Legislature(1993 - 1994)
04/14/1993 01:45 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATOR TAYLOR returned SB 73 (LIABILITY OF DESIGN/ CONSTRUCTION PROFESSIONALS) introduced by SENATOR KELLY, to committee and directed the teleconference for the bill, beginning with the Anchorage location to hear COLIN MAYNARD. MR. MAYNARD, representing the Alaska Society of Professional Engineers, testified in favor of the bill citing protection from the present indefinite period of liability. He described the extent of the suits that could be pursued during this period of liability due to changes in design or neglect by the owner of the building in question. MR. MAYNARD discussed why liability should be discontinued at the end of ten years unless there was proof of negligence by the design professionals. He concluded his testimony by explaining why he thought the Statute of Repose was fair to all parties involved in the building profession. Next, SENATOR TAYLOR invited DOUG GREEN to testify from Anchorage. Number 057 MR. GREEN, representing the Alaska Professional Design Council and the American Institute of Architects, introduced himself as an architect in support of SB 73. He reviewed testimony from previous years on the Statute of Repose defending the record of the design professionals in protecting the public and utilizing the most current codes and standard of care. MR. GREEN explained that having the Statute of Repose would not lower their current standard of attention. He further explained the process involved in construction and the possible changes made to a project. He described how the Statute of Repose would be of benefit to the State of Alaska and would have no fiscal impact to the legislation. Number 155 RUSS WINNER, an attorney from the Anchorage firm of WINNER & ASSOCIATES, was invited to testify. MR. WINNER, representing the Alaska Academy of Trial Lawyers, testified in opposition to SB 73 for what he said were future victims of buildings that might collapse. He predicted the occurrence of calamities for these future victims, and he described such occurrences as being unfair under the Statute of Repose. MR. WINNER labeled it "special interest litigation" for the design professionals involved in construction projects and questioned the need for special treatment for architects and engineers. He suggested it could be compared it to giving lawyers the same protection, which he said would also be unfair to the victims. MR. WINNER explained SB 73 was almost identical to a statute that was previously struck down as unconstitutional by the Alaska Supreme Court. He reviewed the constitutional analysis by the supreme court as well as the policy considerations that were present both then and now. He predicted the Alaska Supreme Court would strike the present legislation as also unconstitutional. MR. WINNER said his view was shared by the attorney for the Division of Legal Services in a letter to REPRESENTATIVE BRIAN PORTER regarding SB 73. He reviewed the changes between the six-year Statute of Repose of the previously unconstitutional legislation to one of ten years in SB 73 which includes gross negligence as a causative factor. MR. WINNER reiterated his objections to the current legislation as being identical to the previous statutes which he believed would be adjudged unconstitutional by the Alaska Supreme Court. Number 239 MR. WINNER explained why he considered it inappropriate the legislature would consider a piece of legislation after receiving similar advice from attorneys. He reviewed the concerns noted by the Alaska Supreme Court Case in Turner Construction Co., Inc. v. Scales, 752 P.2d 467 (Alaska 1988) when it struck down the earlier bill. MR. WINNER quoted the court findings that the Statute of Repose violated the state constitution's equal protection clause. He said it deprives innocent victims of a substantial right to recovery in court. MR. WINNER quoted the Turner court as finding the purpose of the six-year Statute of Repose was to "encourage construction and avoid stale claims by shielding certain defendants from potential future liability." MR. WINNER said he assumed that was the same purpose for SB 73, and he explained the court's determination this did not serve this purpose very well because of the multiple involvement of participants in a construction project - besides design professionals. In addition, he explained how this affirmed the ruling of several superior court judges, who had considered the statute in earlier cases. Number 273 MR. WINNER continued to review the infirmities he saw in SB 73 such as the allocation of fault among parties to a piece of litigation after voters approved an initiative abolishing joint and several liability. He said the Statute of Repose would shift liability to owners, lessees, and persons selling materials, and he claimed for that reason, SB 73 "stinks." SENATOR TAYLOR explained the committee was nearly out of time on the teleconference network, and he asked MR. WINNER to comment on a couple of proposed amendments to SB 73. MR. WINNER had suggested in a letter to SENATOR TAYLOR in a letter, in which he explained to the committee might, or might not, enable SB 73 to pass the courts as statutes. He said it would make the legislation less onerous to innocent victims. MR. WINNER also described a judicial committee, headed by JUDGE KARL JOHNSTON, Presiding Judge for the Third District, designated to look at major changes in the court system. MR. WINNER suggested the outcome of the committee would be to dramatically shorten the discovery process and to "smoke out meritless lawsuits early in the process." He also proposed it would reduce the need for legislation such as SB 73. Number 323 SENATOR TAYLOR requested MR. WINNER to address page 2, line 24, *Sec. 2. ..., ACTIONS TO BE BROUGHT IN SIX YEARS, and asked why MR. WINNER did not propose amendments for that section. MR. WINNER thought the meat of the bill was in * Sec. 3, and SENATOR TAYLOR agreed with his explanation. SENATOR TAYLOR checked the teleconference network for others wishing to testify on SB 73. Hearing none, the teleconference ended. SENATOR LITTLE proposed splitting the recommendations from MR. WINNER into two amendments and moved Amendment #1. Page 3, line 19, after ";": Delete "or" Page 3, line 21, after "contract": Insert "; or (4) if the defect was not discovered or could not reasonably have been discovered by the person bringing an action for personal injury or propert ert the decedent in a wrongful death action, within the period of time set out under (a) of this section." SENATOR HALFORD objected to the amendment. SENATOR TAYLOR asked SENATOR LITTLE to explain the amendment. Number 377 SENATOR LITTLE explained the merits of the amendment and urged support. SENATOR TAYLOR defended the amendment, and it passed on a 3 - 1 vote. SENATOR LITTLE proposed Amendment #2 based on the letter from MR. WINNER as follows: Page 3, line 26, Insert a new subsection to Section 3: "(e) If any person or entity is found immune from suit under this section, the finder of fact in any section shall not consider that person's or entity's actions or failure to act for purposes of allocating fault and damages pursuant to AS 09.17.080." SENATOR HALFORD objected to the amendment. SENATOR TAYLOR again asked SENATOR LITTLE to explain the amendment. SENATOR LITTLE thought it would encourage support for the bill. SENATOR JACKO asked for SENATOR LITTLE'S understanding of the amendment. SENATOR LITTLE deferred to SENATOR TAYLOR who said it was less onerous to the sponsors than the first amendment which he thought might have some open ended aspects. He explained Amendment #2 answers the questions he had previously raised about protection for those involved in the design and construction of a building when the fault lies elsewhere in the construction of the building - such as a faulty hidden beam. SENATOR LITTLE said the amendment allowed the liability to be apportioned to those at fault. Number 425 SENATOR TAYLOR and SENATOR HALFORD did not agree, saying it would transfer the fault. SENATOR LITTLE thought that was a correct assessment. SENATOR TAYLOR described a circumstance under which the amendment would apply, and SENATOR HALFORD said it might be transferred to someone not at fault. There ensued a general discussion among the committee members as to fault in the construction. SENATOR LITTLE offered to withdraw the amendment, but SENATOR TAYLOR urged the amendment be offered to committee. Number 483 SENATOR TAYLOR offered Amendment #2 which carried. The discussion continued with SENATOR JACKO asking if it would apply to bridges. SENATOR TAYLOR said it would. SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 73(JUD) from committee with individual recommendations. SENATOR LITTLE objected, and it passed on a 3 - 1 vote.
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