Legislature(2003 - 2004)
05/12/2003 01:12 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.