Legislature(2003 - 2004)
05/12/2003 01:12 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 198-DAMAGES RECOVERED BY POLICE/FIREFIGHTER
MR. BRIAN HOVE, staff to Senator Ralph Seekins, sponsor of SB
198, gave the following explanation of the bill.
SB 198 revises the common law known as the
'Firefighter's Rule'. This rule precludes firefighters
and peace officers from recovering civil damages for
injuries caused by any negligent act inflicted while
on duty. The 'Firefighter's Rule' does not distinguish
between negligent acts requiring the firefighters' or
peace officers' response from negligent acts that are
unrelated to the reason the firefighter or peace
officer was required to respond.
For example, as currently employed, the 'Firefighters
Rule' precludes a police officer from suing for
damages for injuries suffered as a result of being
struck by a drunk driver during the course of
transporting a prisoner to the courthouse. This,
despite the fact that the negligent act, in this case
the drunk driving, is unrelated to the duty the
officer was performing at the time. SB 198 corrects
this incongruity. Yet, on the other hand, this bill
does nothing to change the case where the police
officer is injured during the course of a pursuit of
the drunk driver. This is considered a foreseeable
risk associated with the profession and, accordingly,
well within that which the 'Firefighter's Rule' should
cover.
Therefore, SB 198 makes a distinction between
negligence that is related to the reason the
firefighter or peace officer is responding and
negligence that is unrelated to the reason the
firefighter or peace officer is responding. In a
nutshell, that's what this bill accomplishes.
SENATOR FRENCH asked if other states have similar laws.
MR. HOVE said some do, and testifiers were available to speak to
which states do.
SENATOR OGAN read from page 2 of a handout entitled Peace
Officer's Civil Liability and Internal Affairs Newsletter about
the independent causation section of the Firefighters' Rule:
Thus, while a peace officer may not recover civil
damages for injuries caused by the danger that
necessitates the officer's presence, the officer may
recover civil damages where the cause of the officer's
injury is unrelated to, that is, independent of, the
reason for the officer's presence at the location
where the injury occurred....
The Firefighter's Rule does not bar all lawsuits
against persons who intentionally or negligently
injure peace officers.
He questioned why SB 198 is necessary if, according to the
experts, there is recourse in the Firefighter's Rule.
CHAIR SEEKINS said the Alaska court has ruled the exact
opposite. He noted that Officer Couturier could provide an
example.
OFFICER MIKE COUTURIER, Vice President of the Anchorage Police
Department Employees' Association, told members he would be
covering the police officers' view of this legislation and that
Mr. Aitchison would address any legal questions. He said while
an Anchorage police officer was going from one call of service
to another in late winter of 2001, he was hit at an intersection
by an intoxicated driver who was driving well over the speed
limit. The police officer's neck was broken and he sustained
numerous other injuries that required ten months of recovery.
Although the police officer worked with both insurance
companies, those situations end up costing the taxpayers and the
municipality. The officer received some compensation but not
nearly the same amount another citizen would have requested in a
civil suit. He said the Firefighter's Rule hinders police
officers from civil litigation against a person who has done
harm through negligence or an intentional act, even when that
act has nothing to do with a call for service. The Anchorage
Police Department Employees' Association would like to see SB
198 enacted as it partially restores police officers' and all
first responders' abilities as citizens to hold negligent or
intentionally harmful persons accountable for their acts. He
said first responders accept certain job risks but feel they
should have the same rights as any other citizen to seek
restitution for damages if something happens to them that is
totally unrelated to their jobs. He said these cases are not
common and, to some degree, SB 198 might save municipalities
medical costs, property damage costs and wages.
MR. WILL AITCHISON, attorney for the Anchorage Police Department
Employees' Association, said he has tracked the evolution of the
Firefighters' Rule for over 15 years. It is a rule of common law
that was not created by legislatures but has been adopted on a
state-by-state basis. Not all states have addressed the issue of
whether the Firefighters' Rule should be adopted; about 35
states have. The trend now is clearly away from adopting the
Firefighters' Rule. In the last ten years, states such as New
York, Florida, New Jersey and Minnesota have statutorily
repealed or substantially modified the Firefighters' Rule.
Courts in other states, such as Oregon and Colorado, have
refused to adopt it.
MR. AITCHISON said last year, the Alaska Supreme Court, when
ruling on a case that involved the police chief of Dillingham,
adopted the Firefighters' Rule for the first time. The problem
with the Alaska Supreme Court's decision is that it does not
identify what version of the Firefighters' Rule it adopted and
as many as eight different versions of the rule exist. SB 198
fixes the Firefighters' Rule into law with the version in
existence in California. It is the majority statement of the
rule where it exists: it bars lawsuits when the underlying
negligence is the reason the first responder was called to the
scene; it does not bar lawsuits when the underlying negligence
is from something else. He explained that the description of the
Firefighters' Rule that Senator Ogan read would not be
applicable in the Illinois or Missouri version of the law. He
repeated it is unclear from the Alaska Supreme Court decision
which version it adopted.
SENATOR THERRIAULT asked if a person who is injured while
responding to an accident, when responding is part of their job
duty, would be covered by workers' compensation.
MR. AITCHISON said that is correct.
SENATOR THERRIAULT commented that workers' compensation would
cover lost wages and medical costs. He asked if the insurance
company has the right to go after the drunk driver to recoup the
costs.
MR. AITCHISON said no; according to his understanding of the
law, the insurance company or municipality only has the same
rights that the police officer or firefighter has to pursue that
claim. That is why employers and employees are standing together
against the Firefighters' Rule. That rule transfers the risk of
negligent behavior from the person who acts negligently to the
public and to the injured party.
CHAIR SEEKINS closed public testimony on SB 198.
SENATOR OGAN said after hearing the testimony, his concerns
about the measure have been mitigated.
SENATOR THERRIAULT asked Chair Seekins if the insurance company
can "go after the bad actor."
CHAIR SEEKINS said from his research, he believes it is very
difficult to do so, if not impossible. He said this legislation
could have a very positive fiscal note because municipalities
would be able to recover costs. He pointed out that he looked
into codifying this common law because he believes it is good
public policy to define how that common law is to be interpreted
in this state. This would allow the employer and employee to
subrogate against the person who caused the damage.
SENATOR FRENCH said he believes this legislation is a fair idea
for peace officers and the people currently bearing the cost of
these accidents. He said he is intrigued by Senator Therriault's
inquiry about the interplay between the insurance industry and
who is bearing the cost now. He asked that he be given the
opportunity to read the Alaska Supreme Court opinion on Moody v.
Great Western before action is taken on the bill.
SENATOR THERRIAULT asked for an explanation of the language on
line 6, page 1, "or the personal representative of the peace
officer".
CHAIR SEEKINS said a personal representative would be involved
only when a peace officer died.
SENATOR THERRIAULT said if he was hit by a drunk driver while
driving to work, and his insurance covered his medical bills and
lost wages, his insurance company would then go after the drunk
driver to get paid. He asked if a peace officer would be treated
differently under the Alaska Supreme Court's interpretation and
whether an insurance company would be barred from subrogating
against the drunk driver's insurance company.
MR. AITCHISON said the problem with an insurance company
recovering for damages is that the right to subrogation only
exists when the injured person had the right to recover lost
wages and medical expenses. The insurance company would have no
better claim than the police officer or firefighter. Therefore,
if the claim is barred by the Firefighters' Rule, the insurance
company would have no right to proceed.
CHAIR SEEKINS noted that Senator Ellis had joined the meeting.
SENATOR THERRIAULT asked if firefighters or peace officers are
singled out for special treatment that is detrimental to them.
MR. AITCHISON said they are. They have fewer rights to bring
these sorts of claims than any other class of employees.
CHAIR SEEKINS informed members that he would ask counsel to
research the question of subrogation and would schedule the bill
at a later date.
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