Legislature(1993 - 1994)

04/09/1994 10:10 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL NO. 292                                                           
                                                                               
       "An  Act  relating to  civil  actions;  amending Alaska                 
       Rules of Civil  Procedure 49 and 68; and  providing for                 
       an effective date."                                                     
                                                                               
  SHERRIE GOLL, ALASKA WOMEN'S LOBBY spoke in opposition to HB
  292.   She  maintained that the  legislation will  limit the                 
  rights of women and  children to be justly compensated  when                 
  they are the victims of someone else's reckless and careless                 
  conduct.  She  pointed out  that there is  a $10.0  thousand                 
  dollars cap on  non-economic damages  for a single  person's                 
  death as the  result of  negligence.  She  gave examples  of                 
  claims that would be limited or barred by the legislation.                   
                                                                               
  Ms. Goll noted that  there is no mandate to  lower insurance                 
  premiums.  She  discussed the  cap on non-economic  damages.                 
  She maintained that non-economic damages can be articulated.                 
  She  asserted  that  caps adversely  affect  those  that are                 
  catastrophically injured.  She questioned  the cap placed on                 
                                                                               
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  catastrophically injured individuals and  the definitions of                 
  "catastrophic."  She noted that the Alaska Women's Lobby and                 
  Kidpac have problems with several portions of the bill.  She                 
  urged that the bill not be moved.                                            
                                                                               
  REPRESENTATIVE  BRIAN   PORTER  explained  that   the  $10.0                 
  thousand dollars  cap on  non-economic damages  is for  non-                 
  dependents.  He clarified that there are three categories of                 
  damages,  economic, non-economic and  punitive.   He briefly                 
  defined  the  categories.    He  noted that  dependents  can                 
  recover economic damages.  He  observed that amendments have                 
  been adopted  to  alleviate concerns.    He noted  that  the                 
  legislation does not contain caps for economic damages.   He                 
  further discussed caps contained in the bill.                                
                                                                               
  Representative Parnell MOVED to ADOPT  AMENDMENT 1 on behalf                 
  of  Representative Porter  (copy on  file).   Representative                 
  Porter explained  that amendment 1  would insert  "prolonged                 
  exposure to hazardous  waste" as an exception to the statute                 
  of repose.  There being NO OBJECTION, it was so ordered.                     
                                                                               
  Representative  Porter  provided  members  with AMENDMENT  2                 
  (copy on file).  He explained that the amendment would place                 
  in  statute  civil  rule 11.    The  amendment  is aimed  at                 
  reducing the motivation  of filing  specious lawsuits.   The                 
  amendment would require sanctions from the court.  The court                 
  "shall" implement sanctions of up  to $10.0 thousand dollars                 
  if it rules that a case without merit.                                       
                                                                               
  Representative Parnell MOVED to ADOPT AMENDMENT 2.                           
                                                                               
  CHRIS CHRISTENSEN,  GENERAL  COUNSEL,  ALASKA  COURT  SYSTEM                 
  testified  that  the amendment  would  mandate the  court to                 
  place  sanctions.    He recommended  that  the  court retain                 
  discretion.  He  suggested that  the amendment may  increase                 
  the Alaska Court System's fiscal note.                                       
                                                                               
                                                                               
  MIKE  FORD,   LEGAL  COUNSEL,  LEGISLATIVE   AFFAIRS  AGENCY                 
  stressed that the  amendment could  be interpreted to  cover                 
  specious  motions  or  pleading.    He  suggested  that  the                 
  amendment could act as a disincentive for specious actions.                  
                                                                               
  Representative  Brown OBJECTED.  A roll  call vote was taken                 
  on the MOTION.                                                               
                                                                               
  IN FAVOR: Grussendorf,  Navarre,  Hanley,  Martin,  Parnell,                 
                 Therriault, MacLean, Larson                                   
  OPPOSED:  Brown                                                              
                                                                               
  Representatives Foster  and  Hoffman were  absent  from  the                 
  vote.                                                                        
                                                                               
                                8                                              
                                                                               
                                                                               
  The MOTION PASSED (8-1).                                                     
                                                                               
  Mr.  Ford gave  a brief overview  of legislative  history of                 
  tort reform.                                                                 
                                                                               
  (Tape Change, HFC 94-118, Side 1)                                            
                                                                               
  Mr. Ford briefly reviewed the legislation by section.                        
                                                                               
  Representative Porter  clarified that an  injury accrues  at                 
  the time that the injury is discovered  or reasonably should                 
  have  been  discovered as  opposed  to the  time  the injury                 
  occurred.                                                                    
                                                                               
  Representative Brown provided members with AMENDMENT 3 (copy                 
  on file).   She explained  that amendment 3  would make  the                 
  purpose section consistent with the findings.  The amendment                 
  would  insert  "except in  a  few limited  circumstances" to                 
  acknowledge that some injuries will not be compensated.                      
                                                                               
  Representative Brown MOVED to ADOPT AMENDMENT 3.                             
                                                                               
  JEFF FELDMAN,  ATTORNEY, ALASKA TRIAL LAWYERS  asserted that                 
  false statements are made  in both the findings  and purpose                 
  sections  of  the  legislation.    He  maintained  that  the                 
  legislation  would exclude a great number of claims beyond a                 
  limited set of circumstances.                                                
                                                                               
  MIKE  LEISMEIR,  ATTORNEY disagreed  with  Mr. Feldman.   He                 
  alleged that  circumstances which  are specifically  defined                 
  will be effected.                                                            
                                                                               
  Representative Navarre  stressed that  the legislation  will                 
  bar all kinds  of claims.   He stated  that the  legislation                 
  reduces  the  cost of  litigation  by  barring  claims.   He                 
  estimated that the state  would pick up the cost  of injured                 
  parties.                                                                     
                                                                               
  Representative Martin OBJECTED.  A roll call vote was  taken                 
  on the MOTION to adopt amendment 3.                                          
                                                                               
  IN FAVOR: Brown,  Grussendorf,  Navarre,   Hanley,  Parnell,                 
                 Therriault, MacLean, Larson                                   
  OPPOSED:  Martin                                                             
                                                                               
  Representatives  Foster and  Hoffman  were  absent from  the                 
  vote.                                                                        
                                                                               
  The MOTION PASSED (8-1).                                                     
                                                                               
  Representative Brown provided members with AMENDMENT 4 (copy                 
                                                                               
                                9                                              
                                                                               
                                                                               
  on file).  She  explained that amendment 4 would  remove the                 
  statute  of  repose  proposal  from  the legislation.    She                 
  emphasized  that the  Attorney  General  suggested that  the                 
  proposal may be unconstitutional.                                            
                                                                               
  Mr.  Feldman  agreed that  the  statute of  repose provision                 
  would be held unconstitutional  by the court.   He explained                 
  that  the  statute  of  repose  would divide  citizens  into                 
  separate classes.                                                            
  He   maintained  that   the  provision   will  create   more                 
  litigation.                                                                  
                                                                               
  Mr.  Leismeir  stressed  that  the   issue  is  whether  the                 
  legislature has  the authority to adopt a statute of repose.                 
  He disagreed that the Supreme Court would reject any statute                 
  of repose.  He held that the proposal applies equally to all                 
  parties.                                                                     
                                                                               
  Representative Martin discussed the section of severability.                 
                                                                               
  REPRESENTATIVE JIM  NORDLUND recommended that  the Committee                 
  consider  the  Attorney General's  opinion.   He  quoted the                 
  opinion  as stating:   "We  believe that the  Alaska Supreme                 
  Court  will  probably find  the  proposed statute  of repose                 
  invalid under  several alternative provisions  of the Alaska                 
  Constitution  including;  equal  protection,   due  process,                 
  obligation of contracts, and right to a jury trial."                         
                                                                               
  Representative Parnell noted that lawyers can differ.                        
                                                                               
  Mr. Feldman  stressed that  class distinctions  are not  the                 
  same  under  the statute  of repose.    He gave  examples of                 
  differentials of when  citizens could  bring their claim  to                 
  court.                                                                       
                                                                               
  Representative Brown emphasized that  the statute of  repose                 
  provision  would  barr claims  after  six years.    She gave                 
  examples of  cases where  individuals would  not be  able to                 
  seek compensation.                                                           
                                                                               
  Representative Porter  spoke in  support of  the statute  of                 
  repose provision.   Discussion pursued regarding theoretical                 
  cases involving the proposed statute of repose provision.                    
                                                                               
  (Tape Change, HFC 94-118, Side 2)                                            
                                                                               
  A roll call vote was taken on the MOTION to adopt  AMENDMENT                 
  4.                                                                           
                                                                               
  IN FAVOR: Brown, Navarre, Larson, MacLean                                    
  OPPOSED:  Hanley, Martin, Parnell, Therriault                                
                                                                               
                                                                               
                               10                                              
                                                                               
                                                                               
  Representatives Foster, Grussendorf and  Hoffman were absent                 
  from the vote.                                                               
                                                                               
  The MOTION FAILED (4-4).                                                     
                                                                               
  Representative Brown provided members with AMENDMENT 5 (copy                 
  on  file).   She  explained  that amendment  5  would delete                 
  personal injury and death from the statute of repose.                        
                                                                               
  Mr. Ford stated  that the amendment would  remove references                 
  to  personal  injury.    The  six  year  statute  of  repose                 
  pertaining to property damage would remain.                                  
                                                                               
  Representative Brown MOVED to ADOPT AMENDMENT 4.                             
                                                                               
  Mr.   Ford  maintained  that   the  amendment  would  reduce                 
  constitutional issues.                                                       
                                                                               
  Representatives Brown and  MacLean spoke  in support of  the                 
  amendment.  Representative Porter spoke in opposition to the                 
  amendment.                                                                   
                                                                               
  A roll call vote was taken on  the MOTION to adopt AMENDMENT                 
  5.                                                                           
                                                                               
  IN FAVOR: Navarre, Brown, MacLean                                            
  OPPOSED:  Hanley, Martin, Parnell, Therriault, Larson                        
                                                                               
  Representatives Foster, Grussendorf and Hoffman were  absent                 
  from the vote.                                                               
                                                                               
  The MOTION FAILED (3-5).                                                     
                                                                               
  Representative Brown  MOVED to  ADOPT AMENDMENT  6 (copy  on                 
  file).    She  explained  that   amendment  6  would  delete                 
  manufactured  products  from  the statute  of  repose.   She                 
  asserted that out-of-state manufacturers  would be protected                 
  at the expense of Alaskan citizens.                                          
                                                                               
  REPRESENTATIVE JIM NORDLUND spoke in support of amendment 6.                 
  Representative Porter spoke in opposition to amendment 6.                    
                                                                               
  A roll call  vote was taken on the MOTION to adopt AMENDMENT                 
  6.                                                                           
                                                                               
  IN FAVOR: Navarre, Brown, MacLean                                            
  OPPOSED:  Hanley, Martin, Parnell, Therriault, Larson                        
                                                                               
  Representatives Foster, Grussendorf and  Hoffman were absent                 
  from the vote.                                                               
                                                                               
  The MOTION FAILED (3-5).                                                     
                                                                               
                               11                                              
                                                                               
                                                                               
  Representative MOVED to  ADOPT AMENDMENT  7 (copy on  file).                 
  She explained that amendment 7  would delete "an intentional                 
  or reckless disregard of specific" and insert "a failure  to                 
  follow applicable."                                                          
                                                                               
  Mr.  Ford  explained that  the  amendment would  broaden the                 
  language of the bill.                                                        
                                                                               
  Mr. Feldman emphasized that proving "intentional or reckless                 
  disregard" is virtually impossible.                                          
                                                                               
  Representative Porter stressed the difference between simple                 
  or  gross  negligence.   He noted  that  it is  difficult to                 
  defend against actions which took place prior to six years.                  
                                                                               
  A roll call vote was taken  on the MOTION to adopt AMENDMENT                 
  7.                                                                           
                                                                               
  IN FAVOR: Navarre, Brown, Larson                                             
  OPPOSED:  Hanley, Martin, Parnell, Therriault,                               
                                                                               
  Representatives  Foster,  Grussendorf,  MacLean and  Hoffman                 
  were absent from the vote.                                                   
                                                                               
  The MOTION FAILED (3-4).                                                     
                                                                               
  Representative Brown  MOVED to  ADOPT AMENDMENT  8 (copy  on                 
  file).  She explained that  amendment 8 would change statute                 
  of repose provisions from 6 to 15 years.  She noted  that HB
  160 contains a 15 year statute of repose provision.                          
                                                                               
  Mr.  Ford   cautioned  against  adopting   legislation  with                 
  different periods  for statute  of  repose.   Representative                 
  Porter spoke in support of a six year statute of repose.                     
                                                                               
  Representative  Parnell MOVED to  AMEND Amendment  8, delete                 
  "15  years"  and insert  "10  years".   Representative Brown                 
  OBJECTED.    Discussion  pursued  regarding  periods  for  a                 
  statute of  repose.   A  roll  call vote  was taken  on  the                 
  MOTION.                                                                      
                                                                               
  IN FAVOR: Hanley, Martin, Parnell, Therriault, Larson                        
  OPPOSED:  Brown, Grussendorf, Navarre                                        
                                                                               
  The MOTION PASSED (5-3).                                                     
                                                                               
  HB 292 was HELD in Committee for further discussion.                         

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