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. GAIL VOIGTLANDER, (TESTIFIED VIA TELECONFERENCE), ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, ANCHORAGE, introduced CS HB 245 (JUD). The legislation will provide protection from tort lawsuits in four areas of governmental activity. The first is in the area of search and rescue: · Immunity from tort lawsuits for State and local government and their employees. She noted that there are approximately 400 search and rescues conducted each year in Alaska. · The Alaska State Troopers coordinate search and rescue activities using State and community resources. · That provision is addressed in Section 2 of the bill. The second area of governmental activity is in intra- military Tort Claims: · Bars tort actions for damages against the State and its employees by service members - there is no change to the entitlement to State workers compensation when on State duty and federal benefits when on federal duty. · Provides the State and its military personnel the same protection from tort lawsuits that the federal government and federal military personnel have under the Feres Doctrine and is consistent with the vast majority of states. The provisions are found in Sections 4 - 6 of the bill. · Acts of the organized militia unless the acts were in the line of duty while on active State service under AS 26.05.070. That provision is found in Section 3 of the bill. Both of those provisions 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. The third area of governmental activity would be the protection in Civil Defense: · Bars tort claims against the government, employees and authorized volunteers for damages sustained by a civilian defense worker, and do not affect the worker's or authorized volunteer's rights to State workers compensation. · Bars third party tort claims against the government, employees, and authorized volunteers for damages unless malice or reckless indifference is shown by clear and convincing evidence. · These provisions are found in Sections 7 - 10 of the bill. The final area of protection is the Fire Management and Fire Fighting Activities: · Amends two statutory sections to bar tort claims by third parties against the State, local government, other firefighting groups and their employees. · Every year the State Division of Forestry is called upon to respond to hundreds of fires throughout the State of Alaska. The change is necessary due to two Alaska Supreme Court cases holding that the State may be sued for firefighting activities. · Litigation disrupts Forestry's day-to-day operations and diverts substantial State resources to defend lawsuits. That provision is consistent with federal and common law practices in other jurisdictions that immunize those activities. The provision does not affect existing entitlement to workers compensation or the availability of federal or state disaster relief benefits. Representative Kerttula asked what the military would be able to sue for and what could the volunteers sue for. Ms. Voigtlander explained that military would not be able to sue under the tort case. They would be able to receive worker's compensation either through the State or through the federal government. The legislation avoids someone under federal orders and would be interpreted that military members could not sue the State for injuries to themselves. Ms. Voigtlander addressed the types of claims that volunteers could have. Representative Kerttula referenced Page 4, Lines 3-13, the defense activity. Ms. Voigtlander advised that was the civil defense portion of the bill. A civil defense worker would be covered by worker's compensation if they were an employee. Above and beyond that, there is a pre-existing statute that provides worker's compensation benefits to authorized volunteers if they are not otherwise on some worker's compensation role. The legislation bars a tort lawsuit by a volunteer civil defense worker and it would not affect any person's entitlement to worker's compensation. Representative Kerttula questioned the exception of "malice and reckless indifference" would allow. Ms. Voigtlander responded that would allow a lawsuit against the government or a government employee arising out of civil defense activities. Representative Kerttula commented that would be the plaintiff suing the government not the volunteer suing back. Ms. Voigtlander said that was correct. Representative Kerttula asked if there was any avenue left for a volunteer in any type of tort against the government. Ms. Voigtlander replied that the only area left for tort lawsuits would be if a third party was injured because of an act of the organized militia and that militia was serving on State orders. Then that claim would be allowed, as opposed to the person acting under federal orders. Regarding civil defense, the only area would be a third party liability. If that exception was shown for fire fighting and fire management activities, the legislation would bar all claims and there would be no exception. Co-Chair Harris referenced a National Guard case, which sued the State for a plane that crashed. Ms. Voigtlander advised that case involved a federal plane piloted by a federal pilot and that there was a lawsuit filed against the State. Representative Stoltze referenced Page 5, Lines 3 & 4, language regarding vaccinations. Ms. Voigtlander noted that vaccinations are voluntary. For those that volunteer for the vaccinations as part of their job, they would be covered through worker's compensation. There is medication to cover those that develop a bad reaction to a vaccination. Ms. Voigtlander reiterated that all vaccinations have been on a voluntary basis. Representative Stoltze inquired if they had been involuntary in the past. Ms. Voigtlander did not know. Representative Stoltze inquired if there would be an objection to adding an amendment to reference voluntary vaccinations. Co-Chair Williams pointed out that language currently exists in federal law. In response to Representative Stoltze, Ms. Voigtlander admitted that she did not know that much about the State's Public Health Program and crisis scenarios. . Representative Stoltze stated that he would pursue this concern at a later date. Representative Foster stated that it was not an option to get the shots when he was in the military. Co-Chair Harris agreed that the shots are not voluntary. DEAN BROWN, (TESTIFIED VIA TELECONFERENCE), DEPUTY STATE FORESTER, DIVISION OF FORESTRY, DEPARTMENT OF NATURAL RESOURCES, NOME, voiced how important the legislation is to the fire-fighting in the State. The Division of Forestry has the responsibility for all fire fighting in Alaska. Ms. Brown pointed out that they fight between 500-700 fires each year and that nearly 86% of those fires are human caused. Ms. Brown emphasized the importance of safety concerns and indicated that the bill not only addresses liability for local fire fighters but for the State fire crews. The legislation provides the State the same benefits enjoyed by the federal sector for tort immunity. Representative Foster MOVED to report CS HB 245 (JUD) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CS HB 245 (JUD) was reported out of Committee with a "do pass" recommendation and with zero note #1 by the Department of Law, zero note #2 by the Department of Natural Resources and indeterminate fiscal note #3 by the Department of Administration.