Legislature(2005 - 2006)SENATE FINANCE 532
01/19/2005 02:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB10 | |
| SB22 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 10 | TELECONFERENCED | |
| *+ | SB 22 | TELECONFERENCED | |
SB 10-PARENTAL LIABILITY FOR CHILD'S DAMAGE
2:27:55 PM
MR. WAYNE LEIGHTY, staff to Senator Guess, presented the bill.
He said the intent of SB 10 is to hold minors who vandalize and
parents financially accountable for the vandalism. It makes some
changes to the existing statute regarding vandalism done by
minors. The changes would be to remove the cap on damages
recoverable. Currently there is a $15,000 cap unless the person
has insurance that would cover it. In that case the cap is
$25,000. SB 10 would lift that cap. It would allow the courts to
hold the parents and the minor responsible for the damages. It
would require the courts to implement a payment schedule based
on the party's ability to pay. It would end parent liability
when the minor turns 18 at which point the minor would be
responsible for the remaining damages.
CHAIR DYSON announced that Senator Guess was now online and
asked her to make a statement.
SENATOR GUESS added they are amending the civil and not the
criminal proceedings. In a criminal proceeding full restitution
can be charged to the minor child along with jail time. Again,
she said, this is an amendment for the civil proceedings. She
stated the bill was heard two years ago and was changed mostly
on the House side. It went from a $10,000 cap to a $15,000 and
$25,000 cap. The main concept was to not bankrupt parents. They
tried to balance this by inserting language in Section 2 that
lifts the cap and holds minors accountable and sets up
reasonable payment schedules based on financial ability to pay.
The parents are liable only if the court sees they are liable,
then they are liable only until the child is 18, after which,
the remainder of the restitution falls on the child. She
asserted they tried to balance the argument of two years ago of
why they can't lift the cap, and tried to broker the compromise
with the language.
CHAIR DYSON asked Senator Guess why she believes this is
necessary.
SENATOR GUESS stated two reasons. It sends a statement from the
community to young people that says you should be fully
accountable for your actions and, right now, that accountability
is limited and secondly, for the impact to the community. Not
all vandalism is against a schoolyard. Often it is a business, a
park, or a municipality. After the cap, the remaining damages
are borne by the victims. After the $15,000 taxpayers have to
pay the rest of it.
2:34:17 PM
CHAIR DYSON asked for question for Senator Guess. Hearing none
he identified the witnesses and asked for Sheldon Winters to
testify.
SHELDON WINTERS, lobbyist, State Farm Insurance Company,
identified himself.
CHAIR DYSON asked if he represented State Farm statewide.
MR. WINTERS affirmed he did, and that he did not represent any
other carriers. State Farm's primary concern is removal of the
cap. He added two years ago they worked hard on the current law,
with a lot of compromise, and it has only been in effect for 18
months. He asked the number of instances there have been when
property owners were unable to recoup the damages. He said they
know of no other area where strict liability is imposed on one
person, regardless of fault, for the acts of another. He
maintained it is not fair. He used an example of a parent who
does everything right, but the child still goes out and makes a
costly mistake. With the current law, the parent is on the hook
but there is a balance with the cap. He maintained it is a
reasonable limitation. He said without cap there could be dire
consequences, and he cited an example of a family that has saved
for college for several children. If one of them were to commit
a "bad act", the family could lose all of the college money for
the other children. He said the consequences could affect more
than just the wrongdoer.
He advised there are all sorts of policy reasons that they don't
hold people strictly liable for the conduct of someone else. He
said the basic premise of third party liability insurance is
that it is based on accidental occurrences. He said there is a
potential effect on homeowners insurance. He stated that rates,
underwriting, is based on accidental occurrences. Liability
insurance was never intended to respond to vicarious liability
for somebody else's intentional destructive conduct. He said
it's one thing to be looked at for responsibility for negligent
conduct, it's quite another to hold them liable for doing
nothing wrong. He advised there is a potential affect on rates.
He said give the current law time to work and see if it is
effective.
SENATOR GREEN asked Mr. Winters, "Do you feel that liability of
State Farm Insurance and other carriers is increased by SB 10?"
MR. WINTERS replied yes because it does away with subsection
(d).
SENATOR GREEN asked, "which was the $10,000 if you're insured?"
MR. WINTERS answered it does away with the $15,000 and then it
does away with subsection (d), and subsection (d) currently
states:
(d) If a parent has an insurance policy that
would compensate a claimant for civil damages
described under (a) of this section, and the policy
limits are in excess of $15,000, civil damages may be
recovered under (a) of this section in an amount not
to exceed the policy limits or $25,000, whichever
amount is lower.
He emphasized the cap is on the parent of $15,000; if they have
applicable insurance, the cap is $25,000.
SENATOR GREEN announced her husband is an employee of State Farm
Insurance, and she asked, "what age does child have to be for
the insurer to be held liable?"
MR. WINTERS said the child has to be under the age of 18.
SENATOR GREEN offered a "for instance" of, if a child injured
another child, the medical care could be charged to the
homeowner's policy of the offender's parents. She said she
thought the child had to be under the age of 12.
2:41:47 PM
MR. WINTERS advised he did not know of any age restrictions on
the policy itself.
SENATOR GREEN asked whether he thought insurance carriers would
be liable for the full extend of a vandals actions.
MR. WINTERS said with these changes, "and I believe the intent
is clear", if a 10 year old goes out and does $100,000 damage,
and the parents have a homeowners policy, the policy pays to the
policy limit."
SENATOR GREEN asked Senator Guess if that was the intention of
the bill.
SENATOR GUESS responded that was not the intention at all. The
reason for removing subsection (d) was because it capped how
much someone could recover. There was no intention of impacting
the insurance or how much the recovery could be on the
insurance. She said she is not sure what the difference between
this recovery and another act would be and maybe Mr. Winters
could expand on that. She said, "it was the intention to lift
the $25,00, for example, if it was a $100,000 bill that full
restitution can be paid."
MR. WINTERS replied subsection (d) is completely removed, and
that is the cap on the insurance policy. Under the current law,
if there is $100,000 in damage, the most the insurer would be
liable to pay under the policy would be the $25,000, and that
section is now removed.
SENATOR GREEN said more work is needed. She stated that she
knows it was the intention to make it very clear that vandals
and or parents would be responsible for the damage the vandal
did. She asked Mr. Winters if they have considered a change that
might make this better.
MR. WINTERS answered if they clear up the intent that they could
work together.
CHAIR DYSON said he was startled by Mr. Winter's comment and his
implication that the common law has never said that parents are
responsible for the actions of their children. He asked Mr.
Winters to clarify if that is what he meant.
MR. WINTERS replied what he meant was that the common law has
never implied strict liability to a person for the conduct of
another person. He cited an example of negligent entrustment in
an automobile liability case. "If my child has four accidents
and if I still choose to lend my child my car, and he goes out
and gets into a fifth accident then, under the law, I arguably
could be responsible for that." He went on to say that he could
be super dad and his kid could be super kid but if the kid goes
out and does one thing wrong then he could be liable for it and
that's the difference.
CHAIR DYSON argued common law tradition has always said that
parents of minor children are responsible for their conduct and
that is where responsibility lies. He commented:
Does the fact that this bill provides for the
repayment program after age 18 the child assumes all
of it, and I suspect there will be a payment schedule
there and that you as the carrier for the parent would
not be liable for any part of the payment that happens
after the child reaches age 18? So it's only a portion
that the parent and the child are responsible before
the child reaches the age of 18 that you, as a
carrier, might be responsible for. Could that be
structured in a way that would help your industry have
a limited exposure because you'd only be liable for
the parents' portion up till the age the child reaches
majority?
2:47:50 PM
MR. WINTERS replied:
Our concern would be a 14-year-old child who commits
something and the parents have no knowledge of the
child's propensity to do this, and the parents have
$100,000 saved up for the other children's college. I
seriously doubt, and this doesn't require the court,
to set up a payment plan where that $100,000 isn't
gone by the time the child is 18. So the concern is
about the assets of the parent before the child is 18.
CHAIR DYSON asked him about his earlier testimony regarding most
carriers assuming responsibility for accidental actions on the
part of their client. He asked:
Can you rewrite your policies so that you're only
covering accidents and not the intentional, in this
case, criminal actions of your policyholders?
MR. WINTERS replied:
The policies already exclude intentional conduct but
it would exclude the intentional conduct of the child.
The parent, who is the insured, or uninsured, is not
being held liable for any intentional conduct. They're
being held liable for strict liability and under the
policy, the parents would be liable, even though the
primary act was intentional conduct of the children,
the parent didn't do anything intentional or even
accidental. They are being held liable simply for
being the status of a parent. So, yes it already
exludes intentional conduct of the child that
exclusion does not apply to the liability of the
parent under this statute.
CHAIR DYSON asked Senator Guess if she wanted to reply to Mr.
Winter's comments.
SENATOR GUESS asked Mr. Winters whether policies could be
rewritten to deal with these cases and take into consideration
new laws such as this to limit the liability of the parents. She
references page 2, line 10. She stated there are two things in
that section. Further:
What didn't happen in the previous law is that the
court can decide that the parents aren't liable and
only the child is liable. It puts the child in with
the parents in the court trial, so maybe you do have
the parents that did everything right and, the court
can say, 'you did everything right', and the child
will be liable. You can also have parents who do look
the other way, and they have never been held
accountable. What I tried to do is to give the courts
that discretion. So it wasn't always falling on the
parents, which it is doing right now.
Secondly, it was the intent of bill that they look at
the family's ability to pay so they don't bankrupt the
families and they don't take all assets and all the
education funds from that family and the other
children. If people think that we need clarifying
language or intent language to go along with that,
when we worked with the drafters and Pam, from Leg
Legal, was the person who drafted this, that was the
direction that we set forth, so I actually think, from
hearing Mr. Winters' testimony that the intent, a lot
of it, is the same, I believe. I also note that it
should be in your Packet, just in 2004 what the
vandalism was in the Anchorage School District, and I
think there were four or five schools. And so I
appreciate there was work on this two years ago but I
don't think we spent the time two years ago to get the
policy right. We're still seeing large damages done
that I think we need to address at this time.
CHAIR DYSON announced his suspicion they would not finish today
and stated he wanted to take all of the testimony. He asked Mr.
Winters how many homeowners policies State Farm has in this
state, and how many claims for vandalism there have been against
homeowner policies in this state.
MR. WINTERS offered to find out and get the information to the
committee.
CHAIR DYSON commented to Mr. Winters that he has good issue, but
he wanted to find out more specific information.
SENATOR GREEN said:
I do think that what Mr. Winters said has something to
it, that there is probably not the incentive now, to
the same extent getting insurer involved, as there
would be if it were (indisc). I think it's a totally
different conversation. It's interesting to read the
language though, which says, 'it is the intent of the
Legislature to hold those who vandalize property
financially accountable for their actions.' If we can
get more of an intent language in that might be a cure
for the issue.
MR. WINTERS added with the clarification from Senator Guess
regarding the language, they could work together towards getting
more acceptable language.
CHAIR DYSON asked Crystal Kennedy for her testimony.
2:55:22 PM
CRYSTAL KENNEDY, Anchorage School Board member and Chairman of
the legislative sub-committee of the School Board, reported the
issue is very important to the Anchorage School Board. She cited
a report that listed $841,058.14 worth of vandalism that
occurred against the Anchorage School District from December of
2001 to August of 2004. They have only been able to recover
$1,700.
Since current legislation took effect in July of 2003, they have
incurred well over $500,000 in damages have only been able to
recoup $600. They agree with Senator Guess; it is an issue with
taxpayers that the school board can't recoup the damage money.
She cited support from the Anchorage Police Department, the
mayor and an editorial from the Anchorage Daily News.
CHAIR DYSON asked Ms. Kennedy how many perpetrators were known.
MS. KENNEDY stated all of the known perpetrators were listed on
the spreadsheet.
2:59:01 PM
CHAIR DYSON asked Ms. Kennedy whether they were unable to
recover damages because the perpetrators had no assets.
MS. KENNEDY answered she could not answer the question
specifically.
LARRY WIGGETT, director of government relations, interrupted to
report at Bartlett High School there have been a total of $250
collected against their damages. He believes there is a payment
schedule set up but this is all the district has been able to
recover.
CHAIR DYSON remarked it would be very helpful to know why there
has been no recovery. He asked if the issue is that the cap was
keeping them from recovery. It would be very helpful if their
list were more definitive to see if the steps they were taking
in the committee would help with their problem. He didn't think
it would help.
MR. WIGGETT answered he would investigate and report the
findings to the committee.
CHAIR DYSON alleged there were problems other places in the
system.
SENATOR GREEN asked Mr. Wiggett whether it was court-ordered
restitution.
MR. WIGGETT answered he did not have in depth knowledge of the
situation but believes it was court-ordered.
CHAIR DYSON asked for further questions for Ms. Kennedy and
hearing none, called witness Julie Morris.
3:01:32 PM
JULIE MORRIS, Juneau School Board member, said the school board
supported SB 10. If the school board had to pay to fix windows,
it would mean less money for textbooks or needed items for the
students. Her biggest concern is they are using student money
for maintenance and repair. A huge rock was thrown through the
Juneau Douglas High School window and resulted in thousands of
dollars in damage. The board would like to be able to pursue and
recover the damages.
SENATOR GREEN asked whether schools have insurance for damage
and if so, are they able to recover the cost of the damage.
MS. MORRIS answered she didn't have that information, but would
get it from the superintendent.
SENATOR GREEN reiterated her question of the school's insurance
and whether they could recover damages if it's a criminal act.
CHAIR DYSON asked Mr. Wiggett whether the Anchorage School
District has insurance that covers against vandalism.
MR. WIGGETT replied he thought they have property insurance with
a $100,000 deductible per incident. The list given to the
committee included major vandalism that occurred since December
2001, and there were other incidents with much smaller damage
amounts.
CHAIR DYSON announced they would get back to the issue next
week. He asked for specific information on the school's
insurance, other vandalism items, what the carrier has had to
pay, and the overall cost of the insurance.
SENATOR WILKEN asked Mr. Wiggett the total budget for the
Anchorage School District.
MR. WIGGETT responded it was $540 million.
SENATOR WILKEN asked Mr. Wilken whether the same juvenile set
fire to the playground equipment in three different places.
MR. WIGGETT answered it was three different juveniles.
CHAIR DYSON asked for other questions. Hearing none he called
Carl Rose to testify.
3:07:23 PM
CARL ROSE, executive director of the Association of Alaska
School Boards, advised that he also serves on the board of
directors of the Alaska Public Entities Insurance Company that
insures schools. He had a written statement that he would leave
with Wayne Leighty. He said SB 10 is a balanced approach with a
semblance of justice. It would allow the courts to weigh the
circumstances of the crime, and to look at the family situation
and render a fair but accountable method of recovery. He said he
thinks that insurance companies are always in support of
segregation.
He cited the case of Fort Yukon losing their school due to
faulty wiring. They pursued segregation to recover some of the
money from faulty construction. He supports the bill and the
intent.
SENATOR GUESS advised Chair Dyson she would work on the issue of
third party liability and what removing subsection (d) would do
regarding third party liability.
CHAIR DYSON stated this committee is HESS, responsible for
education. They need more answers and he would not send problems
to the Judiciary Committee until they have more answers.
He recognized Mary Francis and invited her to speak.
3:11:40 PM
MARY FRANCIS, executive director of the Counsel of School
Administrators, said she represents and works with all the
school administrators and school business officials in the
state. She had a resolution for the committee to consider. She
announced that Fairbanks spent over $70,000 on vandalism in FY
2003 and over $60,000 in FY 2004. In Anchorage they typically
budget over $300,000 for vandalism, primarily for repair costs,
which does not include personnel clean up costs. Mat-Su budgets
$50,000 for repairs and Juneau budgets $40,000. The schools are
required to spend 70 percent of the budget on instruction.
Superintendents have informed her that the costs of repairs are
rarely recovered and very few perpetrators are caught.
CHAIR DYSON asked her to find out how many schools have had
their recovery limited by the imposed cap because the problem of
recovery is what needs to be addressed and the cap doesn't seem
to be the issue. He informed the witnesses that he would like to
know how many cases went against homeowner policies, how many
where recovery was limited, and whether other recovery problems
might be identified. He asked Senator Guess if she minded
holding the bill over until next week.
SENATOR GUESS answered no.
CHAIR DYSON commented they could be clearer on the language that
limits the insurance company liability previous to the
perpetrator reaching maturity, and tailor it so that the child
doing the damage carries the majority of the responsibility
after maturity.
CHAIR DYSON closed the hearing on SB 10 and held the bill in
committee.
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