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