Legislature(2003 - 2004)
04/15/2003 03:12 PM House MLV
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* first hearing in first committee of referral
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HB 245-SUITS & CLAIMS: MILITARY/FIRE/DEFENSE Number 0111 CHAIR LYNN announced that the first 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." [HB 245 was sponsored by the House Rules Standing Committee by request of the governor.] Number 0134 REPRESENTATIVE MASEK moved to adopt the proposed committee substitute (CS), Version 23-GH1025\D, as a work draft. CHAIR LYNN announced that Version D was adopted without objection. Number 0210 GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation Section, Civil Division (Anchorage), Department of Law, presented HB 245 to the committee. She explained that it discusses four areas of immunity for the state. The first is to immunize search and rescue (SAR) activities conducted by the Alaska State Troopers, which conducts approximately 400 of those a year. This bill immunizes the Alaska State Troopers for both the decision about when or if to commence a SAR activity and how the activity is conducted. Ms. Voigtlander said it is consistent with Alaska case law that immunizes negligent investigation by the Alaska State Troopers or other police agencies. Number 0350 MS. VOIGTLANDER told members the second area relates to tort claims by members of the Alaska National Guard and other military members of the state militia. The bill adopts what is known as the Feres doctrine. Taken from the name of a plaintiff in a [U.S. Supreme Court case] and adopted by the federal government and many states, the Feres doctrine says there cannot be intramilitary torts between members of the military; for example, a private cannot sue his sergeant in tort for an injury sustained that is incident to military service. Thus the bill puts into law that the Feres doctrine is applicable to bar claims against the state. MS. VOIGTLANDER asserted that those military members aren't left without remedies. A member on active state duty and carrying active state orders who is injured has workers' compensation under the state. A member serving under federal orders - which is the majority of the time - who is injured pursuant to those orders has federal remedies that are the equivalent of workers' compensation as well. Number 0482 MS. VOIGTLANDER went on to say that this bill overrides Himsel, a lawsuit filed as a result of an air crash outside of Juneau some years ago; the parties included families of National Guard members. She explained: In that case, we won at the trial court level. It was reversed on appeal, and our supreme court said that they would not apply the Feres doctrine; they would look to see whether ... what the action involved was uniquely military and say, if it's not uniquely military, they will allow the claim. Under the Feres doctrine, the test is "incident to military service." That opinion was a 3-2 opinion. ... The two justices who dissented pointed out that the Feres doctrine is founded on sound public policy, which is that the courts should not involve themselves in second- guessing military decisions, and also that it was poor for military morale to allow intramilitary tort suits. The dissent also went on to explain that that test of discarding the "incident to military service" test in favor of what our supreme court was saying, ... whether it was uniquely military, was going to be very difficult to interpret; it was not a bright line. And so this section of the bill would deal with that issue and bring Alaska back to the Feres doctrine concept, which is, if you are injured, you have your workers' [compensation] remedy. MS. VOIGTLANDER, noting that Himsel settled after it was remanded for trial, commented, "It will be appearing in the capital budget later this session, and the state's share of that judgment is $2.75 million." Number 0678 MS. VOIGTLANDER reported that the third portion of the bill relates to suits and claims arising from civil defense and homeland security. Noting that currently Title 26 provides immunity for civil defense, she offered her reading that "civil defense" appears to have become a somewhat archaic term. Since [the terrorist attacks of September 11, 2001] Alaska and other states have moved into the "homeland defense" and "emergency management" areas, for which the bill therefore extends immunity. She told members that the original civil defense statute has an exception to provide for certain claims, and said an exception has been carried over in this portion of the bill. Number 0775 MS. VOIGTLANDER turned attention to the state's duties and obligations. She said she'd been told that after September 11, 2001, because of the related activities that must be conducted in addition to emergency management, the federal government cannot do everything and thus states are picking up more [of these responsibilities]. She went on to say the federal government was immune when it did activities; this is to carry that [policy] over now that the state is picking up what used to be considered civil defense but now has been expanded into homeland defense. Number 0826 MS. VOIGTLANDER told members the last portion of the bill deals with suits arising from fire management and firefighting activities; it would immunize "the state and employees and others who work on these firefighting activities" from lawsuits. She referred to Angnabooguk and a companion case, Bartek, noting that the Alaska Supreme Court ruled in 2001 that while many activities the state conducts in firefighting may be "immune decisions," there may be decisions that aren't immune and thus lawsuits can be filed. MS. VOIGTLANDER said this [portion of the bill] is to immunize that activity "to help conserve the resources of firefighting so the firefighters are on the line fighting fires and doing fire management and forest protection, rather than being pulled off into civil litigation, which is very time-consuming for them as well." Noting that AS 09.65.070 has immunity for municipal firefighters, she said this would be consistent with "looking at the fact that you need to have these people available to fight fire, rather than defending civil lawsuits." She added, "Also, it is to be more consistent with 9th Circuit [Court of Appeals] law and general federal law, which immunizes firefighting activities as well. Several other states as well immunize firefighting activities." Number 0970 REPRESENTATIVE MASEK referred to page 6, lines 8-13, and asked how the bill would impact the current lawsuit over the Miller's Reach fire of 1996. MS. VOIGTLANDER specified that this bill wouldn't have retroactive effect and wouldn't apply to the pending case. It would only have prospective effect for future claims that might occur after the effective date of the legislation. Number 1052 REPRESENTATIVE FATE referred to proposed language on page 3, lines 22-25, which read: A person is not entitled to death benefits as specified in AS 23.30.215 for a member of the organized militia who dies as a result of an injury or disability suffered in the line of duty but who had not been ordered into active state service by the governor under AS 26.05.070. REPRESENTATIVE FATE posed a scenario in which a lieutenant orders a private to do something that results in severe injury or death for the private. That person would be acting in the line of duty? If the governor hadn't ordered that unit into state service, he asked, would the state be waived from liability for the person who died as a result of a direct order in the line of duty. Number 1162 MS. VOIGTLANDER said she believed the provision referred to is "the homeland security," but that she would answer in regard to the Alaska National Guard because she believed that was what Representative Fate's question addressed. She said: People who are serving in the Alaska ... militia or the Alaska National Guard are going to be responding either to a state call-out and have state orders, or a federal call-out and have federal orders. So if they are injured incident to duty because they're on that call-out, then if it's a state order they will have state workers' compensation remedies; if ... they're carrying federal orders, they have federal workers' compensation benefits. Number 1223 REPRESENTATIVE FATE pointed out that it just says "organized militia". He then referred to page 5 [lines 7-8], which adds the language "vaccination and other actions to protect public health" under "civil defense". He posed a situation in which a response to a vaccination results in death because of not knowing the person's history to the extent of knowing there was an allergy. He asked whether liability would be waived in that instance. MS. VOIGTLANDER said that provision is under the homeland security provisions, under which the person wouldn't have a claim unless the exception on page 4, lines 8-10, applied. However, a person who was an employee that was injured because of the vaccination, if the vaccination was necessary for employment, would have workers' compensation benefits available; what entity that person was employed by would determine whose workers' compensation would kick in. Number 1443 MS. VOIGTLANDER, in response to questions from Representative Weyhrauch, reiterated that under the existing case law in Himsel, a member of the military - if that person is not considered a state employee but is a federal employee - could have a tort claim against the state. However, this bill draws a bright line by saying that if the injury is incident to military service, then whoever is injured cannot sue the state on any theory - either direct or vicarious liability - for damages. People would be limited to workers' [compensation] or other benefits, either through the state or through the federal government, depending on what papers they're carrying. MS. VOIGTLANDER, in further response to Representative Weyhrauch about how many states have adopted that bright-line test, said there are several states and that the Himsel case - in the dissent section written by Chief Justice Matthews and Justice Eastaugh at note 13, page 45, of the opinion - cites to the federal cases as well as state cases that adopt the Feres doctrine. Number 1593 REPRESENTATIVE WEYHRAUCH asked, if this bill became law and a military person was injured through negligence at the hand of a state official, whether that person could recover under other sorts of doctrines or theories [of law]. MS. VOIGTLANDER answered, "If it's for personal injury - it's a bodily injury or death - the answer would be no. REPRESENTATIVE WEYHRAUCH asked whether, except for workers' compensation or other insurance that may be available to the person, that would be the extent of recovery. MS. VOIGTLANDER said she believed so, unless there was a third party involved. Number 1678 REPRESENTATIVE MASEK asked about the title change from the original bill and why it now relates to workers' compensation and death benefits for members of the organized militia. MS. VOIGTLANDER surmised that those are editing changes from legislative legal counsel, saying she hadn't spoken with anyone about why that title change occurred. She went on to say that she'd gone through [Version H] and found that nothing in the bill changes workers' compensation benefits under existing statute; however, there is reference within the bill to workers' compensation "because of the intramilitary tort discussion we've had, saying that you can't sue in court but you do have workers' compensation benefits." She referred to Sections 12 and 13 and noted that the legislative drafters also had changed "civil liability" to "civil immunity" in the titles for those sections. Number 1903 MS. VOIGTLANDER, in response to Representative Gruenberg, explained that Section 2 has the search-and-rescue provisions, Sections 3-6 have to do with the Feres doctrine issue, Sections 7-11 deal with homeland defense immunity, and Sections 12-13 deal with firefighting activities. She said because these are grafted onto existing statutes, the bill required a number of changes, and hence so many sections are implicated. Number 2008 MS. VOIGTLANDER, in response to a question from Representative Gruenberg, affirmed that Sections 12 and 13 are the same. However, [Section 12 amends] AS 41.25, which governs protection of forestland from fire and other destructive agents, whereas [Section 13 amends] AS 41.17, which is the Alaska Forest Resources and Practices Act. Number 2062 REPRESENTATIVE GRUENBERG asked whether these people will have any remedy. MS. VOIGTLANDER answered that a person killed because of a wildfire wouldn't have a remedy against the state for tort damages if this passes. REPRESENTATIVE GRUENBERG asked what remedy they would have, and whether their families would go homeless and hungry. MS. VOIGTLANDER answered, "In terms of bodily injury, they would not have a remedy against the state." She added, "In many immunity provisions, it does result in someone being without a remedy." REPRESENTATIVE GRUENBERG asked what plan the state has to take care of these people and their survivors. MS. VOIGTLANDER said it is more a policy issue than a legal one. As a matter of legal interpretation of statutes, she said she didn't know what other programs or benefits existed, but offered to find out. She said federal programs kick in when there are wildfires; for example, the Federal Emergency Management Agency (FEMA) offers assistance to individuals and municipalities. Noting that normally it's an issue of property damage, she said that normally the remedy is that people have a fire-insurance policy, but that she didn't know whether it would cover a death. Number 2180 REPRESENTATIVE GRUENBERG asked whether this bill immunizes the state against property owners and civilians, just firefighters, or everybody. MS. VOIGTLANDER answered that it immunizes the state from tort lawsuits "from whatever source, so it would be tort lawsuits from someone who was injured through the fire." She reiterated that a firefighter who was injured would have workers' compensation remedies. REPRESENTATIVE GRUENBERG referred to Section 2 and search-and- rescue personnel. He asked whether this immunizes them from suits by the victim or personnel or both. MS. VOIGTLANDER responded, "This immunizes them from suits from third parties." She reiterated that state personnel would have workers' compensation remedies. Number 2259 REPRESENTATIVE GRUENBERG inquired about volunteers. He recalled a supreme court case that arose from the 1964 earthquake: a volunteer who went to Seward was swept out to sea, and it was held that the person [didn't qualify for] workers' compensation. Thus Representative Gruenberg said he'd offered an amendment [during an previous legislative session] to cover such a person, which passed. He asked whether this bill would roll that back so a volunteer and any survivors would [not even qualify for that benefit]. MS. VOIGTLANDER said she didn't know enough about workers' compensation to respond, but would research the issue. She said she knows there are some situations in which volunteers are covered by workers' compensation. Number 2354 BRAD THOMPSON, Director, Division of Risk Management, Department of Administration, responded that the statutory benefit for workers' compensation isn't affected by this legislation. He added that the state has a policy of extending benefits - not through statute, but through operating agreements - to volunteers that help with SAR activities. He explained: We have a volunteer service agreement; it's basically a contract. It allows the person that helps us help the public a remedy such that if they are not already protected by either workers' [compensation] - because many of them do have [workers' compensation coverage] because they come to us in their employment - or ... other remedies from their employer, we will protect and pay their medical bill and, in fact, commit to give them the basic minimums of workers' compensation benefits. Now, that's a contractual obligation that we have extended to the volunteer in respect and response to them coming forward and helping us. And that, again, is not affected by this legislation. Number 2414 REPRESENTATIVE GRUENBERG asked whether each individual has to sign the contract. MR. THOMPSON answered that as they are signed up by the SAR coordinator, usually the officer in command, they are signed on. "Often, the rosters are completed following the search, to be quite candid," he added. "But at least then we know who's in or who's out of this arrangement." Number 2425 CHAIR LYNN asked, if the practice is to sign up afterwards, what happens if [the person is killed before being able to sign]. MR. THOMPSON replied, "We've not yet faced that, but we do know it is a commitment from the state to protect these individuals. And we would extend that commitment." CHAIR LYNN inquired about any statutory commitment to that. MR. THOMPSON said it is policy and practice. He added that during a declaration of disaster, people who volunteer are covered by the statutory definition of employment that [Representative Gruenberg's amendment to a bill in a previous legislature] addressed. He clarified that he was speaking about SAR volunteers and other individuals who help the state perform its duties. Number 2495 REPRESENTATIVE GRUENBERG referred to Representative Fate's earlier question about the militia. Specifying that he was looking at the [new proposed] language in Sections 5 and 6, he offered his understanding that it relates not to the National Guard, but to the organized militia. MS. VOIGTLANDER replied: These are amendments to the existing statutes, AS 26, and so Section 4 relates to the military service as well as the Alaska militia; Section 5 relates to the organized militia, presumably - and I don't have the statutes in front of me - because the section that is amended is the section that relates to the organized militia. The only amendment to that section is that final language at lines 12-15. And Section 6, again, is the organized militia. And the only change to that is lines 22-25. ... But the change that we're talking about is reflected in Sections 3-6, to pick up both the Alaska National Guard and members of the organized militia. Number 2615 REPRESENTATIVE GRUENBERG said he was focusing on the organized militia here. He noted that Section 5 says that members of the organized militia who haven't been ordered into active state service aren't entitled to workers' compensation, and that Section 6 says the same people aren't entitled to death benefits. He asked what remedies they or their survivors have if they're on an emergency assignment but haven't been called up by the governor. MS. VOIGTLANDER answered, "My limited understanding of the organized militia is that they would be called out through a governor's order." REPRESENTATIVE GRUENBERG suggested there must be certain circumstances when that isn't the case, however; otherwise, these amendments wouldn't have been offered. MS. VOIGTLANDER said what she doesn't know is whether "they have a federal counterpart." She noted that there was someone from "that agency" present who perhaps could answer. Number 2679 REPRESENTATIVE CISSNA asked about people who are reacting to a terrorist activity, for example, immediately afterwards. She expressed amazement at how much isn't covered, and echoed concerns that people won't be taken care of. MS. VOIGTLANDER surmised that Representative Cissna's concern wasn't so much about tortious conduct of the state, but about whether volunteers who respond to an emergency are covered. She said that is a slightly different issue because it isn't necessarily an issue of being harmed through state action. In the 1964 earthquake, for example, if someone was injured while trying to pull someone from a crevasse, there wouldn't be a tort mechanism against the state because the crevasse wasn't of the state's making. As to whether such a volunteer would have some compensation for an injury, she said that isn't an issue she could address. "This is defensive activity; yours is more offensively what would the state provide," she suggested. REPRESENTATIVE CISSNA clarified, to the contrary, that her concern arises from talking with numerous people through the years who are trying to get workers' compensation to work for them, trying to prove something [in order to qualify for benefits]. She said this feels as if more attorneys are needed for each person in order to ensure coverage. She sought assurance that it isn't so. REPRESENTATIVE GRUENBERG referred to page 5, line 7 [Section 9]. TAPE 03-6, SIDE B Number 2983 REPRESENTATIVE GRUENBERG surmised, if a health care worker were treating someone and contracted the disease, that this would immunize the state against [a lawsuit]. He also asked whether [workers' compensation] would be the only remedy, no matter how negligent the state had been. MS. VOIGTLANDER referred to Section 7, subsection (b), which proposes an exception "when malice or reckless indifference to the interests, rights, or safety of others is shown by clear and convincing evidence." REPRESENTATIVE GRUENBERG observed that "clear and convincing evidence" is a much higher standard than the normal standard of proof. MS. VOIGTLANDER said it is intermediate between "preponderance of ... evidence" and "beyond a reasonable doubt." Number 2886 REPRESENTATIVE GRUENBERG asked Ms. Voigtlander whether she is aware of any other area of tort law, aside from punitive damages, where such a high standard of proof is required. He suggested this would be a bold new step in Alaska or anywhere in the country. MS. VOIGTLANDER said she could only address statutes she is familiar with, including the requirement for the higher standard for punitive damages. She indicated she believes there may be a few other provisions in civil law that require this higher standard, including some areas of statutory and common law in Alaska, but couldn't say what they were. REPRESENTATIVE GRUENBERG pointed out that this is the same standard used for terminating a person's parental rights. "It's a very, very high standard," he added. Number 2801 ROBERT DOEHL, Assistant Attorney General, Special Litigation Section, Civil Division (Anchorage), Department of Law, referred to Sections 3-6 and suggested the concern about the language relates to the fact that this will be pasted into existing statutes, under which the organized militia is defined as consisting both the Alaska National Guard, which has both a federal and state role, as well as the Alaska state defense force, which only has a state role. That is why, throughout Sections 3-6, the language addresses what happens in a state capacity, he said. In the case of the national guard, there would be a federal capacity wherein individuals would have federal remedies; in the case of the Alaska state defense force, they only would have state remedies. Number 2717 DEAN BROWN, Deputy Director, Division of Forestry, Department of Natural Resources (DNR), noted that part of the division handles wildland firefighting, a major public service and public safety issue for the state. Mentioning the current Miller's Reach litigation [which was decided by a jury in favor of the state shortly after this hearing], she said most people are aware that the state faces major liability in these areas. She emphasized the importance she believes the bill has for the state with regard to delivering these services. Noting that the fire season was declared two weeks early this year, Ms. Brown reported that the division already has responded to 64 fires. Firefighters in Southcentral Alaska responded to numerous fires from high winds, and then still had to respond in court. She stressed the desire to focus the division's emergency personnel towards their job of fighting fires. She echoed comments by Ms. Voigtlander about workers' compensation availability and urged support for the bill. Number 2549 REPRESENTATIVE CISSNA spoke about the state's obligation to its public servants and suggested lawsuits are filed if someone believes a wrong has been done. She voiced concern that if people risk their lives for others, the state should feel responsible for them and their families, and said workers' compensation, "in my book, doesn't look really good." She said she wants some assurances that the state is providing for these people who work in danger's way, and expressed concern about removing the tools that exist through the court system that provide justice. "We as a state shouldn't be ... a worse employer than the private sector," she remarked. She asked Ms. Brown whether there is adequate coverage or if some special program covers someone who dies in the line of duty. MS. BROWN replied that she cannot address the adequacy because it isn't her area. She said these firefighters have extensive training and experience; they meet national standards, and other states and the federal government use these individuals. However, in performing their duties, they make decisions based on the best information they have at that time. This bill would provide immunity if decisions are made that later are [seen as erroneous]. She asserted that it gives additional protection to individuals performing this emergency response. Indicating the division responds to 500-700 fires a year, she said every one "could be open to extreme liability under tort immunity." She added that she doesn't believe this removes individual protection because workers' compensation remains. Number 2297 REPRESENTATIVE CISSNA asked about the need for the bill, noting that fires aren't new to the state. She asked whether there has been a lot of tort legislation because of Alaska's fires. MS. BROWN mentioned a Tok fire, but said the Miller's Reach fire was the first major fire and litigation. She surmised, however, that Alaska will see what other Western states have seen, increased litigation associated with wildland fires. She suggested Alaska is a number of years behind other states. She agreed there aren't more fires. Specifying that it is her personal opinion, she suggested [introduction of the bill] is related to how litigious society has become. Number 2178 CHAIR LYNN asked whether anyone else wished to testify. He then closed public testimony. REPRESENTATIVE GRUENBERG told members this is the first bill he has intended to vote against moving from committee, and that he believes it sends the wrong message to people who put their lives on the line. "These are the people this committee should be protecting and this state should be protecting," he said. Representative Gruenberg went on to say he'd looked carefully and couldn't see a single section of the bill he supports. Number 2127 REPRESENTATIVE MASEK moved to report CSHB 245, Version 23- GH1025\D, out of committee with individual recommendations and the accompanying fiscal notes; she requested unanimous consent. Number 2092 REPRESENTATIVE GRUENBERG objected. A roll call vote was taken. Representatives Masek, Fate, and Lynn voted in favor of moving CSHB 245, Version 23-GH1025\D, out of committee. Representatives Cissna, Gruenberg, and Weyhrauch voted against it. Therefore, CSHB 245(MLV) failed to be reported from committee by a vote of 3-3. Number 2037 REPRESENTATIVE WEYHRAUCH asked for reconsideration to be taken up the same day. CHAIR LYNN responded, "Yes, without objection." REPRESENTATIVE WEYHRAUCH explained that he'd voted "no" because of serious concerns about "the bright-line statement we're making here that they're absolutely immune from liability for the kind of people that we're asking to serve this country, and the people who live here." He said he believes limited liability ought to be available, but isn't sure there should be complete immunity. He expressed the desire to move the bill on to the House Judiciary Standing Committee, but said he wants the bill amended to reflect his concerns. Number 1982 REPRESENTATIVE FATE said he doesn't like to hold any bill up, but had questions and would amend this to at least clarify what "organized militia" is, since the bill deals with the organized militia in large part; he noted that the bill uses the terms "military", "civil defense", and "homeland security". He also suggested the need for clarification and perhaps amendment to the provisions relating to vaccinations. Number 1900 REPRESENTATIVE GRUENBERG announced that despite his own reservations, he'd offer amendments in the House Judiciary Standing Committee on behalf of members of the current committee. Number 1874 REPRESENTATIVE MASEK expressed faith that the House Judiciary Standing Committee and the House Finance Committee would work out issues brought up this date. Number 1815 REPRESENTATIVE MASEK again moved to report CSHB 245, Version 23- GH1025\D, out of committee with individual recommendations and the accompanying fiscal notes. Number 1806 REPRESENTATIVE CISSNA objected. She expressed concern that speeding legislation along isn't in anyone's best interest, and said this process is meant to be deliberative and slow. She cautioned that there is no big rush, and said this committee needs to do as much as possible to get a good piece of legislation together that as many members as possible can feel good about. Number 1712 CHAIR LYNN said he shares some of these concerns, but that it is going to the House Judiciary Standing Committee, where one member of the current committee sits and will offer amendments on behalf of members. A second roll call vote was taken. Representatives Fate, Masek, Weyhrauch, and Lynn voted in favor of moving CSHB 245, Version 23-GH1025\D, out of committee. Representatives Cissna and Gruenberg voted against it. Therefore, CSHB 245(MLV) was reported from the House Special Committee on Military and Veterans' Affairs by a vote of 4-2.
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