Legislature(2003 - 2004)

05/12/2003 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                                                

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