Legislature(2003 - 2004)

05/12/2003 03:25 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 98 - LIABILITY: PLANE AND BOAT PASSENGERS                                                                                  
Number 0542                                                                                                                     
CHAIR McGUIRE announced that the  next order of business would be                                                               
CS  FOR  SENATE BILL  NO.  98(TRA),  "An  Act relating  to  civil                                                               
liability  for  boat owners  and  to  civil liability  for  guest                                                               
passengers on  an aircraft  or watercraft;  and providing  for an                                                               
effective date."                                                                                                                
Number 0570                                                                                                                     
SENATOR CON BUNDE, Alaska State Legislator, sponsor, said:                                                                      
     Alaska   has   a   lot    of   wonderful   and   unique                                                                    
     [opportunities], scenic  wonders that,  if we  are able                                                                    
     to share them, certainly  [are magnified] ... for those                                                                    
     that are  doing the  sharing.   And those  that haven't                                                                    
     had a  chance to see  them, really, I think,  have some                                                                    
     of   their   experiences   diminished.      There   are                                                                    
     opportunities  when someone  says, "Gee,  ... [it's]  a                                                                    
     beautiful  day; I'd  love to  go for  a boat  ride with                                                                    
     you."    Or  you  might  say,  "It's  really  a  pretty                                                                    
     experience to  see 'X, Y,  or Z';  jump in -  I'll take                                                                    
     you  for a  ride in  the airplane."   Or,  it has  been                                                                    
     mentioned to me, you're in  one place and someone says,                                                                    
     "Hey, I really need to get  back to town; could I catch                                                                    
     a ride with you?"                                                                                                          
     And as a good neighbor, you  would say yes to ... those                                                                    
     prior situations; ... so I  call this a "good neighbor"                                                                    
     bill.    It's an  opportunity  to  share, a  chance  to                                                                    
     access    Alaska     out-of-doors    with    neighbors,                                                                    
     acquaintances,  strangers.   It's  an opportunity  [to]                                                                    
     provide  useful service  to our  friends and  neighbors                                                                    
     without   putting  all   our  financial   resources  in                                                                    
     jeopardy.  Thousands of Alaskans  own planes and boats,                                                                    
     and  share  the enjoyment  of  these  with friends  and                                                                    
     neighbors.   [Senate  Bill 98]  is designed  to clarify                                                                    
     that  people who  accept  an invitation  to  a boat  or                                                                    
     plane  trip, or  ask for  an  invitation to  a boat  or                                                                    
     plane  trip, also  accept some  of  the inherent  risks                                                                    
     that [are] involved in accessing our out-of-doors.                                                                         
SENATOR BUNDE went on to say:                                                                                                   
     [Senate  Bill  98]  provides that  if  a  passenger  is                                                                    
     injured due to  the inherent risk of  a noncommercial -                                                                    
     please let me stress  noncommercial - boating or flying                                                                    
     trip, he or she may not  sue the owner or operator past                                                                    
     the limits  of their liability  insurance.  And  if the                                                                    
     owner  and/or   operator  has  no  insurance   and  ...                                                                    
     notifies  the ...  potential  passenger  prior to  them                                                                    
     boarding  the  boat  or aircraft,  in  that  case,  the                                                                    
     passenger doesn't have  a cause of action at  all - may                                                                    
     not sue.   For example, you're out for the  day in your                                                                    
     boat, you  hit a rogue  wave, something that  you could                                                                    
     not have foreseen, your friend falls, breaks an arm.                                                                       
Number 0759                                                                                                                     
     Current law allows  that friend to sue you  and, as you                                                                    
     have  a boat  or an  aircraft, you're  assumed to  have                                                                    
     deep pockets  and may be  a target for suits  more than                                                                    
     in other  situations.  If  that rogue wave is  a result                                                                    
     of  an inherent  risk,  not your  negligence, not  your                                                                    
     gross  negligence,  not  your  carelessness,  not  your                                                                    
     intentional  misconduct, then  this bill  would protect                                                                    
     you  and  your  family's  assets.    Alaska's  statutes                                                                    
     recognize   that   those   who  participate   in   some                                                                    
     activities must take  responsibility for those inherent                                                                    
     risks.   Already existing in state  law are limitations                                                                    
     ...  regarding  inherent   risk  [related]  to  private                                                                    
     runway maintenance, zoos, unimproved  land, and the ski                                                                    
     safety Act that passed not too long ago.                                                                                   
     [Senate  Bill 98]  does not  absolve owners  from their                                                                    
     responsibility to maintain  and operate their equipment                                                                    
     in  a safe  and prudent  manner.   It does  not protect                                                                    
     those  who engage  or operate  their boat  or plane  in                                                                    
     reckless  or  ...  grossly negligent  manners,  or  who                                                                    
     engage  in intentional  misconduct.   [Senate Bill  98]                                                                    
     only  applies  to  private  owners,  not  to  boats  or                                                                    
     aircraft  that are  used commercially.    This bill  is                                                                    
     endorsed  by  the   Alaska  Airmen's  Association,  the                                                                    
     Alaska [Boating]  Association, the  Personal Watercraft                                                                    
     Club of  Alaska [PWCA], the Knik  Canoers and Kayakers,                                                                    
     and there's  a host  of individuals  who own  boats and                                                                    
     aircraft that are,  I believe, also in  your packet [as                                                                    
     stating support].                                                                                                          
SENATOR BUNDE concluded:                                                                                                        
Number 0855                                                                                                                     
     They   support  this   bill   because  they're   deeply                                                                    
     concerned  about  rising  costs of  insurance  and  the                                                                    
     challenge of  ... a society  that seems to be,  in some                                                                    
     cases,    unwilling    to   accept    their    personal                                                                    
     responsibility and  look at an accident  as a potential                                                                    
     for  a substantial  financial windfall.   They  support                                                                    
     this because of, currently,  our inabilities to protect                                                                    
     their  homes, their  retirement, and  other significant                                                                    
     assets  of their  family.    Therefore, I  respectfully                                                                    
     submit to you  SB 98 for your  consideration, and would                                                                    
     be available for questions.                                                                                                
REPRESENTATIVE GRUENBERG referred  to Section 3 and  Section 5 of                                                               
SB 98  and to  the sectional  analysis regarding  those sections,                                                               
and said that he is a  little bit confused about the interplay of                                                               
those items.   He asked  what Section 3  does and what  Section 5                                                               
relates to.                                                                                                                     
SENATOR  BUNDE  indicated  that because  language  in  Section  3                                                               
contains  similar  language  to  what is  contained  in  Sec.  9,                                                               
Chapter 28, SLA 2000, Section 5 makes reference to it.                                                                          
REPRESENTATIVE GRUENBERG asked what  the practical implication of                                                               
that is.                                                                                                                        
SENATOR BUNDE said  that it is simply  "bill drafters' language,"                                                               
and  that the  current Alaska  boating  safety law  has a  sunset                                                               
provision.    Section 5  recognizes,  but  does not  repeal,  the                                                               
sunset provision contained in that law.                                                                                         
REPRESENTATIVE  GRUENBERG  surmised,  then,  that  Section  5  is                                                               
simply conforming language.                                                                                                     
SENATOR BUNDE agreed.                                                                                                           
REPRESENTATIVE GARA asked for more information.                                                                                 
Number 1092                                                                                                                     
KAREN  McCARTHY,  Staff  to  Senator   Con  Bunde,  Alaska  State                                                               
Legislature, said:                                                                                                              
     As  I understand  the  convoluted way  they  had to  go                                                                    
     about the Alaska boating safety  Act, first they had to                                                                    
     put all of  the statute in place, and then  they had to                                                                    
     put it in  place again in order to sunset  it.  And the                                                                    
     way they did it was that  at the end of that bill, they                                                                    
     referred to  various sections of  that bill  that would                                                                    
     be sunsetted.  And so  that's why [language in] Section                                                                    
     1  and Section  3 [of  SB  98] are  identical, but  the                                                                    
     sunset reference  in Section  5 only refers  to Section                                                                    
     3.  I'm  not sure that that's any clearer  than when we                                                                    
REPRESENTATIVE GARA said  that he is a  little uncomfortable with                                                               
what Legislative  Legal and Research  Services "is doing  on this                                                               
MS. McCARTHY responded:                                                                                                         
     I had the same conversation  with the bill drafter, and                                                                    
     ...  because  the  Alaska  boating  safety  Act  had  a                                                                    
     liability section in  it, the bill drafter  felt it was                                                                    
     appropriate  to  reference  that  in this  bill.    And                                                                    
     because of the way that bill  was written, we had to do                                                                    
     it this way.   It's uncomfortable and  it's kludgy, but                                                                    
     that's the way it had to be done.                                                                                          
REPRESENTATIVE GARA replied:                                                                                                    
     If  there  is somebody  who  has  an action  under  the                                                                    
     former  version of  the Act,  the Act  that's in  place                                                                    
     right now,  this changes their  rights.  Even  if we're                                                                    
     not intending it to, it  does. ... If somebody sued ...                                                                    
     - let's look at page 2,  line 27, ... under this former                                                                    
     version of the  statute, which is [Sec.  9, Chapter 28,                                                                    
     SLA 2000 -  if] somebody has an action  under that law,                                                                    
     we're now changing the law retroactively.                                                                                  
CHAIR  McGUIRE   pointed  out,  however,   that  SB  98   has  an                                                               
applicability provision, which says,  "This Act Applies to causes                                                               
of  action that  accrue on  or after  the effective  date of  the                                                               
applicable section  of the  Act."   She surmised  that this  is a                                                               
critical part of SB 98.                                                                                                         
REPRESENTATIVE GRUENBERG  suggested that the language  on page 2,                                                               
line  28, of  SB  98, which  reads,  "Sec. 9.    AS 05.25.040  is                                                               
repealed and reenacted  to read:" is not the normal  way a simple                                                               
addition to statute is drafted.                                                                                                 
MS. McCARTHY pointed out, however,  that language on page 2, line                                                               
27, does say, "* Sec. 3.  Section  9, ch. 28, SLA 2000 is amended                                                             
to read:".  She indicated that  the language on line 27 is simply                                                               
how that portion of Sec. 9, Chapter 28, SLA 2000, reads.                                                                        
REPRESENTATIVE  GARA   suggested  that  the   committee  consider                                                               
amending SB  98 so as  to clarify that  the bill only  applies to                                                               
causes of action that arise in the future.                                                                                      
SENATOR BUNDE said he has no objections to such a change.                                                                       
CHAIR McGUIRE said such a change seems reasonable.                                                                              
Number 1344                                                                                                                     
REPRESENTATIVE GARA  made a motion to  adopt Conceptual Amendment                                                               
1, to  add "only"  to page  3, line 12,  after "applies".   There                                                               
being no objection, Conceptual Amendment 1 was adopted.                                                                         
REPRESENTATIVE GARA, noting that he  takes people on his raft all                                                               
the  time,  declared  a  potential  conflict  of  interest.    He                                                               
referred  to  Senator  Bunde's  example  of  an  unforeseen  wave                                                               
causing the  death or  injury of  a passenger,  and said  that he                                                               
disagreed  that the  owner and/or  operator could  be sued  under                                                               
current law.   If it is really an  unforeseen circumstance, there                                                               
could not  be a  lawsuit because  there is  no liability  in such                                                               
circumstances.  Of SB 98 overall, he remarked:                                                                                  
     We're taking  away rights to  people with  valid claims                                                                    
     by  saying  we're just  trying  to  stop the  frivolous                                                                    
     ones, but I  wish we could sort of tailor  our bills to                                                                    
     just apply  to the  frivolous ones  rather than  to the                                                                    
     valid ones too.   So here, we're taking  away the right                                                                    
     for  somebody  to  sue for  negligence,  just  in  case                                                                    
     somebody  filed  a  frivolous  suit.    That's  just  a                                                                    
     comment.   I will  probably ... vote  in favor  of this                                                                    
     bill if I make sure I  understand it correctly.  So let                                                                    
     me go  through ...  [the] three understandings  I have,                                                                    
     and just tell  me if I'm correct about  this. ... We're                                                                    
     only   ...    changing   the   liability    rules   for                                                                    
     noncommercial users.  Right?                                                                                               
SENATOR BUNDE said that is correct.                                                                                             
REPRESENTATIVE GARA then said:                                                                                                  
     Even if you are a  noncommercial boat or aircraft owner                                                                    
     and you  take somebody  out and  you do  have liability                                                                    
     insurance, you're still liable up  to the limits of the                                                                    
     liability insurance.  Is that correct?                                                                                     
SENATOR  BUNDE  said that  is  correct,  adding that  he  himself                                                               
carries  liability insurance  because  there  are accidents  that                                                               
could  occur   involving  someone  other  than   a  passenger  or                                                               
property.   He suggested  that it  is prohibitively  expensive to                                                               
carry maximum,  or sufficient, liability  coverage; at  least for                                                               
aircraft, it  would have to be  $1 million per seat.   Surely the                                                               
issue of the waiver will come  up, he surmised, noting that there                                                               
have been  a number discussions  on this issue  in the past.   He                                                               
noted  that  someone  else's rights  cannot  be  suborned;  thus,                                                               
although someone could sign a  waiver beforehand, the waiver does                                                               
not bind surviving family members.                                                                                              
REPRESENTATIVE GARA  then referred  to page 2,  lines 21-26.   He                                                               
said:  "[Subparagraph]  (B) says [that] if  you're a recreational                                                               
user  and you  fail to  get a  waiver, then  you don't  enjoy the                                                               
liability limitation."                                                                                                          
SENATOR BUNDE confirmed this.                                                                                                   
REPRESENTATIVE GARA  said he thinks that  the distinction between                                                               
commercial  and noncommercial  users is  a good  one and  is glad                                                               
that SB 98 is limited to  noncommercial operators, and that it is                                                               
wise  to  allow  someone  to  recover  up  to  the  limit  of  an                                                               
operator's liability insurance.  He said  he did not have any big                                                               
objections to the bill anymore.                                                                                                 
Number 1636                                                                                                                     
REPRESENTATIVE SAMUELS moved to  report CSSB 98(TRA), as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying zero  fiscal note.   There  being no  objection, HCS                                                               
CSSB  98(JUD)  was reported  from  the  House Judiciary  Standing                                                               

Document Name Date/Time Subjects