Legislature(2003 - 2004)

05/08/2003 08:05 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 214-PUNITIVE DAMAGES AGAINST EMPLOYERS                                                                        
                                                                                                                                
CHAIR SEEKINS announced HB 214 to be up for consideration.                                                                      
                                                                                                                                
REPRESENTATIVE SAMUELS,  sponsor of HB 214,  explained that there                                                               
had  been  discussions  of  the  definitions  of  management  and                                                               
management  agent  in  a  previous  meeting  and  that  had  been                                                               
incorporated into a committee substitute.                                                                                       
                                                                                                                                
SENATOR THERRIAULT  motioned to adopt SCS  CSHB 214(JUD), version                                                               
\Q. There was no objection and it was so ordered.                                                                               
                                                                                                                                
REPRESENTATIVE  SAMUELS said  the  substance of  the bill  didn't                                                               
change, but the definitions were put  in. He said the language in                                                               
the bill is from restatements  of the national standard, but it's                                                               
even closer with  this version.  The definitions out  of the VECO                                                               
v.  Rosemont   case  concerned  sexual  harassment   outside  the                                                               
workplace.                                                                                                                      
                                                                                                                                
SENATOR FRENCH said the Alaska  State Supreme Court reversed that                                                               
saying  that you  couldn't give  punitive damages  for harassment                                                               
outside the workplace.                                                                                                          
                                                                                                                                
REPRESENTATIVE  SAMUELS  replied  that  in  this  bill  "punitive                                                               
damages may not be awarded unless  the employee was employed in a                                                               
managerial  capacity   and  was   acting  within  the   scope  of                                                               
employment", which should include Senator French's concerns.                                                                    
                                                                                                                                
MS.  SARA  NIELSON, Staff  to  Representative  Samuels, said  she                                                               
talked  with the  drafter who  said it  was better  to leave  the                                                               
definition broad, which would leave it up to the court.                                                                         
                                                                                                                                
SENATOR FRENCH said  he was more concerned with  language on line                                                               
14 that says,  "...was employed in a managerial  capacity and was                                                               
acting within the  scope of employment." He  thought the previous                                                               
clause had to do with a renegade employee.                                                                                      
                                                                                                                                
CHAIR  SEEKINS responded  that if  they are  acting within  their                                                               
scope  of employment  their employer  can be  vicariously liable,                                                               
but any  foreman acting outside  the scope of his  employment and                                                               
authority   should  not   subject  his   employer  to   vicarious                                                               
liability.                                                                                                                      
                                                                                                                                
SENATOR FRENCH said he thought  the committee should keep in mind                                                               
"that if we  think we're adopting one rule when  in fact the rule                                                               
has consistently been interpreted the  other way, we'd be wasting                                                               
our time."                                                                                                                      
                                                                                                                                
In the  Laidlaw case where  the bus driver was  smoking marijuana                                                               
while  she was  on the  job, you  would believe  intuitively that                                                               
that was completely  outside the scope of her  employment. No one                                                               
would believe that smoking marijuana  would be part of a person's                                                               
job.                                                                                                                            
                                                                                                                                
     Yet,  in the  Laidlaw case,  the court  said, and  I'll                                                                    
     quote  it,  'Moreover,  the fact  that  Laidlaw  policy                                                                    
     explicitly   prohibits  smoking   marijuana  does   not                                                                    
     insulate  the company  from liability.  A wrongful  act                                                                    
     committed   by  an   employee  while   acting  in   his                                                                    
     employer's business  does not take the  employee out of                                                                    
     the  scope  of  employment  even if  the  employer  has                                                                    
     expressly forbidden the act.'                                                                                              
                                                                                                                                
     That is partly  why we are being very  careful to limit                                                                    
     the liability  in this bill  to someone other  than the                                                                    
     lowest  level  employee -  I  believe  because of  that                                                                    
     result. And  so, what we're doing,  we're exempting the                                                                    
     burger flipper,  we're exempting the bus  driver, we're                                                                    
     exempting the people from the  very lowest rungs of the                                                                    
     business from making the employer liable.                                                                                  
                                                                                                                                
     So, for  that reason,  within the scope  of employment,                                                                    
     is part of  the battle, but managerial  capacity is the                                                                    
     other  part. No  one  in their  wildest imagination  is                                                                    
     going  to  say that  the  bus  driver is  a  managerial                                                                    
     employee,  because he  or  she  doesn't direct  policy,                                                                    
     doesn't  make the  call, doesn't  direct a  crew, isn't                                                                    
     fulfilling or  shaping how  the company  does business.                                                                    
     For that  reason I'm concerned  about where we  set the                                                                    
     line in this managerial capacity definition.                                                                               
                                                                                                                                
CHAIR  SEEKINS said  that the  bus  driver wasn't  even legal  to                                                               
drive at  the time and  although he  didn't want to  reargue that                                                               
case,  he  thought  it  was  fair to  say  that  in  the  future,                                                               
employers  should be  held responsible  for  decisions that  were                                                               
made within the scope of authority, not of employment.                                                                          
                                                                                                                                
REPRESENTATIVE  SAMUELS said  that  they have  to  draw the  line                                                               
somewhere  and  if  they  draw  it  too  low,  the  bill  becomes                                                               
worthless  and  that  puts  the entire  company  at  risk  again.                                                               
"That's just not fair, first of all."                                                                                           
                                                                                                                                
SENATOR FRENCH  said he still  had a problem with  the definition                                                               
of managerial  agent and wanted  to know  where in the  VECO case                                                               
this  definition came  from,  because page  10  of the  decision,                                                               
footnote 12, says:                                                                                                              
                                                                                                                                
     A  management level  employee has  been defined  as one                                                                    
     who  has the  'stature and  authority of  the agent  to                                                                    
     exercise control,  discretion and  independent judgment                                                                    
     for a certain  area of business with some  power to set                                                                    
     policy for the company.'                                                                                                   
                                                                                                                                
MS.  NIELSON  said that  language  could  be used.  "It  wouldn't                                                               
change it that much."                                                                                                           
                                                                                                                                
CHAIR  SEEKINS   said  that  "agent"  has   a  totally  different                                                               
definition than  "employee." An agent would  indicate someone who                                                               
is not  a regular  employee, but is  under contract  or something                                                               
like that.                                                                                                                      
                                                                                                                                
MS. MARSHA DAVIS,  General Council, ERA Aviation,  said the agent                                                               
is a  very broad  concept in  law. Using the  term here  does not                                                               
restrict  it from  applying to  employees. She  said they  didn't                                                               
want the  perception that  they were trying  to deviate  from the                                                               
restatement in  terms of  how the clause  would be  applied. This                                                               
version  uses the  structure of  section 909  of the  restatement                                                               
almost verbatim. The only difference  is they inserted "employer"                                                               
for  "principal"  -  the only  substantive  difference  with  the                                                               
attempt to  define the concept  of what  is a manager  agent. She                                                               
also noted where  the restatement sets out  the general principal                                                               
of law, there  is a section called "comments"  that adds examples                                                               
for clarification.                                                                                                              
                                                                                                                                
She said the  fourth category is the one that  hangs the employer                                                               
out the most. It says if  the employee who did the wrongdoing was                                                               
at a  high enough level, they  are liable no matter  how innocent                                                               
the employer  may be. For that  reason in the comment  section it                                                               
says  it's  to  deter  an   employer  from  hiring  [questionable                                                               
characters] for  important positions. You assume  the employer is                                                               
acting  within the  scope  and that  the  employer is  vicarious.                                                               
"That is a strict liability for the employers."                                                                                 
                                                                                                                                
But, when you step back to the  next level, do they want to allow                                                               
the punitive  damages to  be hooked to  the employer?  The Alaska                                                               
Supreme  Court has  said no  and  it would  only impose  punitive                                                               
damages on  the employer if  they met  one of the  four criteria.                                                               
The  restatement   sets  the  standard  quite   high  for  strict                                                               
liability for punitive damages.                                                                                                 
                                                                                                                                
SENATOR  FRENCH asked  if she  thought the  VECO definition  of a                                                               
management level employee was adequate.                                                                                         
                                                                                                                                
MS.  DAVIS replied  it didn't  give her  too much  heartburn. The                                                               
independent judgment is the critical piece in the definition.                                                                   
                                                                                                                                
CHAIR  SEEKINS  asked  her,  as an  attorney  who  represents  an                                                               
employer, if she was comfortable with the CS.                                                                                   
                                                                                                                                
MS. DAVIS replied that she was extremely comfortable.                                                                           
                                                                                                                                
SENATOR  FRENCH  said  he  would  be  interested  in  drafting  a                                                               
definition of  managerial agent and management  level employee to                                                               
comport  with what  they just  discussed coming  out of  the VECO                                                               
decision.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS  noted that Senator  Ogan had some concerns  and he                                                               
would hold the bill for him to comment.                                                                                         
                                                                                                                                
REPRESENTATIVE  SAMUELS suggested  after  "employee"  on page  2,                                                               
line 1,  inserting the definition  that is in VECO  and eliminate                                                               
the rest of the sentence. It would read:                                                                                        
                                                                                                                                
     ...means a  management level employee with  the stature                                                                    
     and  authority  of  the   agent  to  exercise  control,                                                                    
     discretion  and  independent  judgment over  a  certain                                                                    
     area of the  business with some power to  set policy of                                                                    
     the company.                                                                                                               
                                                                                                                                
He said that language comes straight out of the footnote.                                                                       
                                                                                                                                
SENATOR FRENCH and Ms. Davis agreed with that.                                                                                  
                                                                                                                                
CHAIR  SEEKINS  said  they  would hold  that  in  abeyance  until                                                               
Senator Ogan could ask his questions.                                                                                           
           HB 214-PUNITIVE DAMAGES AGAINST EMPLOYERS                                                                        
                                                                                                                                
CHAIR  SEEKINS  announced  that  HB   214  was  back  before  the                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR OGAN said  he was concerned with  the vicarious liability                                                               
issue  and that  past  tort reform  limited  liability so  juries                                                               
couldn't award ridiculously high amounts in punitive damages.                                                                   
                                                                                                                                
TAPE 03-41, SIDE B                                                                                                            
                                                                                                                                
SENATOR  OGAN asked  for  the  liability to  the  employer to  be                                                               
explained  using  an  experience  he had  this  morning  where  a                                                               
restaurant employee wasn't dressed  appropriately and it raised a                                                               
question in  his mind  about whether or  not the  employee washed                                                               
his hands.                                                                                                                      
                                                                                                                                
MS. DAVIS responded that under this bill:                                                                                       
                                                                                                                                
     ...the  employer is  strictly  liable  for the  medical                                                                    
     bills for all  damages that flow from  a patron because                                                                    
     he's sick. This  does not change any  of the underlying                                                                    
     [indisc.]  of  damages.   Essentially,  the  public  is                                                                    
     protected  from  harm  and the  employer  is  the  deep                                                                    
     pocket no matter what those  employees do - unless that                                                                    
     employee were  outside the scope  of employment  - that                                                                    
     is not in a restaurant....                                                                                                 
                                                                                                                                
CHAIR SEEKINS said that in  effect this isolates the company from                                                               
having to  pay the punitive  damages for the  outrageous behavior                                                               
that  was not  authorized  by  the company  of  the employee  who                                                               
performed the outrageous behavior.                                                                                              
                                                                                                                                
MS. DAVIS added you would never  see punitive damages come out of                                                               
the type of situation Senator  Ogan described, but, if the person                                                               
was  sick with  typhoid  and  had intent  to  spread  it, if  the                                                               
employer saw  the employee  not washing his  hands and  didn't do                                                               
anything about  it, he  would be liable  for punitive  damages as                                                               
well.                                                                                                                           
                                                                                                                                
SENATOR OGAN wanted to know the definition for managerial agent.                                                                
                                                                                                                                
MS.  DAVIS replied  it  matches the  restatement  section 909  of                                                               
tort. They  are trying  to capture someone  who sets  policy. She                                                               
explained the use of comments in the law.                                                                                       
                                                                                                                                
MR.  MIKE FORD,  Attorney, Division  of Legal  Services, said  he                                                               
thought  the important  thing was  to be  clear on  how precisely                                                               
they want to  define this and using the VECO  definition would be                                                               
fine.                                                                                                                           
                                                                                                                                
SENATOR OGAN  referred to  an incident  where a  helicopter pilot                                                               
employee  didn't follow  company training  policy and  got in  an                                                               
accident to  ask whether the  company would be held  harmless for                                                               
anything other than the strict liability under this bill.                                                                       
                                                                                                                                
MR.  FORD  replied that  he  wasn't  sure  that it  would  change                                                               
anything, because they are trying  to draw a line between someone                                                               
who has the  actual authority to create or  modify the employer's                                                               
policies and he didn't think the pilot did have that authority.                                                                 
                                                                                                                                
CHAIR SEEKINS said the pilot  didn't have the authority to change                                                               
company policy and they are  strictly liable for the actions, but                                                               
they would not have to pay punitive damages against the pilot.                                                                  
                                                                                                                                
MR. FORD added that's assuming the pilot is just the pilot.                                                                     
                                                                                                                                
CHAIR SEEKINS said he likes  to make the employee responsible for                                                               
his own bad behavior.                                                                                                           
                                                                                                                                
SENATOR OGAN  said he  struggles with  that, because  it relieves                                                               
some of the employer's responsibility to monitor what goes on.                                                                  
                                                                                                                                
CHAIR SEEKINS interrupted  to say that they  are strictly liable,                                                               
but not for the punitive damages.                                                                                               
                                                                                                                                
SENATOR  OGAN replied  they have  insurance for  strict liability                                                               
and they don't always have insurance for punitive damages.                                                                      
                                                                                                                                
CHAIR SEEKINS said you couldn't insure against punitive damages.                                                                
                                                                                                                                
SENATOR THERRIAULT  asked Mr. Ford  whether an employer  could be                                                               
responsible for punitive damages if  they had a set of procedures                                                               
but training was inadequate.                                                                                                    
                                                                                                                                
MR. FORD replied  that the question would be  whether this person                                                               
has  the  power  to  set  policy.  If not,  he  would  not  be  a                                                               
managerial agent.                                                                                                               
                                                                                                                                
SENATOR OGAN asked  if, under this bill, the only  way they could                                                               
be sued for punitive damages is if their policies are not right.                                                                
                                                                                                                                
MR.  FORD  replied  no,  the   question  would  be  who  did  the                                                               
wrongdoing and  what kind of  employee were they. Did  they carry                                                               
out  policy  or did  they  set  policy?  Every  case rests  on  a                                                               
specific set  of facts  and trying  to come up  with a  rule that                                                               
addresses all the  cases is hard to understand.  This reduces the                                                               
facts to answer that.                                                                                                           
                                                                                                                                
CHAIR SEEKINS asked  if they were plowing new ground  here as far                                                               
as restatement of torts and other state laws.                                                                                   
                                                                                                                                
MR. FORD  replied Alaska  has some  case law that  is out  of the                                                               
main stream and  by adopting the restatement of  torts; we're not                                                               
setting new law.                                                                                                                
                                                                                                                                
CHAIR SEEKINS  thought that  they were  bringing Alaska  into the                                                               
main stream  of law  with this  bill and wanted  to know  if they                                                               
were eviscerating anyone's rights.                                                                                              
                                                                                                                                
MR.  FORD replied  this  bill does  not  set out  in  a bold  new                                                               
direction.                                                                                                                      
                                                                                                                                
SENATOR  OGAN asked  how many  other states  deal with  vicarious                                                               
liability.                                                                                                                      
                                                                                                                                
MR. FORD said he didn't know off  hand, but he would find out. He                                                               
understands that 25 - 26  states do follow the restatements point                                                               
on this issue.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  SAMUELS commented  this  doesn't  deal with  just                                                               
strict liability  for compensatory damages,  but if a  company is                                                               
found directly liable,  you're still on the  hook for everything,                                                               
including punitive damages. This  is only for vicarious liability                                                               
where you're not found directly liable.                                                                                         
                                                                                                                                
SENATOR THERRIAULT  asked if  there had been  an attempt  to make                                                               
the employer  strictly liable  and the court  made a  ruling that                                                               
they are not.                                                                                                                   
                                                                                                                                
REPRESENTATIVE SAMUELS nodded yes.                                                                                              
                                                                                                                                
SENATOR   FRENCH  thanked   Representative  Samuels   for  saying                                                               
"vicarious liability" as that is the correct term.                                                                              
                                                                                                                                
SENATOR OGAN  said he was worried  that this change in  law would                                                               
cause an  employer to  be less than  judicious about  making sure                                                               
their  employees   are  behaving   within  the  scope   of  their                                                               
responsibilities.                                                                                                               
                                                                                                                                
CHAIR  SEEKINS  pointed  out  that  it  only  concerned  punitive                                                               
damages for an employee outside  the scope of employment. He said                                                               
he would hold the bill as a courtesy to Senator Ogan.                                                                           

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