Legislature(2003 - 2004)
05/18/2003 01:03 PM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR HOUSE BILL NO. 245(JUD)(efd fld)
"An Act relating to certain suits and claims by members of the
military services; relating to certain suits and claims
regarding acts or omissions of the organized militia; relating
to workers' compensation and death benefits for members of the
organized militia; relating to liability arising out of
certain search and rescue, civil defense, fire management, and
fire fighting activities."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this bill, sponsored by the House Rules
Committee at the request of the Governor, "limits civil actions
arising out of claims and suits by members of the military service,
organized militia and firefighters. The State's self-insurance
program for tort liability exposures will be favorably affected by
this legislation."
GAIL VOIGHTLANDER, Assistant Attorney General, Department of Law,
testified via teleconference from an off net location in Anchorage
that this bill addresses liability for State and local governments
and State and local government employees and volunteers who provide
"important emergency services."
Ms. Voightlander noted that State and local governments provide
four different areas of emergency response, one being search and
rescue. She informed that the Alaska State Troopers perform
approximately 400 search and rescue operations annually. She
emphasized this bill would provide immunity to the Troopers and
other State and local employees and volunteers involved in these
activities.
Ms. Voightlander assured this legislation and the immunity it would
provide, is consistent with Alaska Supreme Court case law regarding
liability of public safety workers, and she listed examples. She
stated this bill extends the provisions of public safety workers to
include search and rescue operations in granting immunity against
civil liabilities for negligent actions during an investigation.
Ms. Voigtlander furthered that this bill also addresses "intra-
military tort" and would clarify "what was muddied in an Alaska
Supreme Court case in 2001" called Himsel versus the State of
Alaska. She expressed that confusion had long existed as to the
"various hats ? the Alaska National Guard might wear in any given
occasion," and opined that this case further "blurred the
distinction" as well created uncertainty regarding the responsible
party defending against claims made arising from National Guard
activities. She stated that this legislation provides that members
of the Alaska National Guard, if injured while operating under
State orders, would be covered under the State's workers
compensation program, and if injured while operating under federal
orders, would be provided workers compensation and other benefits
by the federal government. She pointed out that members of the
Alaska National Guard mostly operate under federal orders.
Ms. Voightlander continued that the Himsel vs. State decision also
resulting in the allowance of the military to "sue one another" for
civil damages. She reported that all but two other jurisdictions in
the U.S. follow the Feres Doctrine, which determines that it is
poor public policy to allow members of the military to sue
officers, fellow military members and employers for military
activities. She remarked that to allow an individual to give an
order, yet hold that individual liable for civil actions as a
result of giving that order is detrimental to the military command
structure. She also remarked that public policy should not allow
civilian courts to interject with military operations and orders.
She stated this legislation would reestablish the Feres Doctrine in
Alaska.
Ms. Voightlander stressed this portion of the legislation is not a
"change", but rather is in response of the Himsel vs. State ruling.
She informed that the Feres Doctrine had been the "long standing
rule" and that no lawsuits had been filed against the State due to
the awareness of the Doctrine and the understanding that it applied
to Alaska. She pointed out that the National Guard is comprised of
both State and federal employees "providing services under a
variety of orders".
Ms. Voightlander listed the third subject of this legislation as
civil defense. She referenced Title 26. Immunity for Civil Defense
Activities., in Alaska State Statue, and stated this bill would
"continue" that immunity, although it provides "slightly higher
standards for the one exception when lawsuits are allowed in the
area of civil defense. She noted that civil defense activities in
Alaska are primarily responses to natural disasters, including
earthquakes and floods. She said these events normally involve
State and local governments and employees and volunteers. She
stated that this provision of the bill would "immunize" not only
the governments, but also the employees and volunteers providing
"vital emergency services."
Ms. Voightlander concluded with the provisions for firefighting
activities contained in this legislation. She informed that it had
been understood that the State could not be sued for these
activities; however, the Alaska Supreme Court in 2001 ruled in two
cases relating to the Miller's Reach Fire, that the State could be
sued for "certain aspects of firefighting activities". This bill,
she stressed, would provide immunity to State and local
"responders" and to volunteers, "all who conduct firefighting
operations in the State of Alaska", to allow them to perform
emergency responses. She surmised this would permit those personnel
to make emergency decisions without the threat of lawsuits filed
against themselves individually or their employers.
Ms. Voightlander pointed out that workers and volunteers defending
themselves against a lawsuit are subsequently unavailable for
public safety activities during times of court appearances, and
related appointments.
Ms. Voightlander informed that the State and federal employees and
volunteers, are covered by workers' compensation insurance in the
event they are injured during the performance of their duties. She
noted workers' compensation is a "no-fault system" in which
attorneys are not necessary for an injured employee to assert
rights and to receive compensation.
Ms. Voightlander stated this legislation would bring Alaska into
compliance with other Western states and the U.S. Ninth Circuit
Court of Appeals rulings that holds that firefighting activities
are immune.
Senator Taylor asked about the plaintiff in Himsel vs. State why
the suit was brought.
Ms. Voightlander shared that Major General Kenneth Himsel served in
the Indiana National Guard and was stationed in Alaska. She said
the lawsuit arose from a plane crash near Juneau of a federal plane
piloted by a member of the federal National Guard transporting
several members of the Alaska National Guard who were in Active
Guard Reserve (AGR) status, in which there were no survivors. She
explained this status was categorized as a federal status in which
members received federal benefits and in this instance the spouses
and dependent children did receive benefits from the federal
government following the crash. This lawsuit, she stated, argued
whether the mission was State or federal, and the Alaska Supreme
Court, in rejecting the Feres Doctrine of whether injuries arose as
a result of military service, substituted a "new test" the
"uniquely military test." She updated that this lawsuit was settled
for $7.5 million with the State portion of that amount $2.75
million and the remainder paid by insurance the State no longer
carries.
Senator Taylor asked about the other passengers on that flight.
Ms. Voightlander indicated that General Carrol [spelling not
specified] was on that plane and was the only individual involved
who was "clearly a State employee" and therefore his estate was not
included in the lawsuit. She was unaware whether the General's
spouse wanted to participate in the suit, but noted that the
acceptance of State workers compensation benefits precluded such
actions.
Senator Taylor asked if the other passengers were members of the
military.
Ms. Voightlander affirmed and reiterated that Major General Kenneth
Himsel was a member of the Indiana National Guard, the pilot was
considered a federal employee and the co-pilot and other
passengers, excluding General Carrol, were members of the Alaska
National Guard in AGR status. She stated that receipt of federal
benefits prohibited the estates from recovering from the federal
government, although it did not bar them from pursuing remedy
against the State of Alaska. She noted such attempts would be
barred under the Feres Doctrine.
Senator Taylor asked how the State was ruled liable for an event
involving a federal plane piloted by a federal employee.
Ms. Voightlander replied that the Alaska Supreme Court ruled on the
question as to whether the mission was federal or State and whether
the pilot was a "borrowed servant" from the federal government,
necessitating that the State be liable for the pilot's actions.
Senator Taylor and Ms. Voightlander continued to discuss the merits
of this case with Ms. Voightlander summarizing that the State
decided to settle the case following the initial trial court ruling
and after analyzing the strengths and weaknesses and the probable
cost of extended litigation. She addressed Senator Taylor's concern
that the matter was never decided by the Alaska Supreme Court, by
emphasizing that because the Feres Doctrine was dismissed, its
provisions were invalid and subsequently the State was not immune.
Senator Taylor next addressed Section 2 relating to civil immunity,
which stipulates that "a person may not bring a civil action for
damages against the State political subdivision?[for the] results
of an action or a mission for performing or failing to perform
activities or duties authorized" under AS 18.60.120 through 175. He
asked for a summary of these statutes.
Ms. Voightlander responded that these statutes relate to search and
rescue operations, and stipulate the funding and authorized
participation in those activities.
Senator Taylor asked if this provision would grant immunity to
Alaska State Troopers, and other State and local government
employees.
Ms. Voightlander affirmed this would apply to all parities
participating in search and rescue operations including volunteers
and agents.
Senator Taylor clarified this legislation would provide blanket
immunity for all related activities regardless of recklessness or
gross negligence.
Ms. Voightlander affirmed there would be no exemptions.
Senator Taylor asked if this portion of the legislation was
precipitated as a result of the lawsuit relating to the death of an
elderly couple and their grandchild, and the Alaska State Troopers
failure to conduct a search and rescue operation for those stranded
travelers.
Ms. Voightlander answered that a couple of lawsuits have been filed
against the State on this matter, including the situation Senator
Taylor indicated that involved a family traveling on the Denali
Highway after it had been closed for the winter. She stated this
trial resulted in a judgment against the State. She qualified that
family members reported that the travelers were located in the
Kenai area and search and rescue operations were conducted in that
area. She said it was only later learned that the travelers could
be on the Denali Highway, at which time weather conditions were 45
degrees below zero.
Senator Taylor asked the judgment rendered against the State.
Ms. Voightlander told of the rulings and appeals process of this
case.
SFC 03 # 102, Side B 07:23 PM
Ms. Voightlander continued that if the State does not ultimately
prevail, the total judgment would be over $7 million incorporating
the findings that the State shared 50 percent of fault and the
travelers' negligence contributed 49 percent of fault.
Senator Taylor surmised that as a result of this lawsuit, blanket
immunity would be granted, regardless of whether State employees
act negligently, recklessly, grossly negligently or intentionally.
Ms. Voightlander again affirmed. She noted that in addition to this
case, another lawsuit was filed against the State that involved
decisions about whether to instigate a search and rescue operation
from one village or another village, and in which manner the
operation should proceed.
Senator Taylor asked the result of that suit.
Ms. Voightlander responded that a settlement was reached in this
case.
Senator Taylor asked if therefore the State admitted wrongdoing.
Ms. Voightlander explained that in any civil litigation, weight is
given to possible verdicts, potential damages that could be awarded
and appeal costs. She stressed that settlements do not include
admission of liability.
Senator Taylor asked the settlement amount.
Ms. Voightlander answered approximately $250,000.
Senator Taylor again spoke to negligence or gross misconduct of a
State employee resulting in damage to another party that would not
be subject to civil actions.
Ms. Voightlander emphasized this legislation "represents an
enunciation of public policy" that allows parties involved in
search and rescue operations to make the best decisions at the time
for the safety of workers and those being rescued, without concern
for possible civil liability actions.
Senator Taylor noted the absence of language in this Section
specifying immunity would apply to volunteers. He identified
"public employees who are salaried and paid by the State or a
political subdivision" and therefore argued, "it's a nice emotional
argument" to suggest "some poor volunteer might get sued"; however,
the provisions only applies to "our employees doing negligent acts
that cause damage or death."
Ms. Voightlander corrected that volunteers "covered under the
agents principal" and are considered agents of the State.
Senator Taylor asked if volunteers were sued in the two
aforementioned cases.
Ms. Voightlander answered no.
Senator Taylor directed attention to Section 7, which specifies
employees and authorized volunteers and includes an exception from
immunity for malicious actions or reckless indifference to the
rights of others or safety of others. He asked why this language is
not included in Section 2.
Ms. Voightlander replied that this section amends existing statutes
and adds a "clear and convincing" standard. She informed that the
exceptions are not included in other sections of the bill due to
the high cost of defense against lawsuits. She emphasized the
intent of this bill is to not distract from search and rescue
activities.
Senator Taylor next surmised that the language relating to civil
defense in Sections 8 and 9 mirrors federal language relating to
homeland security, specifically in granting civil immunity to those
administering vaccinations.
Ms. Voightlander replied that Section 9 provides immunity for the
activity of administering vaccinations; however she pointed out
that existing programs provide funds for people injured as a result
of adverse reactions to vaccinations.
Senator Taylor understood such programs exist to provide relief
from adverse reactions resulting from specific vaccinations,
although this legislation would apply to all vaccinations. He
opined that statistically all vaccination programs would result in
an adverse reaction to some recipients.
Co-Chair Green referenced the definition of "civil defense"
provided in Section 9 amending AS 26.20.200(1) on page 4, line 31,
through page 5, lines 1 9 as follows.
(1) "civil defense" means the protection and defense
of the civilian population by the organized efforts of the
residents of the state other than those in the military
service, and includes without limitation, fire fighting,
policing, rescue, air raid warning, security, communications,
medical service, vaccination and other actions to protect
public health, transportation, evacuation of persons, welfare
aid, guard duty, anti-espionage and anti-sabotage service,
construction of temporary housing and bomb proof shelters,
[AND] any other service necessary for the protection of and
aid to the public not normally furnished by the military
services, and training, preparation, travel, and other
activities necessary for the provision of the services
described in this paragraph;
New Text Underlined [DELETED TEXT BRACKETED]
Co-Chair Green understood this language clarifies that the immunity
would not apply to all vaccinations, but rather those administered
for the purpose of civil defense.
Senator Taylor surmised Co-Chair Green's assertion to be correct,
although the language is "quite broad" in the parties included.
Senator Taylor then asked if this legislation would prevent parties
from filing suit against the State for incidences similar to those
arising from the Millers Reach fire. He opined that the system
operated correctly in this instance, as well as all such instances,
in that the case was brought and the court ruled that the State was
not at fault. He asked the reason to amend the existing provisions.
Ms. Voightlander indicated this legislation addresses the matter in
Sections 11 and 12 related to firefighting activities. She asserted
this legislation is necessary to affirm public policy factors. She
informed that the cost of this litigation is high, in that these
activities remove employees from their regular jobs to defend
against civil litigation, in addition to defense costs. She listed
the legal expenses of the Millers Reach Fire litigation at $2.5
million to date. She reiterated that this legislation would hold
Alaska consistent with other Western states and with case law that
holds firefighters immune. She expressed that response to emergency
situation requires discretion and judgment decisions.
Senator Taylor asked whether property owner could seek damages in
the event of a disaster when gross negligence of State employees
could be demonstrated.
Ms. Voightlander responded that property owners would be unable to
sue for damages.
Senator Taylor clarified that no exceptions would be allowed for
instances of gross negligence, reckless disregard of human life,
and intentional conduct.
Ms. Voightlander affirmed. She qualified that if an employee or
agent's actions "rise to the level of violating a federally
guaranteed constitutional right" the individual has the "remedy of
filing either in federal or State court under 42 USC Section 1983".
Senator Taylor noted the aforementioned federal statute pertains to
civil rights. He asked if the intent of Sections 11 and 12 is to
allow parties to seek damages under civil rights laws.
Ms. Voightlander responded that these sections would immunize the
State and local governments and employees in fire fighting
activities. She pointed out that the existing AS 09.65.070 provides
immunity to local firefighters.
Senator Taylor asked if any conditions or exceptions are provided
in the aforementioned statute relating to local firefighters.
Ms. Voightlander answered no.
Co-Chair Wilken asked if the witness recognizes a need for
qualifiers in event of gross negligence, such as exampled by
Senator Taylor.
Ms. Voightlander responded that providing exceptions and
qualifiers, requires the State to incur defense expenses even if
successful against lawsuits. She informed that Alaska law provides
that a civil trial could be decided summarily without a trial only
if "no genuine issues of material fact" are demonstrated. She
stated that the standards for summary judgment are set "very high
in Alaska" and that cases are increasingly "having to go to trial".
She furthered that case law provides that "even when people agree
that there is not a fact issue," different jurors "may have
different views as to the inferences to derive from those facts."
DEAN BROWN, Deputy Director, Division of Forestry, Department of
Natural Resources testified via teleconference from an off net
location about the impact this legislation would have on forestry
operations. She pointed out the major function of the Division
relates to wildland fire fighting. She spoke to increasing wildland
urban interface concerns as more people move into wooded areas, and
she noted that during a fire season, approximately 86 percent of
fires are human caused. During the spring season, she furthered,
virtually 100 percent are human caused and are located primarily in
the main roaded area of the State and remarked that the number of
springtime fires is increasing and occurring earlier in the year.
Ms. Brown expressed concern over the impact that litigation has on
firefighters, who are typically seasonal workers for three to five
months annually and are trained to national standards. She stated
these firefighters make critical life and death decisions involving
fires varying from minor campfires to major fires. She stressed the
importance that "their mind be 100 percent on that job" without
concern for the consequences of actions taken in the performance of
duties.
Ms. Brown told of employees fighting fires in the Mat-Su area that
occurred during windstorms in February 2003. She informed that many
of these firefighters fought fires in the evenings and until 5:30
am and then appeared in court at 8:00 am for daylong proceedings
related to the Millers Reach Fire lawsuit.
Ms. Brown also pointed out that federally employed fire fighters
are immune from civil litigation and that in many instances State,
federal and locally employed fire fighters are involved in the same
operations. She reiterated the U.S. Ninth Circuit Court of Appeals
verdict upholding the immunity of government public safety
employees.
Co-Chair Wilken gave a hypothetical situation of firefighter under
the influence of drugs, responding to an emergency call and hitting
a child with a fire truck, killing the child. He asked if that
firefighter would not be held liable in this instance based on the
decision to use drugs "on the job.
Mr. Brown informed that the Department has a "strict" policy
against alcohol and drug use and employment of the hypothetical
firefighter would be "terminated immediately."
Co-Chair Wilken commented this would not "bring the child back".
Senator Taylor noted that Sections 11 and 12 relating to "fires
authorized to be preformed" cite different statutes: AS 41.15.010
and AS 41.17.080. He asked why two "identical immunity provisions"
are necessary.
Ms. Voightlander replied that AS 41.15, cited in Section 11,
relates to forests and provides to firefighting activities, and AS
41.17, cited in Section 12, relates to administration and
management. She explained that under both chapters, the Division of
Forestry is authorized to conduct firefighting activities.
Senator Taylor understood general State policy on liability,
exampling that the Legislature could not be sued for its decisions,
and the Department of Transportation and Public Facilities could
not be sued for decisions made regarding the location of a highway,
as those decisions are considered discretionary. However, he noted
that the Department of Transportation and Public Facilities could
be held liable for administrative actions, such as failure to
safely maintain roadways or otherwise warn the public of the
dangers. He surmised that a threshold exists in which the State
becomes liable for its actions. He asked for clarification of the
activities for which the State could be sued.
Ms. Voightlander agreed with Senator Taylor's assertion that AS
950.250 stipulates that discretionary decisions are not subject to
liable, although once decisions are made the State could be sued
for the manner in which activities are conducted.
Senator Taylor indicated he has many other questions.
Co-Chair Wilken asked the witness to reply to the scenario he
earlier posed involving a firefighter under the influence of drugs.
Ms. Voightlander responded that under existing law AS 965.070, "an
action for damages could not be made against an employee or member
a fire department if the claim is for a tort and is based upon the
act or admission of the member of the fire department in the
execution of a function for which the department is established."
Therefore, she stated that an injured party would be barred from
filing suit in the aforementioned instance.
Senator Olson asked, as a matter of public policy, how the State
provides adequate oversight to ensure quality search and rescue
operations.
Co-Chair Wilken requested the question be held.
Co-Chair Wilken ordered the bill HELD in Committee.
AT EASE 7:56 PM / 7:57 PM
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