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Judiciary Committee Hearing

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Judiciary Committee Hearing Transcript Prepared By the Clerk of the Legislature Transcriber's Office Judiciary Committee February 13, 2013 [LB169 LB284 LB461 LB482 LB551] The Committee on Judiciary met at 1:30 p.m. on Wednesday, February 13, 2013, in Room 1113 of the State Capitol, Lincoln, Nebraska, for the purpose of conducting a public hearing on LB284, LB482, LB461, LB551, and LB169. Senators present: Brad Ashford, Chairperson; Steve Lathrop, Vice Chairperson; Ernie Chambers; Mark Christensen; Colby Coash; Al Davis; Amanda McGill; and Les Seiler. Senators absent: None. SENATOR ASHFORD: Welcome to the Judiciary Committee. I'm going to change the schedule a little bit. First...Senator Conrad is first. I'm not changing that schedule. But we're going to take LB482 and put in the second position from the fourth position. And just so everybody understands at the beginning, each side will have one hour, not including the questions asked, to present their side. So LB482 will have the proponents first, and that's Senator Kintner's bill. We'll have the proponents first for an hour and then the opponents for an hour, and then a half hour for neutral testimony. It doesn't include the questions and answers. We won't include that in the hour. So with that...and then we can get into more details. Don't worry about that little baby. She can cry or he can cry as much as he or she wishes, as far as I'm concerned. So with that, we're going to get into LB284, Senator Conrad. SENATOR CONRAD: Thank you, Chairman Ashford and members of the committee. My name is Danielle Conrad, D-a-n-i-e-l-l-e, Conrad, C-o-n-r-a-d. I represent the "Fightin' 46th" Legislative District of north Lincoln. I'm here today to introduce LB284. LB284 makes two changes to the Political Subdivisions Tort Claim Act. One, it increases the cap on damages allowed under the act from $1 million to $3 million for any person for any number of claims arising from a single occurrence, and from $5 million to $12 million for all claims arising out of a single occurrence; and it extends the time a claimant can file a claim, from one to two years. The amount of damages allowed has not been changed since this act was enacted in 1985. It does not change the two-year statute of limitations specified in the act but simply increases the amount of time to file a claim, from one to two years, which is consistent with the State Tort Claims Act. I would be happy to answer any questions. I know there are some representatives of different groups and interests behind me, particularly the Nebraska Association of Trial Lawyers, who will testify as well and can provide some more specific expertise. I know you have a long day in front of you and we'll try to be as efficient with the committee's time as possible. Thank you for your consideration. [LB284] SENATOR ASHFORD: Thank you, Senator Conrad. Any questions of Senator Conrad? Seeing none, are you going to stay around? [LB284] SENATOR CONRAD: I will plan to waive my closing. Thank you. [LB284] 1 Transcript Prepared By the Clerk of the Legislature Transcriber's Office Judiciary Committee February 13, 2013 SENATOR ASHFORD: Okay, thank you. Thank you, Senator. How many proponents do we have on this bill? John and maybe somebody else. Come on up. [LB284] JOHN LINDSAY: (Exhibits 1 and 2) Thank you, Senator Ashford and members of the committee. For the record, my name is John Lindsay, L-i-n-d-s-a-y, appearing as a registered lobbyist on behalf of the Nebraska Association of Trial Attorneys. Senator Conrad has laid out the concepts of the bill which are pretty straightforward. One is increasing a cap that has not been changed since the inception of the legislation in 1985, and the second is to extend the claims period. I'll touch that second one, first. To make clear what we are talking about here is a treatment that goes to political subdivisions that others do not...any other person does not have to comply with, and that is the requirement that a notice of claim be filed with the political subdivision. Right now, that must be filed within one year. This would simply say that it must be filed within two years, which is the same standard that the State Tort Claims Act has. It does not change the statute of limitations. That remains. It's just that initial claims period. What I'd like to touch on a little bit more is the cap on damages. That extends back to 1985 when the act was first adopted. This bill sets forth...it actually moves it from $1 million to $3 million and that was intended to roughly approximate inflation. But we would...and we're asking that the committee look at that and determine what's an appropriate level. But I want to point out to you what has occurred since that time. I mean I...at that time, I think I was just fresh out of law school and now I have a lot of gray hair. I think Senator Chambers was just a young senator with only 15 years of experience at that time, and Senator Ashford I believe had not yet started his first term as senator. We're talking about a long ways back there. [LB284] SENATOR ASHFORD: It must have been...it was dark. (Laugh) [LB284] JOHN LINDSAY: But we also just look at what the economy has done, what have prices have done. [LB284] SENATOR ASHFORD: The Dark Ages. [LB284] JOHN LINDSAY: I've passed out to you two documents. The first is the CPI, what the Consumer Price Index has done. And that's a reflection of obviously what costs are. And you can see, between 1986 and 2012, an increase of 229.594 percent increase. Clearly, that million-dollar cap has not kept up with inflation, obviously, since it hasn't changed. But things have just gone up much higher. If we look at healthcare costs, which is a number which would be even higher than that, and that's what these damages typically are going to cover. The second thing I'd like to point out, or the second document that I'm handing out, looks at things, just other types of things that we see day to day. The price of corn has gone from $2.49 a bushel up to $7.33 a bushel. A new car, an average new car, has gone from $9,000 to $28,000. Average wages have gone from $16,000 to $44,000. And that again is something that would be covered by 2 Transcript Prepared By the Clerk of the Legislature Transcriber's Office Judiciary Committee February 13, 2013 that cap, is when somebody is hurt by an act of negligence they would lose wages. And finally, and I think this is important, the average house has gone from $84,000 to $218,000. And remember, oftentimes political subdivisions are funded through property taxes. Their property taxes are based on a much higher level of valuation. But this Tort Claims Act has not kept pace with that. My time is up so I would simply ask that the committee advance the bill. [LB284] SENATOR ASHFORD: Thank you, John. Any questions of John? I think that's...I don't see any. Do we have any other proponents for this bill? Opponents? Okay, Vince. [LB284] VINCE VALENTINO: (Exhibit 3) I have a talking point handout I can provide you, Senator; and everybody else that's on the committee, Senator. My name is Vince Valentino. Since 1976, I've been representing governmental subdivisions in my practice. I would say that I probably have tried a great number of tort claim cases. I want you folks to understand, you know, I'm not here to talk about, you know, how the price of legal education has increased from $3,000 when I went to law school, to $30,000 a year, this year, for law students. But I do want to tell you that there's a public policy issue here and I don't think...maybe you don't realize this; maybe you do. Medicare and Medicaid simply come in, in these catastrophic cases. And I have a case I just tried, it went to the Supreme Court, on a police pursuit case out of Platte County. Sitting in the district court right now was a million dollars and some interest, with Medicare and Medicaid liens filed all over the place. I don't think county taxpayers ought to be subsidizing the federal government. The Tort Claims Act cap has been around for years. Many states have less time than we do to file. Some are as low as two months, three months, and some don't even have $100,000 to $150,000 as a cap in their government. South Carolina has 37 separate exemptions in their tort claims act that preserves sovereign immunity. We have, what...13. When the federal government comes in on these catastrophic cases, when you exceed that cap all we're going to be doing is giving that money to the federal government. And I don't think county taxpayers, frankly, ought to be subsidizing the feds, because they'll take their liens. They'll apply for disability, the folks that are on there. Typically, what I see is I see plaintiffs' attorneys cherry-picking the uninsured and underinsured motorists' benefits before we even get into the litigation process.
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