], whichever is first 17 to occur, unless discovery is further stayed for good cause by order of the court. 18 * Sec. 43. Rule 95(b), Alaska Rules of Civil Procedure, is amended to read: 19 (b) In addition to its authority under (a) of this rule and its power to punish 20 for contempt, a court may, after reasonable notice and an opportunity to show cause 21 to the contrary, and after hearing by the court, if requested, impose a fine not to 22 exceed $50,000.00 [$1,000.00] against any attorney who practices before it for failure 23 to comply with these rules or any rules promulgated by the supreme court. 24 * Sec. 44. Rule 1(a)(1), District Court Rules of Civil Procedure, is amended to read: 25 (1) The procedure in civil actions and proceedings before district judges 26 and magistrates shall be governed by the rules governing the procedure in the superior 27 court to the extent that such rules are applicable. However, in a civil action for 28 personal injury or property damage, unless otherwise agreed by all parties or 29 permitted by order of the court in exceptional cases and for good cause shown, 30 discovery shall be limited to the disclosures required under Civil Rule 26(a) and 31 to the taking by each party of the deposition of one or more opposing parties and
01 of one additional person who is not a party. 02 * Sec. 45. Rule 4, District Court Rules of Civil Procedure, is amended by adding a new 03 subsection to read: 04 (b) In a civil action for personal injury or property damage, unless otherwise 05 permitted by order of the court in exceptional cases and for good cause shown, all 06 parties shall file a memorandum to set the case for trial, as set out in Civil Rule 40(b), 07 no later than 180 days after service of the complaint on all parties to the case. The 08 memorandum shall contain a certification that each party has exchanged the 09 information described in Rule 26(a), Alaska Rules of Civil Procedure, and may state 10 their separate positions if they do not agree concerning information or estimates to be 11 provided in the memorandum. After the court satisfies itself that the information 12 described in Rule 26(a), Alaska Rules of Civil Procedure, has been disclosed, the court 13 shall set the case for trial as soon as practicable, but no sooner than 30 days after the 14 court makes the determination regarding disclosure. 15 * Sec. 46. Rule 511, Alaska Rules of Appellate Procedure, is amended by adding a new 16 subsection to read: 17 (e) Settlement Information. If a dismissal under (a) or (b) of this rule is the 18 result of compromise or other settlement between the parties, the parties shall submit 19 to the Alaska Judicial Council the information required under AS 09.68.130. A 20 dismissal by agreement under (a) of this rule must be accompanied by a certification 21 signed by the attorneys of record for all parties that the information required under 22 AS 09.68.130 has been submitted to the Alaska Judicial Council. A dismissal by the 23 appellant or petitioner made under (b) of this rule must be accompanied by a 24 certification signed by the appellant's or petitioner's attorney of record. The 25 requirements of this subsection do not apply to the types of cases listed in 26 AS 09.68.130(c). 27 * Sec. 47. Rule 16.1(k)(4), Alaska Rules of Civil Procedure, is repealed. 28 * Sec. 48. AS 09.17.020(e), as enacted in sec. 10 of this Act, has the effect of amending 29 Rule 26, Alaska Rules of Civil Procedure, by limiting discovery in certain actions. 30 * Sec. 49. AS 09.17.020(j), as enacted by sec. 10 of this Act, has the effect of amending 31 Rule 58, Alaska Rules of Civil Procedure, by requiring the court to require that a certain
01 percentage of an award of punitive damages be deposited into the general fund. 02 * Sec. 50. AS 09.17.080(a), as amended by sec. 11 of this Act, has the effect of amending 03 Rule 49, Alaska Rules of Civil Procedure, by requiring the jury to answer the special 04 interrogatory listed in AS 09.17.080(a)(2) regarding the percentages of fault to be allocated 05 among the claimants, defendants, third-party defendants, persons who have been released from 06 liability, or other person who is potentially responsible for the damages. 07 * Sec. 51. AS 09.20.185, enacted by sec. 15 of this Act, has the effect of amending 08 Rule 702, Alaska Rules of Evidence, by requiring certain qualifications from a person 09 testifying as an expert witness. 10 * Sec. 52. AS 09.30.065, as amended by secs. 16 and 17 of this Act, has the effect of 11 amending Rules 68 and 82, Alaska Rules of Civil Procedure, by requiring the offeree to pay 12 costs and reasonable actual attorney fees on a sliding scale of percentages in certain cases, by 13 eliminating provisions relating to interest and by changing provisions related to attorney fee 14 awards. 15 * Sec. 53. AS 09.30.070(c), added by sec. 19 of this Act, has the effect of amending 16 Rule 58, Alaska Rules of Civil Procedure, by providing that prejudgment interest may not be 17 awarded for future economic or noneconomic damages or punitive damages. 18 * Sec. 54. ALTERNATIVE DISPUTE RESOLUTION. (a) It is the intent of this 19 legislation to create an alternative dispute resolution procedure within the existing civil 20 litigation system in order to promote the timely, inexpensive, and efficient resolution of civil 21 disputes. It is also the intent of this legislation that the Alaska Supreme Court implement the 22 alternative dispute resolution procedure not later than July 1, 1998. 23 (b) The Alaska Judicial Council shall consult with the Alaska Dispute Settlement 24 Association, review court sanctioned alternative dispute resolution programs in other states and 25 in the federal court system, and shall confer with and obtain the approval of the Alaska Court 26 System regarding the establishment of a program for alternative dispute resolution within the 27 Alaska Court System. The Alaska Judicial Council shall submit a proposed statute or rule 28 change, or both, and a report to the legislature by December 31, 1997. The proposed statute 29 or rule change and report must include specific types of programs, specific types of cases 30 within each program that are amenable to alternative dispute resolution, the cost to the parties 31 and to the Alaska Court System under these programs, and the qualifications of the neutral
01 parties, including nonlawyers, who will provide dispute resolution services under the program. 02 The work required under this section shall be completed for the amount of money appearing 03 on the fiscal note submitted by the Alaska Judicial Council dated March 17, 1997. 04 (c) In this section, "alternative dispute resolution" is limited to arbitration, mediation, 05 and early neutral evaluation. 06 * Sec. 55. APPLICABILITY. This Act applies to all causes of action accruing on or after 07 the effective date of this Act. 08 * Sec. 56. SEVERABILITY. Under AS 01.10.030, if any provision of this Act or the 09 application of a provision of this Act to any person or circumstance is held invalid, the 10 remainder of this Act and the application to other persons shall not be affected.