Legislature(2003 - 2004)
05/19/2003 08:46 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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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."
AT EASE 9:15 AM / 9:15 AM
This was the second hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this legislation would limit civil
action of suits and claims filed against the State by military,
search and rescue, and firefighter personnel. He reviewed that,
during the previous hearing on this bill, Committee Members raised
questions regarding the State's immunity from suits and claims as
well as to how a few provisions of the bill would apply. He noted
that one area of concern regards proposed language in Section 2,
located on page 2, lines 16 - 20 of CS HB 245(JUD)(efd fld),
Version 23-GH1025\H.A that Senator Taylor interprets would exempt
State employees from liability due to their negligence. This
language reads as follows.
Sec. 2. AS 18.60 is amended by adding a new section to read:
Sec. 18.60.125. Civil immunity. A person may not bring a
civil action for damages against the state, a political
subdivision of the state, or the officers, agents, or
employees of the state or a political subdivision of the state
for a death, personal injury, or property damage that results
from an act or omission in performing or failing to perform
activities or duties authorized under AS 18.60.120-18.60.175.
SCOTT NORDSTRAND, Deputy Attorney General, Civil Division,
Department of Law, stated that this section of the bill addresses
search and rescue matters and simply restates "what Alaska law was
two-years ago" by re-clarifying that the State and its search and
rescue employees "would not be civilly liable for their actions" in
a similar fashion as that of the Alaska Supreme Court upholding the
decision that police investigations are immune. He pointed out that
"this is a matter of [the State] taking scare resources that are
engaged in the practice of search and rescue" activities and
attempting to use them in the "best" manner possible with the
recognition that the State has a moral and statutory obligation to
assist people who require these efforts. He stated "that all four
issues" in this bill are "turning back the clock to the year 2000,
before the Alaska Supreme Court, in several different decisions,
changed Alaska law." He declared that this is the goal of the
legislation, and he stressed that, "if we don't turn back the
clock, the State faces potentially calamitous liability with
limited ability to fund those expenses."
Co-Chair Wilken stated that the bill's language mirrors what was in
effect three years prior.
Mr. Nordstrand clarified that the language has been updated to
reflect today's search and rescue scenarios, and with that
consideration, he asserted, that the bill would reflect the
approach to immunity that had previously been commonplace and
reasonable under that previous mode of operation.
WIILIAM TANDESKE, Commissioner, Department of Public Safety, stated
that search and rescue missions are conducted "on the totality of
the circumstance." He stated that initial search and rescue
information is often times secondhand or encrypted in that the
individuals being searched for either do not follow the plan they
told people or neglect to file a flight plan. He shared details of
some situations to which the Department recently responded. He
continued that a recurring situation in Rural Alaska is that people
are routinely overdue and decisions must be made as to how and when
to respond. He stated that the Department routinely relies on
volunteers and residents of the area to address these situations,
and he communicated that these people "do an outstanding job" for
the Department.
Commissioner Tandeske exampled a situation wherein ten
snowmachiners might be lost and eventually nine of the ten
reappear. He stated that the area to be searched might be large and
"a measured response" might be appropriate, as consideration must
be given to things such as how much danger to expose the response
team to. He stated that these are difficult decisions to make.
Oftentimes, he shared, response decisions are misunderstood by the
public who are unaware of the complexity of a situation.
Commissioner Tandeske stressed that the public perception that
action is not being taken in some cases "is inaccurate." He stated
that the question of whether the State should be civilly liable
when people put themselves in harms way and "it doesn't turn out as
everyone would like" is an important issue.
Co-Chair Wilken asked Senator Taylor to restate his concerns
regarding the aforementioned Sections 2, and Section 11 of the
bill. Section 11 reads as follows.
Sec. 11. AS 41.15 is amended by adding a new section to read:
Sec.41.15.045. Civil immunity. Notwithstanding other
provisions of law, a person may not bring a civil action for
damages for death, personal injury, or property damage that
results from an act or omission in performing or failing to
perform activities or duties arising out of prevention,
monitoring, control, or suppression of fires authorized to be
performed under AS 41.15.010-41.15.170 against
1) the state or its officers, agents, and employees;
2) a political subdivision of the state or its
officers, agents, and employees;
3) any organization authorized to prevent, control,
or suppress fires;
or
4) others assisting in the control or suppression
of fires at the request of an officer or employee of the
United States or the state.
Senator Taylor stated that his concern regards the determination
that this legislation would provide "total blanket immunity" and
that "no civil remedy would be allowed," regardless of whether
gross negligence or recklessness or intentional misconduct on the
part of dispatchers or the people in charge of the rescue was an
issue. He asserted that this is the basis for his questioning the
legislation. He understood that a recent State Superior Court
decision that found the State liable for fire damages is being
appealed before the State Supreme Court. He mentioned a separate
fire case wherein the State had to defend itself and was found not
liable; however, he attested that it might be possible for the
State to be found liable were gross conduct or intentional
negligence proven. He continued that the State has recently settled
a case out-of-court rather than go to court and "probably lose a
larger amount." He voiced that recent court cases have prompted
this legislation, and he is concerned about the State being granted
blanket immunity.
Co-Chair Wilken referred the Committee to a new committee
substitute, Version 23-GH1025\I that has been presented by Senator
Taylor. He stated that the single difference between Version 23-
GH1025\H.A and Version "I" is that a new subsection is inserted in
at least four different locations in Version I. That proposed
language reads as follows.
This section does not apply to a civil action for damages as a
result of gross negligence or reckless or intentional
misconduct.
Senator Taylor concurred. He stated that the language would be
inserted in sections of the bill in which the safeguard has not
already been provided.
Co-Chair Wilken characterized the language as an amendment to the
bill.
Mr. Nordstrand voiced that the inclusion of this language would
"recreate the standard of gross negligence or reckless or
intentional misconduct as a basis" for a lawsuit in these
circumstances. He stated that "the distinction between gross
negligence and negligence is something only a lawyer could love."
He assured the Committee that the adoption of Senator Taylor's
language would not prevent "a lawyer from suing the State for
anything" that could be sued in court currently. He declared that
this language "would change nothing in the effect of the law"
except that the State would be forced to defend itself at a great
deal of expense. He furthered that the Court's instruction to the
jury regarding the difference between negligence and gross
negligence "would be meaningless at that point" because the State
would have spent a large amount of money to defend itself, and the
jury "operates just as much from emotion as facts…." He stated that
"from a trial lawyer's point of view," the proposed language in
Version I would "ratify what the Alaska Supreme Court has done"
that the State "is trying to undo."
Senator Hoffman voiced appreciation for Senator Taylor's efforts in
addressing this concern. He stated that the Department appears to
be focusing on preventing lawsuits in order to save the State
money. He voiced concern regarding this position as he attested
that some lawsuits might have merit.
Mr. Nordstrand responded that, "right and wrong is a function of
the policies … we choose." He stated that part of the choice today
"is whether we are going to buy fire trucks or pay lawyers" to sue
the State. He informed that federal firefighters, municipal
firefighters and municipalities have complete immunity from
lawsuits such as the recent fire-related lawsuit, Millers Reach vs.
State of Alaska. He continued that were the State to retain
municipal firefighters, they would be immune. Continuing, he
declared, "the only" ones not immune are State firefighters and the
State. He noted that while the Legislature "has no power" to change
the immunity status of federal firefighters, it could address the
municipality immunity status. However, he declared "those two
policies reflect sound policy thinking." He listed numerous states
that have adopted immunity policies, and he suggested that this
policy stance reflects the reality of limited resources and the
limited number of firefighters. He declared that these limited
resources are an issue that the State, with its vast size, must
consider. He noted that the Millers Reach lawsuit argued that the
State should have used its resources differently. He stated that
the adoption of the Version I committee substitute would allow
lawyers to continue to argue this point.
SFC 03 # 104, Side B 09:34 AM
Mr. Nordstrand specified that the policy being addressed in this
legislation is how the State should be spending its money. He urged
the Committee to spend it on firefighters rather than lawyers and
lawsuits.
Senator Hoffman asked whether Mr. Nordstrand would view the
Department of Public Safety's search and rescue missions in the
same manner.
Mr. Nordstrand responded that it would be "the same premise." He
continued that were a state the size of Alaska to invest heavily in
its search and rescue efforts by strategically placing teams
throughout the State, and guarantee that its response "would be
absolutely perfect every time, it would serve "to eliminate the
liability." He theorized that were the State a private contractor
who was hired to prevent, but did not prevent, a building from
burning down, there would be liability. However, he argued that the
State is not a private contractor, but "is charged with this duty."
He stressed that the State would "always fight fires" and conduct
search and rescue missions even though it is not an obligation
mandated by State statute.
Senator Hoffman commented that while the State has won lawsuits
involving firefighting efforts, it lost the search and rescue
lawsuit of Nancy Kiokun and Cynthia Olrun vs. State of Alaska
Department of Public Safety (S09044, April 5, 1999). He asked
whether the law should be changed in order to reverse judgments
such as this one and prevent such lawsuits from being presented.
Mr. Nordstrand responded that he is unaware of the particulars of
that case; however, he mentioned that its Alaska Superior Court
decision is currently under review by the Alaska Supreme Court. He
stated that it would be inappropriate to judge the State of
Alaska's laws on the basis on one lawsuit.
Senator Hoffman asked whether action on this legislation could be
delayed until the Supreme Court has made its decision on the
aforementioned case, as he expressed that, were the Supreme Court
to rule in favor of the State, action on this legislation might "be
irrelevant."
Mr. Nordstrand opined, "that it is the Legislature's role to define
the policy of sovereign immunity." Furthermore, he stated, "it is
the Legislature's role rather than the Alaska Supreme Court's role
to say what the State could and could not be sued for.
Senator Hoffman pointed out that it is the Legislature's role to
decide how far the State should go "in trying to protect some of
our citizens."
Mr. Nordstrand agreed.
Senator Taylor asserted that, "we're all aware of the distinction
and the need for sovereign immunity." Otherwise, he declared,
Legislators "could be sued for decisions that are made in the
Legislature." However, he avowed that "historically, this has been
reserved for discretionary decisions" such as how a highway would
be designed. Furthermore, he continued that once the highway is
built, the State is responsible for maintaining it and keeping it
safe for travel when road conditions are treacherous. He declared
that, were individuals harmed because of State employee negligence,
"there is a right of suit today."
Mr. Nordstrand concurred and stated that his Division is handling
"a number of cases just like that."
Senator Taylor commented that a former Legislator brought suit
against the State and won the case after his wife was killed on a
poorly-maintained-for-conditions State road. He argued that while
the State road system is a very valuable resource, the State has
limited highway maintenance resources. Therefore, he argued that,
"every State highway should be immune from suit." He declared that,
"the public would react terribly" to this decision. He stated that
the public has a right to sue the State as well as the federal
government for the negligence of their employees. He opined that
were State employees to act with gross negligence in a fire
fighting scenario or a search and rescue mission due to being on
drugs or being despondent about a personal matter, then the State
should be held liable. He noted that even "good Samaritans" are
held to standards that they conduct themselves in a non-reckless
manner. Therefore, he questioned "the legal justification" for not
holding the State to that same standard.
Mr. Nordstrand voiced that these unique activities are wrought with
danger and "with enormous consequences." He stressed that
individuals participating in fire fighting, search and rescue, and
civil defense activities must be committed to the activity rather
than being concerned that their action or involvement might result
in a lawsuit. He stated that were this the case, people might
choose not to respond to these "very dangerous activities that
involve enormous judgment," and "enormous allocation of limited
resources." He asserted that, "in these particular areas, the State
should not absorb the liability because the risks to the treasury
as opposed to the risks of not, are too great." He reiterated that
in response to the question of whether someone could commit gross
negligence, he reiterated that it would be difficult to distinguish
the difference between being negligent or grossly negligent would
accomplish as a State policy matter because, he declared, the
question is whether it would be good State policy to fund lawsuit
defense rather than to provide such things as equipment.
Senator Taylor commented that he would prefer to maintain the
standard of simple negligence; however, he determined that it would
be too difficult for the State to avoid damages caused by summary
judgment actions. He characterized this legislation "as a sales
pitch on the utilization of State resources," rather than having
anything to do with the State's liability for injury, death, or
property damage that might occur as the result of "someone's stupid
mistake." He asked what monitoring system is in place to hold
employees accountable for their actions. Continuing, he questioned
the reasoning for labeling the activities addressed in the
legislation as "so precious" that they could not be held to any
standard at all.
Senator Taylor asked what would be unique about a situation wherein
a pilot committed an act of gross negligence that caused people to
die. He voiced that the State has approximately 50 aircraft in its
fleet and that, were something to happen to an employee involved
with those aircraft, they would be covered by the State's worker's
compensation schedule; however, he noted that, currently, the State
would be liable were a non-State employee injured while traveling
with a State pilot who might commit pilot error or negligence. He
declared that the reason that this legislation is addressing this
issue now is because the State "got sued," and he asserted that a
standard should be established to address a situation wherein gross
negligence is an issue. He concluded that no argument has been
presented to satisfy his concern regarding "this level of
immunity."
Co-Chair Wilken commented that the language included in Version "I"
of the bill as opposed to that of Version "A" addresses the point
that Senator Taylor is making.
Senator Olson voiced concern regarding State efforts to ensure that
adequate oversight in search and rescue operations exists.
Furthermore, he asked whether search and rescue operations, in
light of resource shortages, should be transferred from the
Department of Public Safety to another authority.
Mr. Nordstrand responded that the Department is not advocating for
search and rescue operations to be moved to another authority. He
stated that the Civil Air Patrol and the National Guard conduct a
large amount of these operations. Furthermore, he noted that
although Department aircraft might be involved in a search, limited
manpower resources are provided to the endeavor, particularly, he
noted, in rural areas. He stressed that the primary role of the
Department is to coordinate activities.
Senator Olson opined that contrary to Mr. Nordstrand's comments,
non-Department aircraft are primarily used in search and rescue
operations in his district.
Senator Taylor stated that, in light of the fact "that the State is
not constitutionally mandated to" provide these services, the State
could contract with the private sector to conduct search and
rescue, firefighting, and air transportation efforts. He questioned
whether these entities could therefore be "granted total, absolute
immunity no matter what they did or how they did it."
Mr. Nordstrand responded that he is unsure of how this would be
addressed, although he noted that this legislation would provide
immunity to agents of the State as well as volunteers engaged in
search and rescue efforts. Furthermore, he noted that liability
language would be specified in the contract between the State and
the contractor.
Senator Taylor stated that "of course," the State would write a
contract specifying that the for-profit contractor would be
responsible for the entirety of their actions. The contract, he
attested, along with legislation providing the State with absolute
immunity, would guarantee that the State could not be held liable.
Therefore, he continued, rather than the issue being whether the
State would be protected from legal action, the issue would be
whether the State would grant the for-profit private contractor
total immunity from lawsuit for actions conducted on behalf of the
State. Continuing, he pointed out that he knows a private fire
service contractor who operated in Ketchikan for twenty-five years
"who knew full well" that he would be held liable for his actions.
Senator Olson asked regarding the liability of the contracted-for
search and rescue operations that are conducted in the Norton Sound
Borough.
Senator Taylor interjected that the question is whether the private
contractor operating on behalf of the State would be held to a
quality standard or would be granted, "total blanket immunity."
Mr. Nordstrand replied that, regardless of the means being used for
fire suppression, search and rescue operations, or for civil
defense, "the policy at issue would be the same: that with the
absence of complete resources" to have "all the ability to pay" or
"to be everywhere with unlimited resources" and "to be absolutely
positively certain" that no mistakes would be made, there should be
limits on liability to the entity providing these services.
Senator Taylor moved to adopt the Version "I" committee substitute
as the working document.
Co-Chair Wilken and Co-Chair Green objected.
Co-Chair Wilken stated that the aforementioned language regarding
gross negligence or misconduct is included in at least six
different places in the Version "I" committee substitute. He asked
for confirmation that the addition of this language would be the
only change from Version "A" of the bill.
Senator Taylor confirmed.
Co-Chair Green commented that were the Version "I" committee
substitute adopted, she would be "very interested" in de-activating
fire fighting service, search and rescue service, and any other
service that is offered in the State wherein the State is "the only
entity that is liable." She stated that the federal government and
municipalities would not be liable in these situations; and
therefore, she stressed that it would be unacceptable for the State
to be liable.
Senator Taylor declared therefore, that the State should not be
held liable for any of the functions provided by the State such as
the road system. He asserted that the State has the right to exempt
itself from liability for its road system as well as to any
negligence committed by employees of the Department of
Transportation and Public Facilities.
Co-Chair Green asserted that granting total immunity to the State
for the entirety of its services is not the issue, as she declared
that the routine operations of the State are "a totally different
forum of decision making" than the ones being addressed in this
legislation.
A roll call was taken on the motion to adopt the Version "I"
committee substitute.
IN FAVOR: Senator Hoffman, Senator Olson, and Senator Taylor
OPPOSED: Senator B. Stevens, Senator Bunde, Co-Chair Green, and
Co-Chair Wilken
The motion FAILED (3-4)
The committee substitute Version "I" failed to be adopted.
Senator Taylor moved to report the bill from Committee.
Senator Taylor objected to his motion. He stated that it is
"ludicrous" for the State to resolve litigation against the State
by addressing it with yet another immunity bill. He declared that
some of these bills "are introduced in the middle of the
litigation" process. He voiced discomfort with telling the citizens
of the State that the State has awarded itself blanket immunity for
its actions.
Senator Olson shared that in his personal experience of
participation on search and rescue missions, while some of the
operations have been directed "very well," others "certainly had
room for improvement."
A roll call was taken on the motion.
IN FAVOR: Senator B. Stevens, Senator Bunde, Co-Chair Green, and
Co-Chair Wilken
OPPOSED: Senator Hoffman, Senator Olson, and Senator Taylor
The motion PASSED (4-3).
CS HB 245 (JUD)(efd fld) was REPORTED from Committee with zero
fiscal note #1 from the Department of Law, zero fiscal note #2 from
the Department of Natural Resources, and indeterminate fiscal note
#3 from the Department of Administration.
AT EASE 10:00 AM / 10:00 AM
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