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." This was the first hearing for this bill in the Senate Finance Committee. Co-Chair Wilken stated that this bill, sponsored by the House Rules Committee at the request of the Governor, "limits civil actions arising out of claims and suits by members of the military service, organized militia and firefighters. The State's self-insurance program for tort liability exposures will be favorably affected by this legislation." GAIL VOIGHTLANDER, Assistant Attorney General, Department of Law, testified via teleconference from an off net location in Anchorage that this bill addresses liability for State and local governments and State and local government employees and volunteers who provide "important emergency services." Ms. Voightlander noted that State and local governments provide four different areas of emergency response, one being search and rescue. She informed that the Alaska State Troopers perform approximately 400 search and rescue operations annually. She emphasized this bill would provide immunity to the Troopers and other State and local employees and volunteers involved in these activities. Ms. Voightlander assured this legislation and the immunity it would provide, is consistent with Alaska Supreme Court case law regarding liability of public safety workers, and she listed examples. She stated this bill extends the provisions of public safety workers to include search and rescue operations in granting immunity against civil liabilities for negligent actions during an investigation. Ms. Voigtlander furthered that this bill also addresses "intra- military tort" and would clarify "what was muddied in an Alaska Supreme Court case in 2001" called Himsel versus the State of Alaska. She expressed that confusion had long existed as to the "various hats ? the Alaska National Guard might wear in any given occasion," and opined that this case further "blurred the distinction" as well created uncertainty regarding the responsible party defending against claims made arising from National Guard activities. She stated that this legislation provides that members of the Alaska National Guard, if injured while operating under State orders, would be covered under the State's workers compensation program, and if injured while operating under federal orders, would be provided workers compensation and other benefits by the federal government. She pointed out that members of the Alaska National Guard mostly operate under federal orders. Ms. Voightlander continued that the Himsel vs. State decision also resulting in the allowance of the military to "sue one another" for civil damages. She reported that all but two other jurisdictions in the U.S. follow the Feres Doctrine, which determines that it is poor public policy to allow members of the military to sue officers, fellow military members and employers for military activities. She remarked that to allow an individual to give an order, yet hold that individual liable for civil actions as a result of giving that order is detrimental to the military command structure. She also remarked that public policy should not allow civilian courts to interject with military operations and orders. She stated this legislation would reestablish the Feres Doctrine in Alaska. Ms. Voightlander stressed this portion of the legislation is not a "change", but rather is in response of the Himsel vs. State ruling. She informed that the Feres Doctrine had been the "long standing rule" and that no lawsuits had been filed against the State due to the awareness of the Doctrine and the understanding that it applied to Alaska. She pointed out that the National Guard is comprised of both State and federal employees "providing services under a variety of orders". Ms. Voightlander listed the third subject of this legislation as civil defense. She referenced Title 26. Immunity for Civil Defense Activities., in Alaska State Statue, and stated this bill would "continue" that immunity, although it provides "slightly higher standards for the one exception when lawsuits are allowed in the area of civil defense. She noted that civil defense activities in Alaska are primarily responses to natural disasters, including earthquakes and floods. She said these events normally involve State and local governments and employees and volunteers. She stated that this provision of the bill would "immunize" not only the governments, but also the employees and volunteers providing "vital emergency services." Ms. Voightlander concluded with the provisions for firefighting activities contained in this legislation. She informed that it had been understood that the State could not be sued for these activities; however, the Alaska Supreme Court in 2001 ruled in two cases relating to the Miller's Reach Fire, that the State could be sued for "certain aspects of firefighting activities". This bill, she stressed, would provide immunity to State and local "responders" and to volunteers, "all who conduct firefighting operations in the State of Alaska", to allow them to perform emergency responses. She surmised this would permit those personnel to make emergency decisions without the threat of lawsuits filed against themselves individually or their employers. Ms. Voightlander pointed out that workers and volunteers defending themselves against a lawsuit are subsequently unavailable for public safety activities during times of court appearances, and related appointments. Ms. Voightlander informed that the State and federal employees and volunteers, are covered by workers' compensation insurance in the event they are injured during the performance of their duties. She noted workers' compensation is a "no-fault system" in which attorneys are not necessary for an injured employee to assert rights and to receive compensation. Ms. Voightlander stated this legislation would bring Alaska into compliance with other Western states and the U.S. Ninth Circuit Court of Appeals rulings that holds that firefighting activities are immune. Senator Taylor asked about the plaintiff in Himsel vs. State why the suit was brought. Ms. Voightlander shared that Major General Kenneth Himsel served in the Indiana National Guard and was stationed in Alaska. She said the lawsuit arose from a plane crash near Juneau of a federal plane piloted by a member of the federal National Guard transporting several members of the Alaska National Guard who were in Active Guard Reserve (AGR) status, in which there were no survivors. She explained this status was categorized as a federal status in which members received federal benefits and in this instance the spouses and dependent children did receive benefits from the federal government following the crash. This lawsuit, she stated, argued whether the mission was State or federal, and the Alaska Supreme Court, in rejecting the Feres Doctrine of whether injuries arose as a result of military service, substituted a "new test" the "uniquely military test." She updated that this lawsuit was settled for $7.5 million with the State portion of that amount $2.75 million and the remainder paid by insurance the State no longer carries. Senator Taylor asked about the other passengers on that flight. Ms. Voightlander indicated that General Carrol [spelling not specified] was on that plane and was the only individual involved who was "clearly a State employee" and therefore his estate was not included in the lawsuit. She was unaware whether the General's spouse wanted to participate in the suit, but noted that the acceptance of State workers compensation benefits precluded such actions. Senator Taylor asked if the other passengers were members of the military. Ms. Voightlander affirmed and reiterated that Major General Kenneth Himsel was a member of the Indiana National Guard, the pilot was considered a federal employee and the co-pilot and other passengers, excluding General Carrol, were members of the Alaska National Guard in AGR status. She stated that receipt of federal benefits prohibited the estates from recovering from the federal government, although it did not bar them from pursuing remedy against the State of Alaska. She noted such attempts would be barred under the Feres Doctrine. Senator Taylor asked how the State was ruled liable for an event involving a federal plane piloted by a federal employee. Ms. Voightlander replied that the Alaska Supreme Court ruled on the question as to whether the mission was federal or State and whether the pilot was a "borrowed servant" from the federal government, necessitating that the State be liable for the pilot's actions. Senator Taylor and Ms. Voightlander continued to discuss the merits of this case with Ms. Voightlander summarizing that the State decided to settle the case following the initial trial court ruling and after analyzing the strengths and weaknesses and the probable cost of extended litigation. She addressed Senator Taylor's concern that the matter was never decided by the Alaska Supreme Court, by emphasizing that because the Feres Doctrine was dismissed, its provisions were invalid and subsequently the State was not immune. Senator Taylor next addressed Section 2 relating to civil immunity, which stipulates that "a person may not bring a civil action for damages against the State political subdivision?[for the] results of an action or a mission for performing or failing to perform activities or duties authorized" under AS 18.60.120 through 175. He asked for a summary of these statutes. Ms. Voightlander responded that these statutes relate to search and rescue operations, and stipulate the funding and authorized participation in those activities. Senator Taylor asked if this provision would grant immunity to Alaska State Troopers, and other State and local government employees. Ms. Voightlander affirmed this would apply to all parities participating in search and rescue operations including volunteers and agents. Senator Taylor clarified this legislation would provide blanket immunity for all related activities regardless of recklessness or gross negligence. Ms. Voightlander affirmed there would be no exemptions. Senator Taylor asked if this portion of the legislation was precipitated as a result of the lawsuit relating to the death of an elderly couple and their grandchild, and the Alaska State Troopers failure to conduct a search and rescue operation for those stranded travelers. Ms. Voightlander answered that a couple of lawsuits have been filed against the State on this matter, including the situation Senator Taylor indicated that involved a family traveling on the Denali Highway after it had been closed for the winter. She stated this trial resulted in a judgment against the State. She qualified that family members reported that the travelers were located in the Kenai area and search and rescue operations were conducted in that area. She said it was only later learned that the travelers could be on the Denali Highway, at which time weather conditions were 45 degrees below zero. Senator Taylor asked the judgment rendered against the State. Ms. Voightlander told of the rulings and appeals process of this case. SFC 03 # 102, Side B 07:23 PM Ms. Voightlander continued that if the State does not ultimately prevail, the total judgment would be over $7 million incorporating the findings that the State shared 50 percent of fault and the travelers' negligence contributed 49 percent of fault. Senator Taylor surmised that as a result of this lawsuit, blanket immunity would be granted, regardless of whether State employees act negligently, recklessly, grossly negligently or intentionally. Ms. Voightlander again affirmed. She noted that in addition to this case, another lawsuit was filed against the State that involved decisions about whether to instigate a search and rescue operation from one village or another village, and in which manner the operation should proceed. Senator Taylor asked the result of that suit. Ms. Voightlander responded that a settlement was reached in this case. Senator Taylor asked if therefore the State admitted wrongdoing. Ms. Voightlander explained that in any civil litigation, weight is given to possible verdicts, potential damages that could be awarded and appeal costs. She stressed that settlements do not include admission of liability. Senator Taylor asked the settlement amount. Ms. Voightlander answered approximately $250,000. Senator Taylor again spoke to negligence or gross misconduct of a State employee resulting in damage to another party that would not be subject to civil actions. Ms. Voightlander emphasized this legislation "represents an enunciation of public policy" that allows parties involved in search and rescue operations to make the best decisions at the time for the safety of workers and those being rescued, without concern for possible civil liability actions. Senator Taylor noted the absence of language in this Section specifying immunity would apply to volunteers. He identified "public employees who are salaried and paid by the State or a political subdivision" and therefore argued, "it's a nice emotional argument" to suggest "some poor volunteer might get sued"; however, the provisions only applies to "our employees doing negligent acts that cause damage or death." Ms. Voightlander corrected that volunteers "covered under the agents principal" and are considered agents of the State. Senator Taylor asked if volunteers were sued in the two aforementioned cases. Ms. Voightlander answered no. Senator Taylor directed attention to Section 7, which specifies employees and authorized volunteers and includes an exception from immunity for malicious actions or reckless indifference to the rights of others or safety of others. He asked why this language is not included in Section 2. Ms. Voightlander replied that this section amends existing statutes and adds a "clear and convincing" standard. She informed that the exceptions are not included in other sections of the bill due to the high cost of defense against lawsuits. She emphasized the intent of this bill is to not distract from search and rescue activities. Senator Taylor next surmised that the language relating to civil defense in Sections 8 and 9 mirrors federal language relating to homeland security, specifically in granting civil immunity to those administering vaccinations. Ms. Voightlander replied that Section 9 provides immunity for the activity of administering vaccinations; however she pointed out that existing programs provide funds for people injured as a result of adverse reactions to vaccinations. Senator Taylor understood such programs exist to provide relief from adverse reactions resulting from specific vaccinations, although this legislation would apply to all vaccinations. He opined that statistically all vaccination programs would result in an adverse reaction to some recipients. Co-Chair Green referenced the definition of "civil defense" provided in Section 9 amending AS 26.20.200(1) on page 4, line 31, through page 5, lines 1 9 as follows. (1) "civil defense" means the protection and defense of the civilian population by the organized efforts of the residents of the state other than those in the military service, and includes without limitation, fire fighting, policing, rescue, air raid warning, security, communications, medical service, vaccination and other actions to protect public health, transportation, evacuation of persons, welfare aid, guard duty, anti-espionage and anti-sabotage service, construction of temporary housing and bomb proof shelters, [AND] any other service necessary for the protection of and aid to the public not normally furnished by the military services, and training, preparation, travel, and other activities necessary for the provision of the services described in this paragraph; New Text Underlined [DELETED TEXT BRACKETED] Co-Chair Green understood this language clarifies that the immunity would not apply to all vaccinations, but rather those administered for the purpose of civil defense. Senator Taylor surmised Co-Chair Green's assertion to be correct, although the language is "quite broad" in the parties included. Senator Taylor then asked if this legislation would prevent parties from filing suit against the State for incidences similar to those arising from the Millers Reach fire. He opined that the system operated correctly in this instance, as well as all such instances, in that the case was brought and the court ruled that the State was not at fault. He asked the reason to amend the existing provisions. Ms. Voightlander indicated this legislation addresses the matter in Sections 11 and 12 related to firefighting activities. She asserted this legislation is necessary to affirm public policy factors. She informed that the cost of this litigation is high, in that these activities remove employees from their regular jobs to defend against civil litigation, in addition to defense costs. She listed the legal expenses of the Millers Reach Fire litigation at $2.5 million to date. She reiterated that this legislation would hold Alaska consistent with other Western states and with case law that holds firefighters immune. She expressed that response to emergency situation requires discretion and judgment decisions. Senator Taylor asked whether property owner could seek damages in the event of a disaster when gross negligence of State employees could be demonstrated. Ms. Voightlander responded that property owners would be unable to sue for damages. Senator Taylor clarified that no exceptions would be allowed for instances of gross negligence, reckless disregard of human life, and intentional conduct. Ms. Voightlander affirmed. She qualified that if an employee or agent's actions "rise to the level of violating a federally guaranteed constitutional right" the individual has the "remedy of filing either in federal or State court under 42 USC Section 1983". Senator Taylor noted the aforementioned federal statute pertains to civil rights. He asked if the intent of Sections 11 and 12 is to allow parties to seek damages under civil rights laws. Ms. Voightlander responded that these sections would immunize the State and local governments and employees in fire fighting activities. She pointed out that the existing AS 09.65.070 provides immunity to local firefighters. Senator Taylor asked if any conditions or exceptions are provided in the aforementioned statute relating to local firefighters. Ms. Voightlander answered no. Co-Chair Wilken asked if the witness recognizes a need for qualifiers in event of gross negligence, such as exampled by Senator Taylor. Ms. Voightlander responded that providing exceptions and qualifiers, requires the State to incur defense expenses even if successful against lawsuits. She informed that Alaska law provides that a civil trial could be decided summarily without a trial only if "no genuine issues of material fact" are demonstrated. She stated that the standards for summary judgment are set "very high in Alaska" and that cases are increasingly "having to go to trial". She furthered that case law provides that "even when people agree that there is not a fact issue," different jurors "may have different views as to the inferences to derive from those facts." DEAN BROWN, Deputy Director, Division of Forestry, Department of Natural Resources testified via teleconference from an off net location about the impact this legislation would have on forestry operations. She pointed out the major function of the Division relates to wildland fire fighting. She spoke to increasing wildland urban interface concerns as more people move into wooded areas, and she noted that during a fire season, approximately 86 percent of fires are human caused. During the spring season, she furthered, virtually 100 percent are human caused and are located primarily in the main roaded area of the State and remarked that the number of springtime fires is increasing and occurring earlier in the year. Ms. Brown expressed concern over the impact that litigation has on firefighters, who are typically seasonal workers for three to five months annually and are trained to national standards. She stated these firefighters make critical life and death decisions involving fires varying from minor campfires to major fires. She stressed the importance that "their mind be 100 percent on that job" without concern for the consequences of actions taken in the performance of duties. Ms. Brown told of employees fighting fires in the Mat-Su area that occurred during windstorms in February 2003. She informed that many of these firefighters fought fires in the evenings and until 5:30 am and then appeared in court at 8:00 am for daylong proceedings related to the Millers Reach Fire lawsuit. Ms. Brown also pointed out that federally employed fire fighters are immune from civil litigation and that in many instances State, federal and locally employed fire fighters are involved in the same operations. She reiterated the U.S. Ninth Circuit Court of Appeals verdict upholding the immunity of government public safety employees. Co-Chair Wilken gave a hypothetical situation of firefighter under the influence of drugs, responding to an emergency call and hitting a child with a fire truck, killing the child. He asked if that firefighter would not be held liable in this instance based on the decision to use drugs "on the job. Mr. Brown informed that the Department has a "strict" policy against alcohol and drug use and employment of the hypothetical firefighter would be "terminated immediately." Co-Chair Wilken commented this would not "bring the child back". Senator Taylor noted that Sections 11 and 12 relating to "fires authorized to be preformed" cite different statutes: AS 41.15.010 and AS 41.17.080. He asked why two "identical immunity provisions" are necessary. Ms. Voightlander replied that AS 41.15, cited in Section 11, relates to forests and provides to firefighting activities, and AS 41.17, cited in Section 12, relates to administration and management. She explained that under both chapters, the Division of Forestry is authorized to conduct firefighting activities. Senator Taylor understood general State policy on liability, exampling that the Legislature could not be sued for its decisions, and the Department of Transportation and Public Facilities could not be sued for decisions made regarding the location of a highway, as those decisions are considered discretionary. However, he noted that the Department of Transportation and Public Facilities could be held liable for administrative actions, such as failure to safely maintain roadways or otherwise warn the public of the dangers. He surmised that a threshold exists in which the State becomes liable for its actions. He asked for clarification of the activities for which the State could be sued. Ms. Voightlander agreed with Senator Taylor's assertion that AS 950.250 stipulates that discretionary decisions are not subject to liable, although once decisions are made the State could be sued for the manner in which activities are conducted. Senator Taylor indicated he has many other questions. Co-Chair Wilken asked the witness to reply to the scenario he earlier posed involving a firefighter under the influence of drugs. Ms. Voightlander responded that under existing law AS 965.070, "an action for damages could not be made against an employee or member a fire department if the claim is for a tort and is based upon the act or admission of the member of the fire department in the execution of a function for which the department is established." Therefore, she stated that an injured party would be barred from filing suit in the aforementioned instance. Senator Olson asked, as a matter of public policy, how the State provides adequate oversight to ensure quality search and rescue operations. Co-Chair Wilken requested the question be held. Co-Chair Wilken ordered the bill HELD in Committee. AT EASE 7:56 PM / 7:57 PM