Legislature(2003 - 2004)
04/02/2003 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 214 - PUNITIVE DAMAGES AGAINST EMPLOYERS Number 0093 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 214, "An Act relating to the recovery of punitive damages against an employer who is determined to be vicariously liable for the act or omission of an employee; and providing for an effective date." Number 0172 CHAIR McGUIRE asked whether anyone wished to testify; hearing no response, she then closed public testimony. The committee took an at-ease from 1:10 p.m. to 1:12 p.m. Number 0196 CHAIR McGUIRE brought attention to written amendments provided by Representative Gara. Amendment 1 read [original punctuation provided]: Page 2, line 2. After "acted" Delete: "recklessly" Insert: "negligently" Amendment 2 read [original punctuation provided]: Page 2, line 2. After "employing" Insert: ", supervising or retaining" [A third amendment, never formally offered, would amend page 2, line 1, by deleting "and" and inserting "or" after "omission".] CHAIR McGUIRE reopened public testimony. Number 0275 RAY R. BROWN, Attorney at Law, Dillon & Findley, PC, informed members that his letter [dated April 2, 2003, also signed by Michael J. Schneider] fairly outlines his responses to comments about Laidlaw Transit, Inc. v. Crouse placed on the record at the previous hearing of HB 214. He specified that the letter relays concerns about how far HB 214 goes and that the bill doesn't track the [Restatement (Second) of Agency]. He strongly urged the committee, if it takes action on the bill, to look at Section 909 of the Restatement (Second) of Torts, which he said Section 217(c) of the Restatement (Second) of Agency refers to and relies upon for interpretation and illustration. MR. BROWN alluded to the portion of his letter [on pages 2-3] that quotes from the Restatement (Second) of Torts as follows: Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act. MR. BROWN offered his belief that the stated purpose of the bill wouldn't protect employees adequately, particularly if one looks at the language proposed in the bill versus that in Section 909 of the Restatement (Second) of Torts. He said the principal difference, as pointed out [in his letter], is that under the Restatement (Second) of Torts, not only the employer is couched in terms of the principal; rather, it includes - which it should, he opined - the managerial agent who is authorized. Number 0380 MR. BROWN highlighted the significance of the fact that included [in subsection (b) of the Restatement (Second) of Torts, quoted previously] is recklessness not only in employing, but also in retaining, since it says "or retaining". Referring to testimony by him and Mr. Schneider at the bill's previous hearing, he explained that not just the employment of the individual is problematic; it is also the supervision and training, which gets to the issue of whether the employer should have retained a person, notwithstanding the fact that [the employer] had exercised due diligence in the hiring process. Mr. Brown also noted that subsections (c) and (d) [of the Restatement (Second) of Torts, cited above] include the terms "managerial capacity" and "managerial agent". He said those terms are significant. MR. BROWN proposed, in the worst-case scenario, that the committee adopt the language of Section 909 of the Restatement (Second) of Torts. However, for adequate balance between protecting the employer and employee, he suggested [as put forth in his letter on page 3, that the committee adopt Section 909 of the Restatement (Second) of Torts, except] to add ["supervising"] to subsection (b), so that it would read "employing, supervising, or retaining", and to change "reckless" to "negligent". That would fully protect the well-reasoned concerns raised by the representative from ERA [Aviation, Inc.] who testified at the bill's previous hearing, he told members. Number 0480 CHAIR McGUIRE indicated those issues would be taken up by the committee when considering the written amendments. Number 0518 MICHAEL R. WIRSCHEM, Attorney at Law, informed members that since his previous testimony, he had done research on what the Alaska Judicial Council (AJC) has found. He noted that he would summarize the three studies posted on the AJC's web site. Reporting that the first study was done between 1985 and 1995 through the court system, he said the AJC looked at 223 tort jury verdicts and found 17 awards of punitive damages in 15 different cases during those ten years. MR. WIRSCHEM said the second study, done between September 1997 and May 1999, was a little different: it didn't track court system data, but data reported to the AJC by attorneys. For a total database of 1,685 cases reported, he said punitive damages were asked for in only 108 cases, and only 5 settlements included amounts for punitive damages. MR. WIRSCHEM told members that the third study involved reports to the AJC between June 1, 1999, and December 1, 2000, a period of 18 months. In the entire database of 2,951 cases, including 83 trials, he said punitive damages were requested in 17 percent of the reported cases, but awarded in only 8 cases - less than 1 percent. One award was statutorily required; the others followed trial. CHAIR McGUIRE thanked Mr. Wirschem for providing the foregoing information requested by the committee. Number 0695 JIM WILSON, Coastal Helicopters, testified in support of [HB 214]. Noting that in his business, pilots can be gone multiple weeks at a time without direct supervision, Mr. Wilson said [the company] goes through extensive training programs to make sure pilots know what they're supposed to be doing and how they're supposed to be doing it. He provided an example of an accident 10 or 11 years ago, as follows: This particular pilot was out on the job. And we have a mirror that we use to look at external loads when they're carrying it. Well, this pilot had moved the mirror up so he could see his landing gear. And in training we teach them to look out the aircraft when they're landing in small locations or areas where they may not be stable, so that they can detect any movement of the aircraft. Well, this particular pilot landed on one of those spots, took his eyes from the outside, ... looked at the mirror [inside], and while he was doing that, the aircraft slid forward and he hit a tree. And, fortunately for us, no one was injured. But ... it was a clear case that the pilot was not ... following established procedures, and we could have been victim to the punitive damages ... had there been injuries or death. Number 0835 REPRESENTATIVE GRUENBERG observed that Mr. Brown and Mr. Schneider had provided both Section 217(c) of the Restatement (Second) of Agency and Section 909 of the Restatement (Second) of Torts. He asked whether those two sections are identical. MR. BROWN noted that Section 909 of the Restatement (Second) of Torts says it is duplicated by Section 217(c), and that he therefore assumes it is true. He suggested the Laidlaw case lays out the criteria under Section 217(c), but said he hadn't compared the language to see whether it is identical. REPRESENTATIVE GRUENBERG said it appeared Mr. Brown and Mr. Schneider also included the commentary to Section 909 and case citations to that. He asked whether there are additional citations and commentary to Section 217(c) and, if so, whether they are the same. MR. BROWN indicated he hadn't looked at the commentary because he'd relied upon his own experience that if Section 909 says that Section 217(c) looks to the Restatement [(Second)] of Torts for comment and illustrations, he'd felt he could assume they would be nearly identical or identical. He added that another 60 pages of cases go along with this. He offered to fax those. REPRESENTATIVE GRUENBERG said that wasn't necessary. He then asked whether Mr. Brown prefers the Restatement language to the language of the current bill. MR. BROWN responded, "Absolutely." Number 0975 MARCIA R. DAVIS, Vice President and General Counsel, Era Aviation, Inc. ("ERA"), informed members that she had a copy of Section 909 of the Restatement (Second) of Torts and Section 217(c) of the Restatement (Second) of Agency. She said the only difference in the listing of the four exemptions in those two sections is that the Restatement (Second) of Torts references "the principal or a managerial agent" in all four clauses [except for subsection (c)]. By contrast, the Restatement (Second) of Agency only says "the principal" in each of those, except for subsection (d), which talks about the agent. She observed that the comments are lengthier in the [Restatement (Second) of] Torts. Number 1101 REPRESENTATIVE GRUENBERG said it seems the language from the Restatement (Second) of Torts would be preferable to that from the Restatement (Second) of Agency. MS. DAVIS responded, "In terms of what is preferable or not preferable, what we're trying to do is ... put this in the context of an employer ... as a principal, and then, if you want to expand the scope: employer, and then describe how far down the chain you go." She said that seems to be the debate. Number 1080 REPRESENTATIVE GARA referred to the proposed amendment from page 3 of the letter from Mr. Brown and Mr. Schneider discussed previously, which suggested the legislation should be amended to adopt Section 909 except to change subsection (b) to read as follows: The agent was unfit and the principal or a managerial agent was negligent [reckless] in employing, supervising or retaining [employing, retaining] him, or ... REPRESENTATIVE GARA said each amendment he'd handed out addresses a different part of that sentence. He asked Mr. Brown or Mr. Schneider to explain what kinds of cases might not be covered under the original bill, what kind of conduct would be drawn in [if it were amended], and what problem the bill tries to prevent. Addressing a recommendation in the letter [proposed by his own Amendment 1 to change "recklessly" to "negligently" on page 2, line 2], he said: Under the current bill, in order for ... an employer or a corporation to be held liable for punitive damages, first ... the employee will have had to have been reckless. But then, under this bill, we'll have to show that the employer was reckless in hiring the reckless employee. You change that to "the employer only has to be negligent in hiring or retaining that employee". Why, ... in your view, does that make things better? Number 1157 MICHAEL J. SCHNEIDER, Attorney at Law, Law Offices of Michael J. Schneider, PC, replied: The sponsor statement says that the intent of the bill is to ... take an employer who's behaving appropriately, who's done nothing wrong, who is truly innocent of any wrongdoing, and insulate them from vicarious punitive-damage liability. And, indeed, in Ms. Davis's comments a couple of days ago, she gave an example where the employer really did nothing wrong - did everything right - and ... expressed some consternation at the injustice of suffering punitive- damage exposure under those circumstances. The language that we suggest tracks that idea. If you are truly innocent, you're not going to get stuck with punitive-damage exposure. On the other hand, ... if the employer is negligent - has acted unreasonably in hiring, [retaining], supervising the employee - they're not innocent. They're a big part of the problem. And under those circumstances, it would seem to me, good public policy would dictate that they enjoy punitive-damage exposure, albeit vicarious exposure. ... It lowers the bar ... in terms of how bad their conduct has to be: recklessness ... is a further or farther deviation from the "reasonableness" standard than negligence is. And under the language we would suggest, if they are negligent, they can be vicariously on the hook for punitive damages. Number 1248 REPRESENTATIVE GARA inquired about the need for his amendment [never formally offered, but mentioned previously as one of the three written amendments] that would change "and" to "or" on page 2, line 1. MR. BROWN or MR. SCHNEIDER clarified that the suggestion [in the letter, page 3] was "agent was unfit and". He added, "If the agent was unfit and ... there is some wrongdoing on the part of the employer, we think the employer ought to be stuck vicariously." REPRESENTATIVE GARA indicated that that particular amendment was the result of a misunderstanding, then. CHAIR McGUIRE requested that testifiers on teleconference identify themselves when speaking. Number 1369 MR. BROWN, on another subject, told members: I'm not trying to speak disparagingly about any religious group at all. I will confess that I am Catholic, so I'm not trying to condemn the Catholic Church. But the way this is presented and has been submitted ... in the proposed House bill, I doubt very seriously if, under those circumstances, ... any of the victims of sexual abuse could bring any claims against the archdiocese in any of the major metropolitan areas where these claims have been raised by victims of sexual abuse. I think it would be that difficult. ... That's why we [have] proposed the language of "negligence". ... I don't think they've centered on the Catholic Church by any means, but I think that's why the language is such as it is in Section 909, to ... expand the base of persons liable and responsible. Number 1419 MS. DAVIS conveyed concern that [Amendment 1, which would change "recklessly" to "negligently"] turns on its head the whole concept that punitive damages are awarded when there has been outrageous or reckless conduct. She said: Granted, we're talking about the underlying reckless employee, and then you step up to an employer; yet the Restatement in both sections uses the word "reckless", and ... I would pause long and hard before I'd change that standard or lower it down, because we essentially are converting the employer's liability here from a punitive standard to more of a compensatory standard. And I would probably take issue that individuals harmed [by someone from the] Catholic Church would ... (indisc.) the compensation under the compensatory side for pain and suffering, emotional trauma, et cetera, and then the issue for [punitive damages] can and should be based on a "reckless" standard. Number 1475 REPRESENTATIVE GARA offered his understanding that although changing ["recklessly" to "negligently"] lowers the level of care required before an employer is held liable, the bill raises the bar by saying that employers who automatically would have been liable now would be liable only if negligent or reckless. Number 1523 REPRESENTATIVE SAMUELS, sponsor of HB 214, said the "reckless" standard already is in both Section 909 and Section [217(c)] of the respective restatements, and that he considers this a clarification of what the courts already have come out with. REPRESENTATIVE GARA replied that it isn't the law followed in Alaska or lots of other states. He cautioned that adopting this bill will radically change Alaska's law. Number 1530 REPRESENTATIVE OGG asked whether using the word ["negligently"] here would raise the present standard in law for the employer's duty. MS. DAVIS said the employer already has a duty to act reasonably in hiring and retaining employees. She explained: The problem that we're dealing with here is, this is a bill that's a bit attenuated. This is a bill that deals with the employer's vicarious liability for the wrongs of an employee, apart from its own duty and its own obligation. So I have a little bit of a hard time grasping the concept of duty that's been overlaid over vicarious liability. Duty is usually a direct liability, not a vicarious liability. So I get confused with the use of "duty" here. But if we look in terms of ... threshold of liability, currently under the Alaska Supreme Court's rule, ... they basically have a scope-of-employment rule that just says, "Whatever that reckless employee is doing, as long as they're engaged in the pursuit of that employer's business, the employer is liable, period - ... end of discussion, end of inquiry. We don't care whether the employer was a bad guy [or a] good guy - doesn't matter." So what we're doing here with this rule of law is, we're trying to ... take away the strict liability and say, "No, for punitive damages you will only be liable for that employee's punitive damages if these sets of conditions are met." So, by virtue of the bill, we are ... raising the bar for an employer's exposure to punitive damages that have been imposed on the employee. We are not changing in any way the employer's duties and direct obligations with respect to its own compensatory and its own punitive damages. Number 1638 MS. DAVIS, in reply to further questions from Representative Ogg, explained: There's a step from innocent to negligent to gross negligent to what we call reckless and outrageous, all the way to intentional. ... We're moving to not intentional, but reckless. And ... we picked that because that is what is already contained in the complicity rule that's adopted by other jurisdictions that have adopted the restatements. CHAIR McGUIRE suggested that summarized the entire bill and the amendment. Number 1682 REPRESENTATIVE GRUENBERG asked Mr. Brown or Mr. Schneider to respond to Representative Ogg's question of whether this change to ["negligently"] would alter current Alaska law. AN UNIDENTIFIED SPEAKER responded that it would change Alaska law and make it more difficult to obtain punitive damages for vicarious liability. In reply to a further question from Representative Gruenberg, he said: This would move it to negligence for ... tortious conduct. Remember, ... to even get to the "vicarious" question, there still has to be outrageous conduct proven ... as to the conduct ... of the agent, even to get to this question, and then you have to jump over the next hurdle, under ... our proposed language, of showing that the employer was negligent in employing, supervising, or retaining. So it's a double hurdle. Number 1740 CHAIR McGUIRE, offering her understanding that there were no further testifiers, again closed public testimony. Number 1758 REPRESENTATIVE GARA moved to adopt Amendment 1 [text provided previously]. REPRESENTATIVE SAMUELS objected. REPRESENTATIVE GARA explained that Amendment 1 was offered in recognition of the sponsor's concern that there should be some culpability by an employer before being held liable for an employee's reckless conduct. Calling it a middle ground, he said it makes the law more protective of employers than it is today, but not as protective as without the amendment. He offered that it is good policy because it will never happen that someone shows that an employer was reckless in hiring somebody who then engaged in reckless conduct, since the standard for recklessness is incredibly high. He mentioned previous testimony about how rarely punitive damages are awarded. REPRESENTATIVE GARA referred to a handout on [cases relating to] negligence, noting that the first page says that to receive punitive damages, [a plaintiff] must show reckless indifference to the rights of others and a conscious action in deliberate disregard of those rights - a very high standard. He also indicated the law says that cases involving punitive damages require much more evidence of being right than required in a normal civil case: the standard is clear and convincing evidence, somewhere between the normal civil standard and the criminal standard. He said the protections already exist. Number 1836 REPRESENTATIVE GARA provided an example of a school bus company that pays employees the $12 an hour that its profit margin allows, recognizing that some employees will be very good, but others may not be the best in the world. The company hires somebody with a history that isn't terrible, but includes lack of diligence and perhaps laziness. If that driver decides not to bother to put the tire chains on when conditions are icy, Representative Gara suggested that is probably reckless conduct on the part of the driver, but said the question is whether to hold the employer liable. He remarked: Depending on the warning signs the employer had that this was a lazy person who might have a propensity not to take the proper precautions when he's charged with protecting the lives of a hundred children, maybe [the employer should be held liable or] maybe not. But if we said the employer had to be reckless in making the hiring decision in the first place, there's no way the school bus company would ever be held responsible for hiring somebody who put children in danger. If the purpose is to make sure that there's some culpability on the part of an employer, I think we do that by saying the employer shall act without negligence in hiring and employing its workers. [That] addresses the specific concern made in the sponsor statement. It addresses the specific concern we discussed the other day - it's whether we're holding employers liable for things that they've done wrong or whether we're holding them liable for things where they've done nothing wrong. So that's the purpose of the one-word change. Number 1908 REPRESENTATIVE SAMUELS maintained his objection, saying the bill does nothing to change "the direct punitive damages that can be awarded to the company in direct liability." With regard to the statistics provided by [Mr. Wirschem] about awards of punitive damages, he said the point is that the hammer is always there, and it helps in the settlement with regard to the rest of the damages. He indicated that every small-business owner fears being put out of business by having to pay punitive damages. He said that if a company does its best and has good policies and procedures as well as drug testing, for example, and yet something happens when an employee makes his or her own decisions, the entire company is at risk. Expressing sympathy with Mr. Wilson, whose employees leave town for weeks on end, Representative Samuels asserted his belief that [the helicopter] industry is the most regulated on the planet. He added: I can guarantee one more thing: If you say "negligently", that becomes the argument and you lose the argument every time, and once again, here comes the hammer - you were negligent because you didn't specifically say [the helicopter pilot] couldn't draw the mirror up four inches; you said, "Don't use the mirror." Well, ... there comes the argument again. ... If you're doing the absolute best that you can as an employer, then you should have some rights, too. Number 1985 A roll call vote was taken. Representatives Ogg, Gara, and Gruenberg voted in favor of Amendment 1. Representatives Holm, Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 1 failed by a vote of 3-4. REPRESENTATIVE GARA brought attention to [Amendment 2, text provided previously]. Referring to prior discussion, he offered his belief that it makes the law say clearly what the sponsor intends, since it includes supervising or failing to fire [an employee] to the extent that an employer is liable for recklessly employing someone. Therefore, Amendment 2 makes the bill read that an employer is liable if the employer acted recklessly in employing, supervising, or retaining the employee. Number 2050 REPRESENTATIVE GARA moved to adopt Amendment 2. REPRESENTATIVE SAMUELS objected for the purpose of discussion. He told members, "We certainly mean the hiring and the continued employment; we don't mean if you hire somebody and then you know they're bad after you hire them that you should be let off the hook, because you shouldn't." The committee took an at-ease from 1:50 p.m. to 1:51 p.m. CHAIR McGUIRE relayed that it was decided [during the at-ease] to have a friendly amendment to Amendment 2 such that "or retaining" would be inserted after "employing" on page 2, line 2. Thus Amendment 2, as amended, no longer would contain the word "supervising". Number 2107 REPRESENTATIVE GARA explained: "We had a discussion over this amendment of the amendment. And I guess we feel that there are some circumstances where, then, bad supervising might be encompassed under this language. And the intent is just to leave it for the courts." He asked whether that is fair. REPRESENTATIVE SAMUELS pointed out that supervisors sometimes don't make company policy. Number 2139 REPRESENTATIVE HOLM remarked that supervision doesn't need to be included because a company wouldn't employ someone without the idea of supervising that person. He said the implication of supervision is inherent in employment. Number 2147 REPRESENTATIVE GRUENBERG disagreed that the term "supervision" is within the legal concept of hiring. He said that usually in the law, "employing" is the decision of whether to hire someone; it is very different from decisions after the person has been hired. That is why he thought [including "supervision"] was in line with the intent of the bill, he said, expressing hope that Representative Samuels would revisit his objection. CHAIR McGUIRE suggested that a decision to retain or not to retain a person speaks for itself. If an employee has been driving a tractor while drunk and the company decides not to fire the person, she offered her belief that the company has just allowed that risk to continue. REPRESENTATIVE GRUENBERG agreed, but suggested that a decision about retaining an employee is less inclusive than supervision, which could be just letting someone do the job without supervision. He emphasized the importance of including ["supervising"]. CHAIR McGUIRE pointed out that nowhere in [the relevant sections of the Restatement (Second) of Torts or the Restatement (Second) of Agency] is the word "supervised" contained. Number 2230 REPRESENTATIVE GARA suggested perhaps the amendment wasn't needed in the first place, and said: But we wanted to make sure it was clear to the courts. I think Representative Holm is right that the intention of the word "employing" means the whole gamut, from hiring to ... terminating. But we wanted to make sure that it did, and so we put employing and retaining. I feel very comfortable that the whole concept is covered by the amendment we've offered, but ... there was a definitional problem that Representative ... Samuels raised about using the word "supervisory", and I'm comfortable that we've addressed everybody's problems the way ... we've dealt with it here. Number 2257 REPRESENTATIVE GRUENBERG conveyed confidence that the members understand the use of the word "employing" here, and suggested there may be another way to do this. Although he said he would withdraw his objection [to removing "supervising"], Representative Gruenberg emphasized that the legislative history should be crystal clear "that we mean to include within the phrase 'employing or retaining' the concept of supervising too." REPRESENTATIVE SAMUELS announced that he was withdrawing his objection Amendment 2, as amended. Number 2310 CHAIR McGUIRE asked whether there was any objection to adopting Amendment 2, as amended. There being no objection, it was so ordered. REPRESENTATIVE GRUENBERG moved to adopt Amendment 3, a modification of Amendment 1, which had failed to be adopted. He specified that on page 2, line 2 [after "acted"], the amendment would delete "recklessly" and insert "grossly negligently". REPRESENTATIVE SAMUELS objected, citing the argument stated previously [for Amendment 1]. Number 2341 REPRESENTATIVE OGG, noting that he hadn't spoken to Amendment 1, referred to the conduct described by Representative Samuels and suggested that someone acting that way generally wouldn't be declared negligent by a court. He explained: If you acted in good faith and followed all the standards as you described them, a person would not be negligent. However, under the present law they would have been liable for strict liability under this "vicarious" concept. I'm a little uncomfortable jumping up four steps ... in passing a change like this. I see that the "negligent" doesn't go, but I'm happy to go with this one, the "gross negligent". That's jumping up two steps, and you're covered beyond that conduct that would have been safe under "negligent". TAPE 03-28, SIDE B Number 0001 REPRESENTATIVE GARA said he'd rather have ["negligently"] but supports the current amendment as an alternative. REPRESENTATIVE GRUENBERG indicated he was trying to reach some middle ground and craft a bill that the entire committee could support. A roll call vote was taken. Representatives Gara, Gruenberg, and Ogg voted in favor of Amendment 3. Representatives Holm, Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 3 failed by a vote of 3-4. Number 2302 REPRESENTATIVE GRUENBERG began discussion of Amendment 4. He said he understood the intent of the bill, which is to adopt the restatement language, and that he understood from people who oppose the bill that the restatement language itself would be preferable to the language of the bill. REPRESENTATIVE GRUENBERG [moved to adopt Amendment 4], in lieu of the bill, to adopt Section 909 of the Restatement (Second) of Torts. CHAIR McGUIRE declared the foregoing to be out of order. REPRESENTATIVE GRUENBERG requested an appeal of that ruling. The committee took an at-ease from 2:04 p.m. to 2:05 p.m. Number 2280 REPRESENTATIVE GRUENBERG [renewed his motion to adopt Amendment 4] to adopt Section 909 of the Restatement (Second) of Torts in lieu of the bill. REPRESENTATIVE SAMUELS objected. REPRESENTATIVE GRUENBERG explained, "The restatement has been thought through by the best legal minds. It has commentary. It has all kinds of cases construing it. We're buying a known quantity here. And if that's the intent of the bill, let's adopt the restatement." REPRESENTATIVE SAMUELS offered his understanding that the drafters of the bill, when including "the act or omission", were changing things to suit the Alaska Statutes. He indicated that that is why [the restatement] wasn't used as the bill. Number 2239 REPRESENTATIVE GRUENBERG said he'd consider it a friendly amendment if Representative Samuels wanted to say "an act or omission by an agent". He indicated the desire to "buy a known quantity" and do what has been adopted across the country. REPRESENTATIVE SAMUELS maintained his objection, suggesting he needed to do more research on it. He said, "To me, it says the same thing." He added that the key point of the entire legislation, as brought up by Representative Gara, is the negligence versus recklessness. REPRESENTATIVE GRUENBERG countered, "It says in (b), which is the section we were dealing with, the word is 'reckless'." REPRESENTATIVE SAMUELS said he understood, and added, "That's where we got it from." CHAIR McGUIRE explained that she'd ruled Representative Gruenberg's motion out of order previously because the amendment was to rewrite a bill. She requested a vote. REPRESENTATIVE SAMUELS expressed concern about unintended consequences. A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 4. Representatives Samuels, Anderson, Ogg, Holm, and McGuire voted against it. Therefore, Amendment 4 failed by a vote of 2-5. Number 2163 REPRESENTATIVE HOLM moved to report HB 214, as amended, out of committee with individual recommendations and the accompanying fiscal note(s). CHAIR McGUIRE asked whether there was any objection. REPRESENTATIVE GARA noted his objection, but suggested moving the bill to the House floor. CHAIR McGUIRE announced that there being no further objection, [CSHB 214(JUD)] was reported from the House Judiciary Standing Committee.
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