Legislature(2001 - 2002)

03/29/2001 01:10 PM TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 68 - NO CIVIL LIAB FOR TAXI TRANSPORTING DRUNK                                                                             
[Contains  discussion   of  HB   67  and   other  alcohol-related                                                               
VICE  CHAIR MASEK  announced  that the  first  order of  business                                                               
would  be SPONSOR  SUBSTITUTE  FOR  HOUSE BILL  NO.  68, "An  Act                                                               
relating  to  civil  liability for  transporting  an  intoxicated                                                               
person or for driving an  intoxicated person's motor vehicle; and                                                               
providing for an effective date."                                                                                               
[The  sponsor  had before  him  a  proposed committee  substitute                                                               
(CS),  Version  F  [22-LS0300\F,  Ford,  3/26/01];  however,  the                                                               
committee  only  had  the sponsor  substitute  itself,  SSHB  68,                                                               
Version C [22-LS0300\C], until later in the meeting.]                                                                           
Number 0086                                                                                                                     
REPRESENTATIVE   NORMAN  ROKEBERG,   Alaska  State   Legislature,                                                               
sponsor,  explained that  SSHB 68  provides immunity  for taxicab                                                               
companies that provide  a ride home for an  intoxicated person or                                                               
drive  the intoxicated  person's vehicle  home.   Currently there                                                               
are programs  throughout the United States,  including in Alaska,                                                               
where   taxicab  companies   [provide   rides]   at  no   charge,                                                               
particularly  on nights  like New  Year's Eve,  when it  provides                                                               
"safety for the roads."                                                                                                         
REPRESENTATIVE ROKEBERG noted that  in many instances, people are                                                               
reluctant to take advantage of  these services because they would                                                               
have to  leave their vehicles  behind.  This bill  overcomes this                                                               
by allowing  taxicab companies to drive  the potential offender's                                                               
car home.   It  also grants taxicab  companies legal  immunity in                                                               
the  event  that  an  accident  occurs, except  in  the  case  of                                                               
recklessness, gross  negligence, or  intentional misconduct.   He                                                               
said  these are  legal  standards that  sufficiently protect  the                                                               
VICE CHAIR MASEK  pointed out that the bill  before the committee                                                               
was a  sponsor substitute, SSHB 68.   She asked what  the changes                                                               
from the original bill were.                                                                                                    
CHAIR ROKEBERG  remarked that  there was  a proposed  CS [Version                                                               
Number 0316                                                                                                                     
JANET  SEITZ, Staff  to  Representative  Norman Rokeberg,  Alaska                                                               
State  Legislature, explained  that SSHB  68 removes  language in                                                               
the original bill  regarding "licensed premises and  owner of the                                                               
licensed  premises   also  being  brought  in   under  the  civil                                                               
liability  section".   It  also  adds  language that  covers  the                                                               
driving of an intoxicated person's vehicle.                                                                                     
Number 0375                                                                                                                     
REPRESENTATIVE  OGAN noted  that he  liked this  bill, but  asked                                                               
whether   gross  negligence   was   chosen,   rather  than   just                                                               
negligence, because the former is a higher legal standard.                                                                      
REPRESENTATIVE  ROKEBERG  agreed  that   it  is  a  higher  legal                                                               
standard,  and  said  simple  negligence   is  a  relatively  low                                                               
standard, such  as when one  drives without due caution  or care.                                                               
Since taxicab companies  would be providing a  public service, it                                                               
warrants that  they be granted  a higher level of  immunity, even                                                               
if a  taxi driver  gets involved  in an  accident in  which there                                                               
normally might  be some  culpability.   In this  particular case,                                                               
the public welfare exceeds the right  of somebody to make a claim                                                               
unless there was gross negligence.                                                                                              
Number 0579                                                                                                                     
REPRESENTATIVE   SCALZI  asked   if   this   bill  is   necessary                                                               
considering the "Good Samaritan law" that exists.                                                                               
REPRESENTATIVE  ROKEBERG remarked  that  this bill  is really  an                                                               
"insurance bill."   It  bars a personal  cause of  action against                                                               
the  taxicab company  or driver  when engaged  in this  activity;                                                               
that legal immunity does  not exist now.  He went  on to say that                                                               
he did not think the "Good Samaritan law" would cover this.                                                                     
REPRESENTATIVE SCALZI  asked, if taxicab companies  charged a fee                                                               
for this service,  whether they would be covered  under this bill                                                               
without any added purchase of liability insurance.                                                                              
REPRESENTATIVE ROKEBERG  referred to subsection (a)  [Version F],                                                               
which says  the bill pertains  to an "intoxicated person  ... who                                                               
is not paying  for the transportation".  He remarked  that he has                                                               
concerns about this portion of the bill.                                                                                        
MS. SEITZ  said subsection (a) only  covers the person who  is in                                                               
the taxicab and  not paying a fee for that  ride.  Subsection (b)                                                               
makes no mention of whether  [the intoxicated person] is paying a                                                               
fee for  his or her  car to be driven  home.  She  said insurance                                                               
companies  she  has  spoken  with thought  that  not  having  the                                                               
intoxicated  person pay  a fee  for the  actual transport  of the                                                               
intoxicated person would be a better way to implement this bill.                                                                
Number 0684                                                                                                                     
REPRESENTATIVE  SCALZI asked  if the  person who  is driving  the                                                               
[intoxicated person's]  vehicle home  would be covered  under his                                                               
or  her own  [insurance] company  for the  vehicle or  any damage                                                               
that accrued, such as from running  into somebody on the way.  He                                                               
said  he assumes  the taxicab  company would  be responsible  for                                                               
this insurance coverage.                                                                                                        
MS.  SEITZ  commented that  this  is  covered in  subsection  (b)                                                               
[Version F],  which says, "The owner  of a motor vehicle  may not                                                               
bring a civil  action to recover for damage to  the motor vehicle                                                               
if the motor  vehicle damage occurred when the  motor vehicle was                                                               
being  driven".   She went  on to  say that  subsection (c)  bars                                                               
anyone  else from  suing the  taxicab  company for  damage.   The                                                               
theory is that  the vehicle owner should be  responsible and have                                                               
insurance  that would  cover the  vehicle, and  that the  taxicab                                                               
company or employee who drives should not be held liable.                                                                       
REPRESENTATIVE  SCALZI remarked  that there  is a  "gap" [in  the                                                               
bill].  He said it is  implied that the vehicle owner's insurance                                                               
would  cover  the responsibility  and  liability  for the  second                                                               
party  - the  taxicab company's  employee -  driving the  vehicle                                                               
home.  He indicated that even  if there were a no-fault accident,                                                               
somebody would have to have liability on the vehicle.                                                                           
MS. SEITZ  stated that the  owner would have  liability regarding                                                               
his or her vehicle.                                                                                                             
Number 0793                                                                                                                     
REPRESENTATIVE  ROKEBERG  referred   to  Representative  Scalzi's                                                               
question  regarding subsection  (a);  he said  the concern  about                                                               
compensation   of  payment   was  that   anytime  there   was  an                                                               
intoxicated person who  paid for a taxi ride,  the immunity would                                                               
"start to  flow."  He  clarified that this  is not what  is being                                                               
attempted in this bill; it is  only in conjunction with the other                                                               
vehicle  being driven,  so  it is  limited to  when  there is  no                                                               
payment for  transportation.  If  the [intoxicated]  person shows                                                               
good  sense  and   hires  a  cab  to  drive  him   or  her  home,                                                               
notwithstanding the vehicle,  there would be no  immunity in this                                                               
provision, since  presumably the  taxicab company would  have its                                                               
own  insurance.   He noted  that  HB 67  would require  mandatory                                                               
insurance levels for taxicab companies.                                                                                         
Number 0875                                                                                                                     
REPRESENTATIVE  WILSON  asked whether  a  driver  who was  not  a                                                               
taxicab employee would  be covered under the bill  for driving an                                                               
intoxicated person's vehicle home.                                                                                              
REPRESENTATIVE ROKEBERG  said he did  not believe so,  since this                                                               
bill is  specifically for [taxicab companies];  however, he noted                                                               
that it was  a point worth considering.  He  mentioned that while                                                               
researching  this issue,  it was  discovered  that Syracuse,  New                                                               
York, has a shuttle service for  intoxicated drivers.  Due to its                                                               
large size,  Syracuse was  able to  establish this  service, paid                                                               
for  by fees  from various  nightclubs and  other establishments.                                                               
[The  shuttle service]  has  these people  on  "retainers."   [An                                                               
establishment]  can call  the shuttle  service,  which takes  the                                                               
intoxicated driver and  the person's vehicle home,  using two cab                                                               
drivers.    Therefore,  this  could   be  a  private  enterprise.                                                               
However,    with   the    possible   exception    of   Anchorage,                                                               
Representative  Rokeberg said  he does  not think  Alaska is  big                                                               
enough to justify [a system like Syracuse's].                                                                                   
REPRESENTATIVE WILSON  asked if  the two  cab drivers  worked for                                                               
the same company.   She also asked, if [an  accident] happened to                                                               
the car  of the intoxicated person  or to the taxi,  whether this                                                               
bill would cover both.                                                                                                          
REPRESENTATIVE ROKEBERG said yes, the  two cab drivers would work                                                               
for the same company.  Also,  this bill would cover both vehicles                                                               
as long as  they didn't meet the higher  standards of intentional                                                               
recklessness or gross  negligence and were acting  in good faith.                                                               
He added that  there is a bar  for a cause of action  in court to                                                               
claim damages.                                                                                                                  
Number 1024                                                                                                                     
REPRESENTATIVE WILSON  asked what  would happen  if there  was "a                                                               
little bit of fault."                                                                                                           
REPRESENTATIVE  ROKEBERG explained  that presumably  the "client"                                                               
[intoxicated  person] would  have insurance,  which should  apply                                                               
because [the taxicab company] would  have permission to drive the                                                               
car.  He indicated the problem  is that 15 percent of the state's                                                               
population does not have [car]  insurance.  Therefore, the desire                                                               
is to ensure that taxicab  companies would not be responsible for                                                               
any damage that resulted from no fault of their own.                                                                            
REPRESENTATIVE ROKEBERG noted that  if an inebriated person needs                                                               
a ride home, the  [taxi] driver does not want to  check to see if                                                               
that person  has [car] insurance  before taking the  person home.                                                               
He  referred  to  discussion  in the  House  Labor  and  Commerce                                                               
Standing Committee about how to  prove whether one has insurance.                                                               
Even if a police officer  apprehends someone, he wondered if that                                                               
person could  show proof  of insurance.   For example,  one could                                                               
show an expired insurance card, or  a card in which the insurance                                                               
was  recently canceled.   He  then  explained that  the bill  was                                                               
written to  take into consideration  that there may  be insurance                                                               
coverage on the car being driven home.                                                                                          
Number 1129                                                                                                                     
REPRESENTATIVE OGAN  described a  possible accident in  which the                                                               
taxicab driver unintentionally runs a  red light while taking the                                                               
inebriated  driver  home.    He  said this  would  not  be  gross                                                               
negligence; it  is simply  in violation  of a  traffic ordinance.                                                               
However, it  might involve culpability  if a person were  hurt or                                                               
killed.    He  expressed  concern   about  the  gross  negligence                                                               
standard, and  asked whether changing  it to  [simple] negligence                                                               
would "gut" the bill.                                                                                                           
REPRESENTATIVE ROKEBERG said he thinks  it would.  However, it is                                                               
something that  can be taken  up in the House  Judiciary Standing                                                               
Committee, the next committee of referral.                                                                                      
Number 1308                                                                                                                     
An at-ease was  called at 1:32 p.m.  The  meeting was called back                                                               
to order  at 1:35 p.m.   [Version F was distributed  to committee                                                               
Number 1316                                                                                                                     
REPRESENTATIVE  OGAN made  a  motion to  adopt  the proposed  CS,                                                               
version  22-LS0300\F, Ford,  3/26/01,  as a  work  draft.   There                                                               
being no objection, Version F was before the committee.                                                                         
REPRESENTATIVE  ROKEBERG   pointed  out   that  Version   F  adds                                                               
subsection (c), the third-party cause of action provision.                                                                      
MS. SEITZ explained  that a third-party cause of  action is when,                                                               
for  example,  "another person  hits  the  taxicab driver,  maybe                                                               
driving  the  intoxicated  person's vehicle,  [and]  that  person                                                               
doesn't have  a cause of  action against the taxicab  employee or                                                               
company."  This person would  "have to go against the intoxicated                                                               
person's  or his  or her  insurance or  their uninsured  coverage                                                               
under their insurance policy."                                                                                                  
Number 1394                                                                                                                     
REPRESENTATIVE OGAN asked if it  was standard operating procedure                                                               
for  law enforcement  officers  to  call a  taxicab  to drive  an                                                               
intoxicated  person  home,  rather   than  to  impound  the  car.                                                               
REPRESENTATIVE  ROKEBERG  remarked  that he  thought  the  person                                                               
would  be  told to  find  another  way home.    He  said in  many                                                               
instances, bar  owners and  law enforcement  have an  interest in                                                               
this  [drunk driving].   He  surmised that  the majority  of this                                                               
would  come from  a bistro  owner, for  example, suggesting  to a                                                               
client that he  or she should not be driving  home.  He indicated                                                               
operators  are more  sensitive to  these  issues since  liability                                                               
insurance is  very expensive and  has not always  been available.                                                               
He went on to say:                                                                                                              
     I think  that the whole idea  is that this is  one more                                                                    
     alternative  to  keep  the  roads safe.    And  if  the                                                                    
     program's  in  place and  workable,  it  will be  taken                                                                    
     advantage of.  ... You can  put yourself in  a position                                                                    
     of the  person saying, "Joe,  ... you don't need  to be                                                                    
     driving home, you had too  much to drink, I can't serve                                                                    
     you  anymore."   And Joe  says, "Well,  Harry, I  don't                                                                    
     want to  go because  I'll leave  my car  here and   ...                                                                    
     this is  a tough neighborhood.   I don't want  to leave                                                                    
     my car here."  That's what it is all about.                                                                                
Number 1484                                                                                                                     
REPRESENTATIVE KOOKESH asked  whether Representative Rokeberg was                                                               
assuming that bar owners would pay for the taxicab rides.                                                                       
REPRESENTATIVE ROKEBERG confirmed this statement.                                                                               
REPRESENTATIVE  KOOKESH  indicated  that   he  sees  [this  bill]                                                               
resulting in taxicab drivers' not  being paid for transportation,                                                               
although they are in the business to make money.                                                                                
REPRESENTATIVE ROKEBERG responded that  under subsections (b) and                                                               
(c)  of Version  F, a  person can't  bring an  action.   The bill                                                               
doesn't restrict  the possibility  of compensation, however.   He                                                               
said bar owners could pay it.                                                                                                   
REPRESENTATIVE  OGAN remarked  that he  would support  moving the                                                               
bill out of  committee.  However, it appears to  enable drunks to                                                               
stay drunk by  taking care of them.  Nonetheless,  because of his                                                               
belief that the  bill will save the lives of  innocent people, he                                                               
said it overrides his "gut instinct" about its enabling aspect.                                                                 
REPRESENTATIVE ROKEBERG  indicated passage of the  .08 BAC [blood                                                               
alcohol concentration]  legislation would  help with  this issue.                                                               
He  explained that  the BAC  legislation  would be  a 20  percent                                                               
reduction  in the  standard  for those  under  the influence  [of                                                               
VICE CHAIR MASEK requested that  Representative Rokeberg keep the                                                               
discussion focused on HB 68.                                                                                                    
Number 1638                                                                                                                     
KACE  McDOWELL, Executive  Director, Cabaret  Hotel Restaurant  &                                                               
Retailers Association (CHARR),  testified via teleconference that                                                               
this  program began  with the  [Anchorage] Downtown  Partnership,                                                               
Downtown License  Beverage Association, CHARR, and  Checker Taxi,                                                               
although  other  taxi companies  have  joined  since then.    She                                                               
provided some history:                                                                                                          
     We ran  into a  real roadblock when  we were  trying to                                                                    
     put  this program  together  because  of the  insurance                                                                    
     laws on the taxicab.   Now, I know you've discussed the                                                                    
     fact that,  as we  know, the  insurance should  go with                                                                    
     the  car.     So  if  a  taxi  driver   is  driving  an                                                                    
     intoxicated person's car, it should be covered.                                                                            
     Our problem  is not only  worrying about the  fact that                                                                    
     maybe that  person wouldn't have any  insurance; it was                                                                    
     also the  fact that the insurance  companies might deny                                                                    
     the insurance,  saying the  intoxicated person  was not                                                                    
     in their right mind to  make a decision to have someone                                                                    
     drive their  car.   The program  was going  along great                                                                    
     until  we  ran  into   this,  and  the  taxi  companies                                                                    
     absolutely  could not  afford  the  insurance it  would                                                                    
     take  to cover  them  for driving  somebody else's  car                                                                    
     home.  So, that's where all this came to.                                                                                  
     And then  we came to Representative  Rokeberg and asked                                                                    
     him if there was some way  he could help us out kind of                                                                    
     on the line  of a Good Samaritan bill.   So that's kind                                                                    
     of where we are right now.   [This is] the only problem                                                                    
     we're having [with this program].   This will be funded                                                                    
     through the  industry and  other corporations  and also                                                                    
     through the bars and restaurants.                                                                                          
Number 1734                                                                                                                     
MS.  McDOWELL  informed  members  that this  program  began  with                                                               
downtown [Anchorage] and  then evolved to all  over the Anchorage                                                               
area.  She  said it's almost impossible for someone  to leave his                                                               
or her car in downtown Anchorage  and take a taxi home because of                                                               
the risk that the car will be  towed.  Therefore, there is a need                                                               
to  get the  car home.   Ms.  McDowell also  said she  understood                                                               
Representative  Ogan's  concerns  about  enabling;  however,  she                                                               
thinks this  program is  a better way  of keeping  an intoxicated                                                               
person  - especially  one who  is  a little  drunk and  therefore                                                               
might be tempted to drive - off the road.                                                                                       
MS. McDOWELL noted  that this program comes with a  $40 charge to                                                               
the bar, restaurant,  and other contributors.   In addition, bars                                                               
and  restaurants  pay  $20  each   time  this  program  is  used.                                                               
However, this program is not going  to be "just shoveling out $20                                                               
every time  to enable people to  stay in there and  drink another                                                               
two or three drinks."  It will  be monitored well.  There will be                                                               
training for taxicab  company drivers and employees,  and for bar                                                               
and   restaurant   employees   including   bartenders,   waiters,                                                               
waitresses, and owners.                                                                                                         
Number 1796                                                                                                                     
VICE  CHAIR MASEK  asked how  many  people have  been using  this                                                               
MS.  MCDOWELL  replied that  due  to  insurance reasons,  taxicab                                                               
companies couldn't go through with  this program [of bringing the                                                               
intoxicated  person's  car  home  along with  the  driver].    In                                                               
response to a  further question, Ms. McDowell  clarified that the                                                               
intoxicated person  traveling in the  cab is not expected  to pay                                                               
for this program.   It will be paid for  through the industry and                                                               
contributions from other corporations.                                                                                          
MS.  McDOWELL mentioned  the possibility  of someone's  coming in                                                               
and  taking it  over  as a  for-profit program  like  the one  in                                                               
[Syracuse] New  York.  She  also referred to a  nonprofit program                                                               
in  Colorado  in which  the  cars  are  not  brought home.    She                                                               
remarked that  she knows of  places outside of Anchorage  that do                                                               
this now (taxis taking the person  and car home); usually the car                                                               
arrives  later  than  the person;  however,  concerns  have  been                                                               
expressed about insurance issues in doing these programs.                                                                       
VICE  CHAIR MASEK  stated that  in Anchorage  during the  holiday                                                               
season  there has  been a  free towing  service to  take people's                                                               
vehicles home.                                                                                                                  
MS. McDOWELL commented  that the person who  initiated the towing                                                               
program wanted  to help with  her program until  insurance issues                                                               
were resolved;  however, she  has been unable  to talk  with that                                                               
person.   She  said [towing]  is relatively  inexpensive, but  it                                                               
would not deter  many people [from drinking  and driving] because                                                               
few people want their cars taken  home by a tow truck with lights                                                               
Number 1913                                                                                                                     
REPRESENTATIVE  WILSON   asked  how  many  people   Ms.  McDowell                                                               
anticipates would participate weekly in this program.                                                                           
MS. McDOWELL said about 70 people in the Anchorage area a month.                                                                
Number 1993                                                                                                                     
ROD  PFLEIGER,  Anchorage  Downtown  Partnership,  testified  via                                                               
teleconference, noting  that he had  just received the bill.   He                                                               
thanked Representative  Rokeberg for continuing with  this issue.                                                               
He said  it is truly  a community  issue that the  Anchorage area                                                               
wants to  solve in a positive  manner, and he believes  this bill                                                               
goes in  the right  direction.   A lot  of acts  that seem  to be                                                               
committed under  the influence are  unintentional, he noted.   He                                                               
emphasized that the  program, which is called "Off  the Road," is                                                               
a community collaborative effort, as Ms. McDowell had stated.                                                                   
MR. PFLEIGER pointed  out that an individual could  choose to pay                                                               
[the taxicab driver]  or to give a gratuity,  and money therefore                                                               
would  change  hands.   On  a  different  topic, he  asked  about                                                               
someone in a  chauffer position doing the driving,  rather than a                                                               
taxicab driver,  and whether  there would  be flexibility  if the                                                               
program grew.  He urged passage of the bill.                                                                                    
Number 2123                                                                                                                     
REPRESENTATIVE ROKEBERG remarked  that he was very  pleased to be                                                               
able  to  assist the  Anchorage  Downtown  Partnership, which  is                                                               
trying to  promote the  economic development  and quality  of the                                                               
atmosphere  and   services  in  downtown  Anchorage.     He  also                                                               
expressed appreciation for  the interest shown by  CHARR and ARBA                                                               
[Anchorage Restaurant and Beverage Association] on this issue.                                                                  
VICE CHAIR MASEK  asked what the Department of  Law's position on                                                               
the bill was.                                                                                                                   
REPRESENTATIVE  ROKEBERG  replied  that   to  his  knowledge,  no                                                               
opinion had  been received from  the administration,  although he                                                               
expected  to hear  one in  the  next committee  of referral,  the                                                               
House Judiciary Standing Committee.                                                                                             
REPRESENTATIVE  WILSON  pointed  out  that this  bill  might  not                                                               
include  a  fiscal  note  for  the state,  but  that  it  entails                                                               
businesses' spending  about $33,000 a  year to be involved.   She                                                               
said,  "They're trying  to fix  a  problem that's  out there  and                                                               
prevent  needless   possible  loss   of  life,  even   under  the                                                               
VICE CHAIR  MASEK said  it is  encouraging to  see the  public is                                                               
trying to help with problems that  "we" are facing in 2001 and in                                                               
the future.                                                                                                                     
REPRESENTATIVE  ROKEBERG  remarked  that  this  bill  would  save                                                               
lives,  and would  save  money  from property  damage.   He  said                                                               
usually he  is very concerned  about placing fiscal notes  on the                                                               
private sector.  However, in  this situation, they are asking for                                                               
it,  and are  happy  to  contribute to  this  "whole issue  about                                                               
removing drunk drivers from the street."                                                                                        
VICE CHAIR MASEK closed public testimony.                                                                                       
Number 2256                                                                                                                     
REPRESENTATIVE WILSON made  a motion to move the CS  for SSHB 68,                                                               
version   22-LS0300\F,  Ford,   3/26/01,   from  committee   with                                                               
individual  recommendations and  the attached  zero fiscal  note.                                                               
There being  no objection,  CSSSHB 68(TRA)  moved from  the House                                                               
Transportation Standing Committee.                                                                                            

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