Legislature(2003 - 2004)
05/17/2003 10:15 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 245(JUD)(efd fld)- SUITS & CLAIMS: MILITARY/FIRE/DEFENSE MS. GAIL VOIGTLANDER, Chief Assistant Attorney General of the Civil Division, Department of Law, provided the following overview. CSHB 245(JUD)(efd fld) makes two very important public policy changes. First, the bill provides immunity for emergency services workers so that they can do their jobs without the distraction of possible civil liability and civil litigation while on the job and make important emergency-related decisions. Second, the bill will save the state a substantial amount of money in defense costs and in the payment of claims. This bill brings Alaska into the norm with other jurisdictions and with other statutes in terms of immunity. She added that the emergency workers who will have immunity are workers who have workers' compensation coverage through the State of Alaska. This bill does not change that coverage at all so it does not change the fact that when one receives workers' compensation benefits, any ability to additionally recover for tort remedies from the employer is waived. The workers' compensation system is a no- fault system that provides more prompt payment to the injured worker without formal litigation and without any need to prove negligence. MS. VOIGHTLANDER pointed out that the first subject area of the bill addresses search and rescue operations. The Alaska State Troopers are responsible for making decisions about initiating and conducting search and rescue operations, although they rely heavily on local governments and volunteer workers once a decision is made to conduct a search and rescue. The Alaska Supreme Court has ruled in a number of cases that police are not exposed to civil liability in this area. This will bring search and rescue within that gamut. MS. VOIGHTLANDER explained the second subject area the bill addresses is that of intra-military torts. This bill clarifies what was muddied in a Supreme Court case in 2001, in which two of the distinctions that had been followed and understood by members of the military became blurred. TAPE 03-52, SIDE A 12:00 p.m. MS. VOIGHTLANDER said the law of the land in all but two jurisdictions has been that the Feres doctrine prohibits members of the military from suing one another for decisions that are incident to military service. That doctrine is based upon two public policies. The first policy acknowledges the importance to the military command structure that an officer in charge not be subject to civil liability when giving an order. The second policy recognizes that it is not good public policy to have civilian courts interject themselves into military orders and decisions about military operations. CSHB 245(JUD)(efd fld) would bring Alaska back into alignment with the other jurisdictions that follow the Feres doctrine, which the military believed was the operating law of the land in Alaska until the 2001 decision by the Alaska Supreme Court. The bill also clarifies who is to pay for injuries to military members. When military members are on state orders, they would be covered by state workers' compensation; when on federal orders, they would be covered by federal workers' compensation and benefits. MS. VOIGHTLANDER said the third subject area covered by the legislation is that of civil defense. This is simply an amendment to Title 26, which deals with civil defense issues. It provides important immunities to those who are acting in civil defense of Alaska from being sued by each other or members of the public. It contains an exception that allows for a third party claim against the state or local government or civil defense workers if malice or reckless indifference to the interests, rights, or safety of others can be demonstrated using the clear and convincing evidence standard. MS. VOIGHTLANDER informed members the final subject area of the bill addresses firefighting. This legislation will bring Alaska into alignment with a majority of other jurisdictions that immunize firefighters and state and local governments that conduct firefighting activities. Litigation has not occurred in this area in the past because people assumed the body of this law prohibited such lawsuits. However, the Alaska Supreme Court issued two decisions in 2001 that said litigation could be filed against the state over firefighting activities. She said firefighters are covered by workers' compensation under existing law. Additionally, local firefighters are already immunized under existing law. This legislation would expand that same immunity to other firefighters in the state. MS. VOIGHTLANDER pointed out that defending civil litigation in these four areas has had a significant fiscal impact on the state. For example, the defense costs of a recent case on search and rescue amounted to $250,000. That case is on appeal over a judgment in excess of $7 million. In the area of intra-military torts, the 2001 case cost $1 million in defense costs, and the total settlement was $7.5 million, of which the state is obligated to pay $2.5 million. The state no longer has insurance so any future claims will directly impact the state budget. Finally, the cost of the defense for cases that were tried in Palmer over the Miller's Reach fire has been $2.5 million. She offered to answer questions. SENATOR FRENCH said he is curious about the parallel between police investigations and the court decisions that determined immunity exists regarding how those investigations are conducted, and the search and rescue situation. He asked if the immunity doctrine is developed purely through court decisions or whether a statute grants immunity for police investigations. MS. VOIGHTLANDER replied: Senator French, that immunity has arrived basically through court decisions. And to put a finer point on it, what the court has found in the number of cases that I cited is that it will not recognize a tort of negligent police investigations. So while we oftentimes merge the doctrines of no actionable tort duty and immunity, those are founded upon the precept that there is no actionable court duty, however the effect is there is immunization. SENATOR OGAN informed the audience he would be temporarily chairing the meeting. He then asked about people who might violate someone's civil rights, such as a police officer that unreasonably detains a person, and whether that type of scenario is addressed in the legislation. MS. VOIGHTLANDER told members the violation of constitutional rights is a claim that can be made under federal law 42 U.S.C. 1983. It says a claim may be filed in either state or federal court. This legislation does not affect the ability of an individual to bring a 1983 action against an individual who allegedly violated a constitutionally protected right because that is covered by federal law. SENATOR OGAN asked if individuals would be able to sue for damages in state court if their constitutional rights were violated by one of the organizations that have immunity. MS. VOIGHTLANDER answered: Senator Ogan, that is correct. A violation of constitutional rights cannot be made against a state under that law but it can be made against individuals in their individual capacity and that lawsuit could be filed in state court and, because it is founded upon a federal law that Congress passed, this bill does not affect that right. SENATOR OGAN asked if a person could sue and collect punitive damages in state court for a violation of his or her constitutional rights. MS. VOIGHTLANDER clarified that a person could because although the law is federal, it was specifically passed so that a litigant could file either in federal or state court. Both courts have jurisdiction so this bill could not change that federal law. SENATOR OGAN pointed to language on page 5, line 26, and noted the legislation provides immunity to "any organization authorized to prevent, control, or suppress fires;". He asked if the authorization would come from the state Fire Marshall's office. MS. VOIGHTLANDER said she does not know the answer to that question. SENATOR OGAN said his concern is that a private property owner could authorize a neighbor to help fight a fire. He suggested adding the words "state recognized" before authorization. CHAIR SEEKINS suggested replacing "any organization" with the phrase, "the state or any subdivision thereof". SENATOR OGAN pointed out that he was the chief of a non-profit fire department and an outlaw fire department that was not recognized by the state Fire Marshall. The outlaw fire department was an ad hoc group of neighbors that bought a surplus truck. MS. VOIGHTLANDER noted that is a term of art that exists in AS 41. 15. 040, which is in the section that authorizes control and suppression of fires. She said it contains a "laundry" list of those who are authorized to control and suppress and uses the same term. SENATOR FRENCH referred to new language on page 4, lines 12 and 13, and read, "except when malice or reckless indifference to the interests, rights, or safety of others is shown by clear and convincing evidence." He said he sees that language as a check on the sweeping immunity this bill will grant. He explained his concern is that this bill not grant blanket immunity and contain some limit to immunity for poor decisions. MS. VOIGHTLANDER explained that exception exists in the existing statutory provision relating to civil defense. She said a problem always arises when exceptions are made to immunity statutes. An exception provides an opportunity for lawsuits to be filed, which are costly to the state. Given State of Alaska case law, it is extremely difficult to have civil cases disposed of summarily on summary judgment. Although exceptions may go some way in limiting liability, they do not serve the purpose of limiting exposure to civil litigation and the associated costs. SENATOR OGAN asked if clear and convincing evidence means the jury must be more than 50 percent sure. MS. VOIGHTLANDER said the general civil standard is preponderance, which is viewed as 51 percent. The Alaska Court System has characterized clear and convincing evidence as being highly probable. SENATOR OGAN asked if the bill will limit liability for negligence, but if malice or reckless indifference is involved, the evidence must prove that was highly probable. MS. VOIGHTLANDER said that is correct for the section that deals with civil defense. CHAIR SEEKINS informed members the committee would take up CSHB 245(JUD)(efd fld) the following day at 9:00 a.m. He then adjourned the meeting at 12:20 p.m.
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