Legislature(2003 - 2004)

05/08/2003 02:16 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ 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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