Legislature(2003 - 2004)
04/28/2003 02:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 245 - SUITS & CLAIMS: MILITARY/FIRE/DEFENSE Number 1424 CHAIR McGUIRE announced that the next order of business would be 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." [Before the committee was CSHB 245(MLV).] Number 1401 GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation Section, Civil Division (Anchorage), Department of Law (DOL), relayed that HB 245 provides tort liability protection for emergency workers in a variety of areas. She referred to a handout in members' packets, a "bullet sheet" that reviews HB 245. MS. VOIGTLANDER turned attention to [Section 2 of the bill], and said that the first area in which HB 245 provides immunity from tort lawsuits is that of search and rescue; this immunity would be for state and local government and their employees. Annually, there are approximately 400 "search and rescues" conducted in Alaska in a variety of circumstances, many of which are severe and life threatening, both to the people who are being searched for and for those doing the searching. The Division of Alaska State Troopers (AST) calls for those searches and then relies upon a number of state and local resources to help conduct the "search and rescues." The immunity granted in Section 2 would allow state and local agencies to make decisions based upon both the information at the time and the safety- related circumstances that searchers might be subject to. MS. VOIGTLANDER indicated that the next area in which HB 245 provides immunity relates to intra-military tort claims. Those provisions of the bill would bar tort action for damages against the state and its employees by service members. She said that there was a recent Alaska Supreme Court decision that basically went a different direction from all but two of the "reported states and the federal government," which do provide such intra- military tort immunity. She predicted that [these provisions of the bill] would not affect any service member's entitlement to, or rights to, benefits under either state worker's compensation, if they are on state-duty orders, or federal compensation, if they are on federal-duty orders. MS. VOIGTLANDER said that these provisions would make Alaska consistent with the majority of states that follow both the Feres doctrine and the "federal doctrine." The policy behind the federal doctrine, she explained, is to avoid civilian courts going in and "Monday-morning quarterbacking" the decisions that were made in military operations. In Alaska, a variety of military operations occur; most involve federal orders and the Alaska National Guard responding to federal orders, but occasionally there are also times when the governor calls them out in active state service under Title 26. Number 1195 MS. VOIGTLANDER offered that [these provisions] of HB 245 would also immunize the state from lawsuits that arise out of such military maneuvers unless there was, in fact, a "state call out" by the governor. [These provisions] of HB 245 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. She reiterated that a person's entitlement to worker's compensation benefits are not affected. MS. VOIGTLANDER said that the next area of immunity addressed by HB 245 relates to civil defense and homeland security. Since [the terrorist attacks of September 11, 2001 ("9/11")], the need for homeland security and civil defense have shifted somewhat. The existing statutes in Title 26 reflect the concept of civil defense which existed prior to 9/11. [Sections 7-11] of HB 245 would bar tort claims against the government, employees, and authorized volunteers for damages that are sustained by a homeland security worker. However, a homeland security worker's or an authorized volunteer's rights to worker's compensation benefits remain. These sections simply create a bar to tort claims. She noted that those receiving worker's compensation are already barred from filing a tort lawsuit arising out of the same injury. MS. VOIGTLANDER pointed out that Sections 7-11 also bar third- party tort claims against the government, employees, and authorized volunteers for damages sustained within the scope of civil defense or homeland security, unless the person who was injured can demonstrate, by clear and convincing evidence, that the actions were taken with reckless indifference or were malicious in nature. She added: "The ... limited exemption that is available in the civil defense and homeland security [provisions] attempt to track an exemption in existing law under that same title; that does provide some liability exposure, but under very limited circumstances." MS. VOIGTLANDER said that the final area of immunity addressed by HB 245 involves fire management and firefighting activities. Section 12 and 13 would bar tort claims by third parties against the state, local governments, or other firefighting groups and their employees. Every year, the Division of Forestry [Department of Natural Resources] is called upon to respond to 600-700 fires throughout Alaska. In the past, she remarked, lawsuits were not brought against the Division of Forestry in terms of how fires were fought. However, in two rulings by the Alaska Supreme Court, it has been held that the state may be sued for firefighting activity. This departs from many jurisdictions in the West, as well as from federal jurisdictions which find that firefighting activities are immune activities for which the government should not be sued for damages in tort. Number 0967 MS. VOIGTLANDER said that the litigation the Division of Forestry anticipates as a result of the Alaska Supreme Court decision will disrupt its activities, and cause it to call firefighters in off the line in order that they be available for civil litigation, hearings, testimony, and trials. In addition to being a disruption, [being available for such activities] will be quite expensive for the agency, she predicted. MS. VOIGTLANDER noted that these provisions of HB 245 are consistent with both federal [law] and common law in many other jurisdictions that immunize [firefighting] activities, either through case law or through statute. She offered that Sections 12 and 13 would not affect a person's existing entitlement to worker's compensation benefits, or to federal or state disaster- relief benefits. She noted that because the Division of Forestry's firefighting and fire management activities are addressed in two chapters in statute, both Section 12 and Section 13 are necessary to effect the desired change. MS. VOIGTLANDER said in conclusion that although HB 245 deals with four different topics, what they have in common are "methods in order to allow the state, it's employees, and those other governmental employees and volunteers who conduct various types of emergency relief to be immune from tort claims." She indicated that she would be available for questions whenever HB 245 is next heard. CHAIR McGUIRE announced that HB 245 would be held over.
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