Legislature(2003 - 2004)
05/12/2003 03:25 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 started. REPRESENTATIVE GARA said that he is a little uncomfortable with what Legislative Legal and Research Services "is doing on this one." 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 Committee.