Legislature(2003 - 2004)
05/08/2003 02:16 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 245
An Act relating to certain suits and claims by members
of the military services or regarding acts or omissions
of the organized militia; relating to liability arising
out of certain search and rescue, civil defense,
homeland security, and fire management and firefighting
activities; and providing for an effective date.
GAIL VOIGTLANDER, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, introduced
CS HB 245 (JUD). The legislation will provide protection
from tort lawsuits in four areas of governmental activity.
The first is in the area of search and rescue:
· Immunity from tort lawsuits for State and local
government and their employees. She noted that
there are approximately 400 search and rescues
conducted each year in Alaska.
· The Alaska State Troopers coordinate search and
rescue activities using State and community
resources.
· That provision is addressed in Section 2 of the
bill.
The second area of governmental activity is in intra-
military Tort Claims:
· Bars tort actions for damages against the State
and its employees by service members - there is no
change to the entitlement to State workers
compensation when on State duty and federal
benefits when on federal duty.
· Provides the State and its military personnel the
same protection from tort lawsuits that the
federal government and federal military personnel
have under the Feres Doctrine and is consistent
with the vast majority of states. The provisions
are found in Sections 4 - 6 of the bill.
· Acts of the organized militia unless the acts were
in the line of duty while on active State service
under AS 26.05.070. That provision is found in
Section 3 of the bill.
Both of those provisions recognize that the federal
government and not the State of Alaska, is responsible for
injuries and claims while service members are under federal
command and control.
The third area of governmental activity would be the
protection in Civil Defense:
· Bars tort claims against the government, employees
and authorized volunteers for damages sustained by
a civilian defense worker, and do not affect the
worker's or authorized volunteer's rights to State
workers compensation.
· Bars third party tort claims against the
government, employees, and authorized volunteers
for damages unless malice or reckless indifference
is shown by clear and convincing evidence.
· These provisions are found in Sections 7 - 10 of
the bill.
The final area of protection is the Fire Management and Fire
Fighting Activities:
· Amends two statutory sections to bar tort claims
by third parties against the State, local
government, other firefighting groups and their
employees.
· Every year the State Division of Forestry is
called upon to respond to hundreds of fires
throughout the State of Alaska. The change is
necessary due to two Alaska Supreme Court cases
holding that the State may be sued for
firefighting activities.
· Litigation disrupts Forestry's day-to-day
operations and diverts substantial State resources
to defend lawsuits. That provision is consistent
with federal and common law practices in other
jurisdictions that immunize those activities. The
provision does not affect existing entitlement to
workers compensation or the availability of
federal or state disaster relief benefits.
Representative Kerttula asked what the military would be
able to sue for and what could the volunteers sue for.
Ms. Voigtlander explained that military would not be able to
sue under the tort case. They would be able to receive
worker's compensation either through the State or through
the federal government. The legislation avoids someone
under federal orders and would be interpreted that military
members could not sue the State for injuries to themselves.
Ms. Voigtlander addressed the types of claims that
volunteers could have. Representative Kerttula referenced
Page 4, Lines 3-13, the defense activity. Ms. Voigtlander
advised that was the civil defense portion of the bill. A
civil defense worker would be covered by worker's
compensation if they were an employee. Above and beyond
that, there is a pre-existing statute that provides worker's
compensation benefits to authorized volunteers if they are
not otherwise on some worker's compensation role. The
legislation bars a tort lawsuit by a volunteer civil defense
worker and it would not affect any person's entitlement to
worker's compensation.
Representative Kerttula questioned the exception of "malice
and reckless indifference" would allow. Ms. Voigtlander
responded that would allow a lawsuit against the government
or a government employee arising out of civil defense
activities. Representative Kerttula commented that would be
the plaintiff suing the government not the volunteer suing
back. Ms. Voigtlander said that was correct.
Representative Kerttula asked if there was any avenue left
for a volunteer in any type of tort against the government.
Ms. Voigtlander replied that the only area left for tort
lawsuits would be if a third party was injured because of an
act of the organized militia and that militia was serving on
State orders. Then that claim would be allowed, as opposed
to the person acting under federal orders. Regarding civil
defense, the only area would be a third party liability. If
that exception was shown for fire fighting and fire
management activities, the legislation would bar all claims
and there would be no exception.
Co-Chair Harris referenced a National Guard case, which sued
the State for a plane that crashed. Ms. Voigtlander advised
that case involved a federal plane piloted by a federal
pilot and that there was a lawsuit filed against the State.
Representative Stoltze referenced Page 5, Lines 3 & 4,
language regarding vaccinations. Ms. Voigtlander noted that
vaccinations are voluntary. For those that volunteer for
the vaccinations as part of their job, they would be covered
through worker's compensation. There is medication to cover
those that develop a bad reaction to a vaccination. Ms.
Voigtlander reiterated that all vaccinations have been on a
voluntary basis. Representative Stoltze inquired if they
had been involuntary in the past. Ms. Voigtlander did not
know.
Representative Stoltze inquired if there would be an
objection to adding an amendment to reference voluntary
vaccinations.
Co-Chair Williams pointed out that language currently exists
in federal law. In response to Representative Stoltze, Ms.
Voigtlander admitted that she did not know that much about
the State's Public Health Program and crisis scenarios. .
Representative Stoltze stated that he would pursue this
concern at a later date.
Representative Foster stated that it was not an option to
get the shots when he was in the military. Co-Chair Harris
agreed that the shots are not voluntary.
DEAN BROWN, (TESTIFIED VIA TELECONFERENCE), DEPUTY STATE
FORESTER, DIVISION OF FORESTRY, DEPARTMENT OF NATURAL
RESOURCES, NOME, voiced how important the legislation is to
the fire-fighting in the State. The Division of Forestry
has the responsibility for all fire fighting in Alaska. Ms.
Brown pointed out that they fight between 500-700 fires each
year and that nearly 86% of those fires are human caused.
Ms. Brown emphasized the importance of safety concerns and
indicated that the bill not only addresses liability for
local fire fighters but for the State fire crews. The
legislation provides the State the same benefits enjoyed by
the federal sector for tort immunity.
Representative Foster MOVED to report CS HB 245 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS HB 245 (JUD) was reported out of Committee with a "do
pass" recommendation and with zero note #1 by the Department
of Law, zero note #2 by the Department of Natural Resources
and indeterminate fiscal note #3 by the Department of
Administration.
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