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