The Senate Committee on Transportation was called to order by Chairman William R. O'Donnell, at 1:30 p.m., on Thursday, February 18, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator William R. O'Donnell, Chairman

Senator Mark Amodei, Vice Chairman

Senator Lawrence E. Jacobsen

Senator Raymond C. Shaffer

Senator Maurice Washington

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Joan Moseid, Committee Secretary

OTHERS PRESENT:

Chairman O’Donnell opened hearing on Senate Bill (S.B) 151.

SENATE BILL 151: Removes provision that prohibits failure to wear safety belt from being considered as negligence or causation in civil action. (BDR 43- 340)

Robert B. Feldman, Lobbyist, Auto Insurance America, Nevada General Insurance Company, testified in favor of S.B. 151 on behalf of the Nevada General Insurance Company, a domestic-based automobile insurance company. He commented that Auto Insurance America has to be concerned more with the laws in the State of Nevada than any other insurance companies in Nevada.

Mr. Feldman indicated that Blue Cross and Blue Shield health insurance rates have increased by 27 percent; the state employees health insurance went up 23.6 percent; and throughout the United States, health care cost is on the rise. He said, very frankly, it was a matter of time before some of these matters would affect the automobile insurance rates, particularly when pain and suffering awards on automobile accidents are somewhat based on medical insurance. He iterated, "The higher the medical insurance, generally means the higher the awards."

Mr. Feldman presented an article titled, "The Belt Defense," Arizona Bar Journal, April/May 1998, (Exhibit C) and acknowledged that it was written by a well-known attorney, Robert L. Greer from Arizona. He read aloud from page 2 of the article:

Mr. Feldman emphasized that there have been studies done since the year 1958. They included a federal study, an NDOT (Nevada Department of Transportation) study, a Nevada highway patrol study, and the insurance industry studies; also the automobile manufacturers study, and the crash tests that were conducted in America and Canada. Mr. Feldman stated that there is not any question, whatsoever, that wearing a seat belt reduces the frequency of injuries or the severity of injuries. This is one of the reasons why the seat belt law was passed in Nevada several years ago and later became a federal mandate. He continued to say there was an article in the Reno Gazette-Journal this week which acknowledged that Nevada’s compliance with seat belts is a little bit above the national average of 70 percent in compliance. The national average is 68 percent. He indicated 30 percent of the people do not comply with the seat belt laws. Mr. Feldman mentioned he has worked in the high-risk insurance business for 27 years and can say without reservation that 30 percent of the people who do not comply with the seat belt law are probably involved in more than 30 percent of accidents. They probably do not take responsibility for anything.

Mr. Feldman handed out a copy of an appealed case from Arizona (Exhibit D. Original is on file in the Research Library) and referred to it as being one of the most well-written Arizona Supreme Court decisions that has to do with seat belts in the United States. He indicated that it was written in laymen’s language, and pointed out that the Justices of the Arizona Supreme Court wrote this appeal. Mr. Feldman asked if the committee could review page 5 of the Arizona Supreme Court’s decision. He explained to the committee if they reviewed this case they could track the arguments from the trial lawyers, to the representation by the defense lawyers in Arizona, to the district court, to the court of appeals, and then to the Arizona Supreme Court. Mr. Feldman suggested to the committee it would take 30 or 40 minutes to read the whole document. He commented the court of appeals’ opinion could provide a thorough education on the development of seat belt laws all the way back to 1955.

Mr. Feldman read from page 5 (Exhibit D), the arguments that were presented against allowing the nonuse of the seat belt as comparative negligence to reduce damages on an award. He quoted, "Motorists need not assume that they face danger from the negligence of others." Mr. Feldman said this argument was raised in Arizona and specifically addressed in the Arizona Supreme Court decision. He also emphasized, it is obvious today that the average of an automobile accident for an American family is one in every 6 years on a highway nationally; and in Nevada, it is probably once every 5 years, since Nevada has a little higher frequency of accidents. He remarked that the opinion of the court of appeals was that it is not a question if an individual would be in an accident; it is more likely an individual will be in an accident sooner or later. He testified to the fact that it is very reasonable for people to wear seat belts to protect themselves, so that they do not have any more damage than necessary from an automobile accident.

Mr. Feldman then quoted, "Seat belts cause as many injuries as they prevent." Mr. Feldman said this statement was addressed specifically in the opinion of the court of appeals and believed it to be being absolutely false. He remarked that every study showed seat belts saving injuries; and if seat belts save injuries, there is a reduction of rising health care costs and also a reduction in automobile insurance costs for the insurers.

Mr. Feldman read, "There is no duty to wear a seat belt." He commented when this opinion was written, Arizona did not have a seat belt law in effect. Arizona had just gone from contributory negligence, which is a situation where the person most responsible for an automobile accident paid all the damages with no deduction at all. He gave an example; "If a driver smashed into another vehicle, traveling too fast or not maintaining a proper lookout for the other vehicle, and the driver was the cause of the accident, this driver would be responsible for all the damages with no deduction." Mr. Feldman acknowledged when Arizona switched to comparative negligence, at that time this was a situation where all facts could be presented to a jury. He pointed out that the seat belt use is one fact and is not the cause of the accident, but the fact is the amount of damages in many cases.

Mr. Feldman continued, "The entire matter should be left up to the Legislature." Mr. Feldman said this was addressed in this decision; and agreed that the entire matter can be cleared up by the Legislature, because what the citizens have in Nevada is a law that says a person has to wear seat belts. We already know how much it costs in insurance premiums. Also, if a driver does not have insurance it will cost the taxpayers to pay for all the injuries of the people who do not wear seat belts. He drew attention to the law that was enacted in 1987 in Nevada, and said this law would not allow a person to mention the words "seat belt" in a court case. He believes if a person could bring up this matter it would reduce a great deal of damage awards. It can be proven that a driver did not take reasonable precaution to wear a seat belt or did not obey the law. Mr. Feldman gave a couple of examples from numerous cases in Nevada. He referred to a male driver who had cracked his head on a windshield and was badly injured because he was not wearing a seat belt. Mr. Feldman considered it a very minor accident. He then referred to a female driver who was in a collision, the air bag operated, and protected her from hitting the steering wheel. Because she was not wearing a seat belt, she slid over the top of the air bag and cracked her head on the top post of the car. Mr. Feldman stated there are numerous cases that Auto Insurance America Company has that amount to hundreds of thousand of dollars worth of medical bills, that would have been prevented if they were wearing seat belts.

Mr. Feldman continued, "The victim’s seat belt nonuse should not create a windfall for the person at fault in the accident or the person that actually caused the accident." He said this was addressed in this opinion.

Mr. Feldman then quoted, "The Incorporation of evidence of seat belt nonuse would unduly complicate litigation." He remarked that some litigation gets complicated and agreed the court system should not hear these types of issues.

Mr. Feldman read, "Allowing the introduction of evidence on seat belt nonuse would initiate a series of unwanted and unforeseeable consequences for accident litigation in our state." Mr. Feldman commented this is Arizona’s wording, which is similar to Nevada’s. He said there have not been any additional complications in Arizona, since this was Arizona Supreme Court’s decision over 10 years ago and this does raise a seat belt issue in many other states. Mr. Feldman asked the committee to read Exhibit D because it is in plain language, and there was a lot of research done on it, that gives all the education one needs on the subject in raising seat belts as comparative negligence as an issue to reduce damage cases. He stated, very frankly, if he was in a minor fender bender with another driver and the other driver did not take the responsibility to obey the law and wear a seat belt, he strongly believed the other driver would have walked away with a minor injury.

Mr. Feldman asked the transportation committee to return the insurance companies back to the thrilling days of yesteryear where the dependents and lawsuits had full rights. He concluded that some cases could be proven without a doubt, in the Nevada Supreme Court, that a person’s failure to wear a seat belt would either magnify their injuries or cause the injury, and the court would be able to take a deduction off a damage award. He said there are facts for the jury to consider. He confirmed a person who does not wear a seat belt certainly is not at fault for the accident automatically and this is another subject altogether. He strongly indicated that this issue would reduce damages and also reduce auto insurance for that matter. He said currently the insurance companies pays for the seat belt issues both on the medical payment side and in a lawsuit; and then have to pay triple on the third-party’s lawsuit side. He stated that this factor is one of the contributors to very high insurance rates in the State of Nevada. He also believes that there are a few laws that really magnify these isssues, and he would like to see the insurance industry take the blame for the higher insurance rates that has occurred in the past years.

Senator Care asked Mr. Feldman for clarification that if this language were deleted from the statute, "Would a failure to use a seat belt be considered as negligence, or if the jury would take this language into consideration for a case?" Mr. Feldman said the jury might consider the fault of the accident but to only reduce damages and awards for a person’s failure to wear seat belts. He reiterated the insurance companies are not allowed to raise this issue, at this time.

Senator Care asked Mr. Feldman if he had any projection or idea as to what the dollar amount of awards might be reduced. Senator Care called attention to Clark County because this is where he practices law. He commented he does not handle personal injury, but would like to know what kind of impact this would have on jury awards.

Mr. Feldman commented the bodily injury liability insurance, medical payment insurance coverage on cars, and uninsured motorist coverage might be subject to some awards. He said perhaps it might have an impact anywhere from 2 to 5 percent in overall rates and coverage, which is a ballpark figure. The actuaries would have to be studied and only the experienced in these areas could possibly dictate the percentage, because the insurance company would not know what the jurors might award.

Senator Care asked Mr. Feldman if he would consider it a failure to activate air bags as negligence. Mr. Feldman responded that the air bag is an automatic activation; and today this has been addressed in the Arizona Supreme Court’s decision, also.

Senator Wiener confirmed there is a medical recommendation to deactivate an air bag, due to safety reasons, for all drivers or passengers 5 feet and under in height. She queried Mr. Feldman, based on the premises that Senator Care raised with the air bag, if she could be held liable for deactivating an air bag that was medically recommended for deactivation.

Mr. Feldman added the State of Nevada does not have an air bag law and acknowledged this action could become a future law. Mr. Feldman said in a comparative negligence state all facts relate to the liability for the accident, and all facts related to the cause of the injury should be a subject for the court to determine. Mr. Feldman referred to Exhibit C and said would have to show proof scientifically that the use or the nonuse of the seat belt and air bag contributed to a person’s injuries. He said there might be some valid reasons for not wearing a seat belt and referred to the case of a pregnant woman or a person who has had surgery, along with the statutory exclusion for children under a certain age.

Senator Amodei asked Mr. Feldman what the potential would be as a result of being able to use this law in litigation context or claims-adjusting context for holding people more responsible for their decision to use or not use seat belts. Senator Amodei implied if S.B. 151 passed, would the insurance industry lock in actuarials to decrease insurance rates for the people in the State of Nevada. He commented as a result of this, people might use seat belts if there are potential savings in terms of medical cost and disability cost.

Mr. Feldman responded by saying definitely there could be a decrease in insurance rates, which has been his and the commissioner’s major concern. He explained to the Senate Committee on Transportation that he had attended a few committee meetings for the commissioner, and the insurance rates in Nevada have not decreased like the rates in other parts of the United States. Mr. Feldman strongly expressed how he would like to see the rates reduced at this point. He claimed there are laws in the State of Nevada that contributed to the high rates.

Senator Amodei repeated the question to Mr. Feldman if, in his opinion, the rates would stay the same or decrease. Mr. Feldman answered yes, the insurance rates would decrease because these rates would be based on the actual claims. If the claims are lowered and the medical payments show that 30 percent of people who are not wearing seat belts injuries drop down to 15 percent; he believed, there would be less claims that would have an impact, not only on automobile insurance rates, but health insurance rates as well.

Senator Amodei asked Mr. Feldman if he knew what percentage of monies being paid toward the medical or disability medical payments was related, because it seems as though the monies would add up to a large amount. Mr. Feldman passed out three copies of a "Nevada Insurance Fact Book" (Exhibit E. Original is on file in the Research Library). He told the committee that he represents the Nevada Insurance Council, as the Secretary Treasurer, that publishes the fact book. He pointed out that the Nevada Insurance Fact Book documents all the payments for claims and expenses for medical payments; collision comprehensive coverage; and a section on insurance fraud in Nevada which will be addressed later in this session. Mr. Feldman stated all the members on the council are the insurance companies that virtually insure the entire State of Nevada. Ninety-eight percent are members such as State Farm, Farmers and Allstate Insurance companies.

Chairman O’Donnell addressed Mr. Feldman by saying if the transportation committee could determine that the interest in this bill means well, and there would be a 5-percent reduction in insurance rates, this bill could possibly pass. He asked Mr. Feldman if the insurance companies would add an amendment to reflect the 5-percent reduction in insurance rates.

Mr. Feldman talked about a notice of change letter from the Auto Insurance America Company (Exhibit F), to reduce insurance rates to 6.1 percent, effective February 1, 1999. He said the Auto Insurance America Company received a lot of letters from customers thanking the company for the reduction. Mr. Feldman suggested that each company would have to address this matter with their home offices; and perhaps look at the actuarial results in other states, because some companies have different liabilities limits. Mr. Feldman believed S.B. 151 would have an positive impact on the State of Nevada. He said if the courts present experts to prove these cases, it could be costly. Some companies today use experts to prove accident reconstruction, including biomechanical engineers to show the impact of accidents. He strongly indicated that a person should not be responsible for another person’s unreasonable conduct for failing to use a seat belt. Mr. Feldman commented that his 5-year-old grandson reminds anyone who he rides with to put on their seat belts. Mr. Feldman stated people are being protected and rewarded by the courts for violating the seat belt laws.

Senator Care asked if the 30-percent figure was correct for people not using seat belts because there might be a conflict in the statistics with other sources. Mr. Feldman told Senator Care that he had read the Reno Gazette-Journal newspaper a few days ago where statistics read for the State of Nevada is 70 percent in compliance, and the national average is 68 percent. Senator Care requested a copy of the article for the transportation committee to review. Mr. Feldman concurred.

Brian Hutchins, Chief Deputy Attorney General, Transportation and Public Safety Division, Office of the Attorney General, testified in support of S.B.151, and on behalf of all of the agencies he represents. Mr. Hutchins explained that his testimony was not aligned with the agencies nor had he spoken to any proponents and committee members about this bill. He believed this bill is of significance to the State of Nevada. Mr. Hutchins stressed that seat belts do save lives and prevent injuries and there is a large cost to the citizens in the State of Nevada when seat belts are not worn. He passed out to the committee a statistical chart, "1997 Nevada Traffic Crashes," regarding percentages of fatalities and injuries percentages (Exhibit G), and said Frederick Droes and Joanne M. Keller would explain these exhibits later in this hearing. He mentioned in the late 1980s in Nevada; the seat belt law was enforced and since then the percentages of fatalities and injuries have dropped dramatically.

Mr. Hutchins addressed the issue that a failure to wear seat belts cannot be used to show negligence or causation by nonusers. He emphasized if someone besides the nonuser is at fault in an accident then that person cannot; at this point in time, point to the nonuser of the seat belts and say deadly injuries could have been prevented and the damages would be less. He maintained this is an incentive and responsible bill, and it has been somewhat phased in and mandated the use of seat belts; but nonuse of seat belts are not a primary moving offense according to present law. Mr. Hutchins noted Nevada has not been able to use this law to point to nonusers and say that part causation or part negligence would reduce the damages. He insisted S.B. 151 would be prudent to have to educate the new generations to show statistically that damages can be reduced in many instances.

Fred Droes, P.E., Chief Safety Engineer, Nevada Department of Transportation (NDOT), inquired of the committee if there were any questions on Exhibit G. Senator Shaffer asked if anyone could quote how many states currently have this similar law. Mr. Droes responded he could not give that information at this time.

Chairman O’Donnell queried Mr. Droes if the compliance would increase if this bill passed. Mr. Droes replied it would be very difficult to track the actual increase but would be one more incentive for a person to wear a seat belt when driving. Chairman O’Donnell asked Mr. Droes if he believed a person not wearing a seat belt would realize after the fact that they would become a party of a lawsuit and lose because they did not wear a seat belt at the time of the accident; or would they get the message later. Mr. Droes said he did not have any statistical numbers on this matter and could basically only take a guess.

Joanne Keller, Highway Safety Coordinator, Traffic Safety Division, Department of Motor Vehicles and Public Safety (DMV&PS), stated that national statistics show the language "going to court" may not impact the usage of seat; belts but on a national average when a state passed a primarily enforced seat belt law, seat belt use raised 10 to 15 percent. She clarified that each year NDOT conducted a seat belt-use survey, and the 1998 survey showed that the usage rate was 76 percent and 70 percent in 1997.

Mr. Hutchins then reemphasized what Ms. Keller had said, referred to the primary offense law, and asked the committee to look at page 2 of S.B. 151, section 4 paragraph (a); "Is not a moving traffic violation under [Nevada Revised Statutes] NRS 483.473." He said, currently a person cannot be cited primarily with a moving traffic violation. It could be a secondary matter if the person is pulled over for another offense. The officer can note the seat belt was not on and can cite at that time. He continued to say if the committee removed the "not" in subsection 4, paragraph (a) to say, "It is a moving traffic violation," then it would become a primary offense. In other words, it would be an incentive to buckle up. Chairman O’Donnell responded, otherwise it is not that much of an incentive to wear a seat belt. Mr. Hutchins agreed with Chairman O’Donnell and suggested that this is an incentive, and a person might not know what the outcome would be by not wearing a seat belt. Mr. Hutchins commented this is why S.B. 151 is considered a responsibility bill. A person might encounter less damages if a seat belt is worn at the time of an accident.

Senator Care recalled, as a child, when cars first started having seat belts. A lot of people did not want to wear them and people would argue, "Well, the seat belts have killed just as many people as they have saved." Senator Care’s response was he did not believe that statement. He asked if anyone could retrieve any statistics that indeed show how many people’s lives are saved by seat belts or how many injuries are reduced by seat belts. He also requested someone to show, in these instances, where a person might, in fact, have been injured or killed because of wearing a seat belt.

Ms. Keller indicated that DMV&PS maintains information on fatalities and in 1997, 56 percent of the fatalities were not wearing safety belts. Mr. Hutchins then pointed out in a statistical chart labeled, "Non-Use of Restraints by Victims in Fatal Crashes" (Exhibit G), and reiterated to the committee the percentages from 1988 to 1997. He said approximately 56 percent of the victims in 1997 were not using seat belts. Chairman O’Donnell asked if the victims were primarily Nevada residents or California residents on I-15, because there are a lot of fatalities on I-15 where people fall asleep while driving.

Ms. Keller responded the seat belt survey statistics showed the people from other states do buckle up more frequently than the residents of Nevada. Mr. Droes’ reply was that statistics are available and he would certainly provide them to the committee.

Senator Amodei asked Mr. Hutchins if he was aware of anything in the statutes that prohibits the nonuse of a restraining-device exclusion from being contractually in an insurance policy at the moment. Senator Amodei asked, "Why should the state make this a law, if this provision can be done contractually, as we speak."

Mr. Hutchins responded he had not considered this angle. Mr. Hutchins asked Senator Amodei "If this could be a suggestion to the insurance companies to add a provision to the insurance contracts such as, "If a person does not wear a seat belt this person will have consequences in insurance rates." Senator Amodei indicated that this law would be considered as a title insurance policy. He explained the potential of not using a restraining device could depend on the fact of the case being an exclusion for medical coverage. Senator Amodei gave an example to the committee members, "If a testimony says, had Amodei worn a seat belt he would not have hit his head on the windshield, thereby causing fatal injuries to his head, therefore, it was not the accident that occurred at 35 mph that really caused this problem. It was Amodei’s failure to wear a seat belt and accordingly, as a result of his negligence, there is no coverage obligation under this statute." Senator Amodei reiterated, "If this provision is in the law, and before the state impacts all insurance policies in this state, can this be done contractually without having to go to the state law."

Mr. Hutchins directed concerns toward the insurance policy and mentioned the court may or may not pay off the insurance limits. He explained if the claim is not paid to the limits, the claimant would be able to go against the tort-feasor to recover more and sometimes there might be multiple tort fees. Mr. Hutchins said Nevada Department of Transportation is one example of who might be able to get recoveries from an insurance company. Whether or not there is a contractual arrangement and preclusion used, NDOT can still bring action against another tort-feasor and continue to recover. This has nothing to do with the contractual obligation of the insurance. Mr. Hutchins stated the position of the chief deputy attorney for the State of Nevada is after there were liability actions, the state would like to point out that these injuries would not have been severe had there been seat belt laws in effect. He believed the large judgement should be reduced proportionately according to what a jury would find.

Senator Amodei asked Mr. Hutchins if protection was available to those people who are exposed as a result of an automobile personal injury or death accident lawsuit, with the potential to materially reduce insurance payments made for personal injury or death as a result, what it would do to the cost of settlements. He also asked if it would have the same result as not wearing restraining devices. Senator Amodei suggested it would then have the potential to materially reduce what people pay for insurance in this state. He asked Mr. Hutchins for his opinion on this matter.

Mr. Hutchins emphasized the Office of the Attorney General does not get involved with the insurance matters in those areas with the exception of being sure payment is made to the insurance companies or the claimants when injured. He indicated the State of Nevada is self-insured and does not have insurance policies. Senator Amodei commented to Mr. Hutchins since he had chosen to take a position on this bill by testifying with plenty of safety information at his disposal, and he asked Mr. Hutchins what the statistics would be for this state in terms of enhancing the safety of the people involved in the accidents. Mr. Hutchins’ opinions were the same as Senator Amodei that it would cause a reduction in rates if there were less injuries and less deaths, due to more people using seat belts.

Senator Shaffer said in summarizing this bill, it seems there is no evidence or strong measures that would certainly reduce medical costs or reduce insurance rates. He queried if it would be possible to pass this bill with a "sunset" by the next session and said the more restrictions put on some constituents without good cause or reasons, the more upset they become. Senator Shaffer voiced concerns if these measures do not affect the insurance rates, why should the government be a part of restricting a citizen on whether or not a citizen chooses to wear seat belts.

Mr. Hutchins responded, at this time there is no empirical data to talk about the other passengers’ restraints such as air bags as discussed earlier. He pointed out Exhibit G and said this chart does show data to support the use of seat belts has greatly reduced injuries, and this is why it is limited to the seat belt law. Mr. Hutchins concluded as far as the "sunset" there is no opposition; it will give the state more data to show that this is a law that works. This law is not saying a person will be cited if not wearing a seat belt. It is another normal and natural consequence for a person not choosing to use a law that has been proved to help prevent injuries and death.

Richard E. Shrader, Jr, Lobbyist, AAA Nevada, spoke in favor of S.B. 151 and concurred that there is plenty of evidence that seat belts are effective and uniquely available as a means of mitigating damage before an accident. It ultimately encourages usage, encourages personal responsibility, and assigns the cost to the individual responsibilities. He said as to the insurance cost, it has been pointed out that the insurance companies do not know what actions the jury will take or what each individual carrier’s experience would be. The carriers look at these cases prospectively. He stated he believed it definitely has the potential to cut out claims cost. Mr. Shrader noted if the risk gets underwritten, most of the people are not at fault in the accident, and another passenger is wearing a seat belt, then this would reduce the obligation of a company in paying claims.

Senator Amodei requested from Mr. Shrader information for the last full year on claims paid by the AAA Nevada Insurance Agency for personal related injuries and other related categories. Senator Amodei commented that the actuarial business is a prospective business, and it would be nice to see how much out of every dollar goes to areas that could be impacted by this bill. Mr. Shrader said he would be willing to research that information.

Bill Bradley, Lobbyist, Nevada Trial Lawyers’ Association, spoke against S.B. 151 by saying that everyone believes wearing seat belts is a good idea and he would like to address some of these issues. He acknowledged the seat belt law was passed only because the National Automobile Manufacturers’ Association was trying to avoid the obligation to install air bags. It was a requirement that two-thirds of the states pass mandatory seat belts laws; then air bags would not have to be implemented until many years later. Mr. Bradley claimed that strategy failed and the consumers installed air bags to spite that attempt to thwart the good intention of the consumers.

Mr. Bradley suggested that this bill involved a way to blame a person who is not at fault for an accident for increasing the injuries and said this is how it is interpreted in the courtroom. He asked the committee to read Exhibit C and to review the dissents in it that show exactly what problems have occurred on this bill. Mr. Bradley asserted the fact that seat belts cannot be used to show if the injuries are worse or better had the seat belts been worn. He remarked the only way to prove this issue is through expert testimony. Mr. Bradley’s observations were from two books in his possession at the time of the hearing and he testified that these books were filled with a list of experts. He basically stated what would happen if any of the insurance companies had to prove the injuries were worse. They would hire biomechanical engineers that are $5,000 to $7,000 or $10,000 per case. That engineer would come in and say if that person would have been wearing a seat belt then the injuries would have been "X" amount. Mr. Bradley stressed this situation would put an obligation on the other side to also hire an expert. He maintained that whoever obtains the expert first, the expert would say the injuries would have been "Y;" then it would become an extremely expensive battle of experts prolonging and increasing the seat belts case of litigation. He emphasized to the committee that this is a very difficult decision if cause increased injuries, reduced injuries, or cause different injuries. Mr. Bradley addressed a committee member’s question and said the statistics on increased injuries, as a result, could be spleen injuries or internal organ injuries. Unfortunately when a person wearing seat belts across their body stops, the organs inside the body keep on moving; consequently by allowing this law to be enforced, it will create a huge battle of the experts in a courtroom which increases and prolongs the cost of litigation.

Mr. Bradley stated Nevada has done a great job of balancing this test because at this time, if a person is in an accident, and not at fault, and was not wearing a seat belt this person gets cited and given a criminal penalty. He voiced concerns over whether or not the civil case goes forward this person has already been punished for not wearing a seat belt. Next the insurance companies want to punish that person criminally and then punish this same person civilly. Nevada has struck the balance between not allowing it in the civil courtroom but allowing that person to be punished criminally. This is an excellent balance that trades off between the two interests. Mr. Bradley drew attention to Senator Care’s question about negligence and iterated it was a very important and valid question to ask. He said when that person is cited for failure to wear a seat belt and involved in a civil case, that would be negligence perse without question. Mr. Bradley liked the idea that the committee members had asked the insurance companies to commit to a rate reduction before the S.B. 151 is passed and mentioned that some rates in Nevada have dropped.

Senator Care requested from Mr. Bradley a comparative list of states that have similar statutes to Nevada.

Senator Washington reviewed Exhibit G and questioned if the increase in use of seat belts is due to education or attributed to the law. Mr. Bradley affirmed that people are well educated today about the use of seat belts and agreed with the committee that this type of law will not increase the compliance. It will be an after-the-fact gaining of knowledge. Mr. Bradley said he agreed with Mr. Feldman and affirmed it is wonderful to see all the children taking the seat belt laws in consideration; but the children, too, would be impacted by this law and it would also include pregnant women because this law is in black and white. Mr. Bradley commented this bill proposes if a person does not have a seat belt on, even for valid reasons, these experts will be appearing at $7500 per case to say it was that person’s negligence; and he insisted this was wrong.

Senator Washington asked if a case has expert testimony from both sides, and the court costs increased because of the experts’ testimonies, if that in essence translates to increased premium cost. Mr. Bradley agreed that the court cost would be increased. He iterated to the committee that the Nevada Trial Lawyers’ Association is working very hard on a program to make summary 1-day jury trials, to expedite the little cases through the arbitration system because of a lot of problems in southern Nevada. Mr. Bradley strongly stressed if this bill passes it would increase the cost of the small cases and put that 1-day summary jury trial in danger. This is why the system should keep the experts out of these matters.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, raised her concerns by stating a disclosure of the seat belt laws, which were designed to protect the citizens, seemed to be used as a wrong law. Ms. Lusk maintained the legitimate role of government is to protect citizens from others who maliciously harm through violent crimes, fraud, or slander. She commented she had always worn a seat belt before and after the law was passed. Ms. Lusk stressed the purpose of the citizens’ questions would be to understand this bill’s proposal and what it is trying to accomplish. Ms. Lusk’s first question was if S.B. 151 passes, and a drunk driver hits another driver, and the other driver did not have a seat belt on, would this mean that the drunk driver or the drunk driver’s insurance company would not have to pay for the other driver’s injuries? Her second question was if a person has medical coverage with his vehicle insurance, does this mean the other driver’s insurance company will not pay for the injured driver in the accident if that driver who was hit was wearing a seat belt at the time of accident? Ms. Lusk’s third question was what type of payment effect would there be on a driver’s health insurance if this driver was in an accident and not utilizing seat belts? Ms. Lusk referred to the comments made earlier in the hearing and said these issues were of great concern to the citizens. She called attention to the NDOT representative’s statement that was made earlier that the seat belt law had been phased in and people are used to it now; therefore, it is time to add to it. Ms. Lusk referenced the primary seat belt law and commented how an entity starts with a law that makes sense, phases it in, and later adds more and more to infringe upon it. She pointed out that the primary seat belt law, in her opinion, would give law enforcement the ability to stop peaceful citizens just to look for those who do not have on seat belts and cite for that reason only. Ms. Lusk stated the citizens have no problems if the insurance companies wanted to give clear advance stipulation to the purchase of a policy that would not pay if a driver does not have on a seat belt at the time of an accident. She stated she strongly appreciates the consumer decision if this is what S.B. 151 would accomplish for the citizens. She concluded let free enterprise do its job but, if this bill has some other purpose such as evading the responsibility for payment by insurance companies who insure those who are drunken drivers or otherwise irresponsibly cause accidents, then she asked the committee to consider this bill very carefully.

Chairman O’Donnell asked Ms. Lusk if she had ever been in an accident and, if so, how many? Ms. Lusk answered yes, there were two accidents. Chairman O’Donnell asked if she was a seat belt at the time of the accident and what was the first thing she did when she got into an accident. Ms. Lusk responded she got out of the car. Chairman O’Donnell asked her how she got out of the car if the seat belts were on. Chairman O’Donnell queried Ms. Lusk if anyone could prove that you did or did not have a seat belt on. Ms. Lusk replied she could not say. This would be left up to the experts that would be brought into the trial. Chairman O’Donnell commented that he had proved his point.

Chairman O’Donnell closed the hearing on S.B. 151, and opened the hearing on Senate Bill (S.B.) 153.

Daryl E. Capurro, Lobbyist, Nevada Motor Transport Association, testified in favor of S.B. 153 and recognized this bill as a "Used Car-Lemon Car Law." He indicated there are problems with on this bill that need to be addressed and the primary sponsor of this bill in the last legislative session was Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8. Mr. Capurro iterated he had talked to Assemblywoman Buckley about this bill during the off session, in regards to its applicability to commercial vehicles. He pointed out Nevada Motor Transport Association asserted this bill does not cover commercial vehicles which are sold and inspected in an entirely different manner than what is done with a family vehicle. He stated S.B. 153 needs to be distinguished by exempting commercial vehicles from this particular inspection and reporting procedure. Mr. Capurro iterated that Assemblywoman Buckley understood the bill and stated she would not like to see it go any further than what was proposed, and remarked some of these changes are from the Legislature Counsel Bureau. Mr. Capurro outlined the provisions under section 2, and said the words and terms used are specific to this section of law, which is the "Used Car or Lemon Car Law." The definition in section 3, "Used vehicle" only applies with respect to that portion, and does not affect any other provision of NRS chapter 482 or the other chapters of law. Section 3, line 8, simply says that "used vehicle" means a vehicle when manufactured was equipped with an odometer; and line 9, "Has a manufacturer’s gross vehicle weight rating of 10,000 pounds or less." Mr. Capurro pointed out that this applies only to those vehicles that meet the criteria are subject to the "Used Car or Lemon Car Law." What this means is that the 10,000 pound break is between light-duty and heavy-duty vehicles. A one-ton pickup is rated at 10,000 pounds. Vehicles over that rating or larger units are usually not in the hands of the average consumer.

Mr. Capurro testified a buyer that purchases a commercial vehicle from a heavy vehicle dealer would take this vehicle back to his own facility and conduct his own inspection and procedures, to evaluate whether or not that vehicle would meet his needs. He reiterated that this bill simply exempts commercial vehicles over 10,000 pound gross vehicle weight from the application of the "Used Car- Lemon Car Law."

Chairman O’Donnell referred to section 3, and related back to NRS 482.3666 and NRS 482.36667 and asked Mr. Capurro whether or not the definition addressed in section 3 only applied to the two statutes. Mr. Capurro answer "Yes" to Chairman O’Donnell’s question and explained that NRS 482.3666 has several different subsections up to NRS 482.36667 and these sections are specifically for the "Used Car-Lemon Car Sale."

Mr. Capurro read and defined section 2, "As used in NRS 482.666 and NRS 482.36667," stating the definition that was adopted is specific to the application in this section of the law and would not impact anything else with regards to the definition of a used vehicle. It relates to what is in section 4, line 12, "NRS 482.132; Except as otherwise provided in section 3 of this act, "used vehicle’ means a vehicle that," and becomes the definition for NRS chapter 482.

Chairman O’Donnell referred to the language on line 14 of page 1, "Has been registered with the department or has been registered with the appropriate agency;" and at this time it says a used vehicle if it has an odometer registering more than 2500 miles, and gross weight of less than 10,000 pounds, then it is a used vehicle. Mr. Capurro clarified the purpose of putting the word "odometer" in this law does not apply to trailers under any circumstances. Chairman O’Donnell stated a vehicle does not have to be registered. It could come off the show room floor with zero miles on it; as long as it is under 10,000 pounds and has an odometer it is a used vehicle. Mr. Capurro responded to Chairman O’Donnell’s inquiry and commented that this language was distinguished in sections 2 and 3 that the definition is specific only to the application of the "Used Car-Lemon Car Law." Mr. Capurro noted when the State of Nevada put this language into codified form in the statute, then section 4 would probably read as section 5. The language was removed because it was the section’s language in the last session, and it explained what the word "drivetrain" meant and the state codified it within NRS 482.3666 and specified it’s section. He said when this bill is codified section 4 would probably say "Except as otherwise provided in NRS 482.3675 of this act used vehicle means." Mr. Capurro concluded the definition is solely with respect to the "Use Car-Lemon Car Law" and does not affect any other part of chapters 482, 484, or 706 of NRS.

Senator Shaffer queried Mr. Capurro if a car has 2,000 miles is it considered a new car. Mr. Capurro said this is spelled out in current language that is a part of section 4 and it would not change. He indicated that this language changes any safety laws, safety regulations, or inspection procedures that are contained in any other section of this law and would continue to be subject to all safety rules and regulations, both federal and state, and does not impact this bill whatsoever.

Chairman O’Donnell interpreted the reason for S.B. 153 by saying this bill is for the heavy-duty vehicles (18-wheel trucks) that travel on the highways and accumulate quite a few miles. He said that trucks comply to the "Lemon Law" because of the 75,000 mile limitation. In 3 or 4 months these trucks can travel as much as 75,000 miles, and some trucks accumulate 500,000 miles.

Chairman O’Donnell closed the hearing on S.B. 153.

Chairman O’Donnell announced to the committee that there are three or four bill draft requests which need to be drafted. He called upon John P. Sande III, Lobbyist, to explain the need for his bill draft request (BDR).

Mr. Sande spoke on behalf of Bob Broadbrent and Joseph W. Brown, a law firm that represents taxicabs in Clark County. He iterated how the Taxicab Authority (TA) had considered a merger with the Transportation Services Administration (TSA). Mr. Sande referred to Bill Draft Request (BDR) 58-650 and acknowledged it had been withdrawn. He asked the committee if this BDR could be revived.

*****

SENATOR WASHINGTON MOVED TO INTRODUCE BDR 58-1607.

SENATOR AMODEI SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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SENATOR WASHINGTON MOVED TO INTRODUCE BDR 58-1608.

SENATOR WIENER SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

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SENATOR SHAFFER MOVED TO INTRODUCE BDR 58-1102.

SENATOR WASHINGTON SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

*****

Chairman O’Donnell adjourned the meeting at 3:00 p.m.

RESPECTFULLY SUBMITTED:

Joan Moseid,

Committee Secretary

APPROVED BY:

Senator William R. O'Donnell, Chairman

DATE: