[1994/oagheade.htm]

OAG 94-16

March 8, 1994

Maj. Gen. Robert L. DeZarn

Adjutant General

Kentucky National Guard

Department of Military Affairs

Boone National Guard Center

Frankfort, Kentucky 40601-6168

Re: Volunteer Engineers in Post-Earthquake Disaster Assessment, Questions Concerning Liability and Workers Compensation Insurance.

Dear General DeZarn:

By letter of April 29, 1993, you have posed several questions that have arisen in connection with the efforts of the Department of Military Affairs, Division of Disaster and Emergency Services (DES), working in cooperation with the Kentucky Society of Professional Engineers, to develop a system for post-earthquake assessments of damaged structures.

As explained, in substance, in your letter, engineers would be recruited who would agree to work on a volunteer basis to help officials determine, after a major quake, which structures need to be barred from use, or, alternatively, opened for normal business. DES would train such persons in rapid post-quake inspection methods, and would organize them into teams for emergency activation following a damaging earthquake. Their names would be placed in a database to facilitate their activation. The individuals in question would be asked to join a local DES organization as volunteers to formalize their involvement with emergency services agencies in the state.

You pose four questions related to the factual circumstances described in your letter which we have restated below.

(1) Under the circumstances described, will KRS 39.433(1) and (2) exempt the volunteer engineers from liability during the normal course of their duties in emergency volunteer status?

(2) If a volunteer engineer were to be sued as a result of any action he or she took during the normal course of duties in emergency status, will the Office of Attorney General act as defense counsel for the volunteer engineer?

(3) Will these volunteer engineers be covered by worker's compensation under KRS 39.770, and do they need to enroll in advance of any disaster as provided in KRS 39.770(5)?

(4) In the event that private property is accidentally damaged or destroyed during the emergency service of such a private engineer, would the owner of that property have legal recourse with the State Board of Claims to recover his or her loss?

First, a note of caution regarding a request for an opinion concerning whether one is statutorily exempt from liability for damages claimed done to another or another's property. Whether one might be exempt from liability pursuant to a statutory enactment is a tenuous call given the status of the law concerning such enactments. It should be recognized that such statutes are subject to attack, and even if a grant of immunity from liability is upheld, substantial costs may be incurred in defending a claim. Further, whether statutory immunity applies may turn on subtle factual distinctions in a given circumstance.

1. Liability of Volunteer Engineers

KRS 39.433(1) is extraneous to whether volunteer engineers would be exempt from liability during the normal course of their duties in emergency volunteer status under the program described in your letter. That statute establishes certain exemptions from liability to any person appointed or acting as a volunteer disaster and emergency services or disaster and emergency response worker. It does not address a volunteer's possible exemption from liability.

KRS 39.433(2), however, purports to provide an exemption from liability under certain circumstances that would apparently be applicable to a volunteer engineer under the program described in your letter. It states:

Neither the state nor any political subdivision of the state nor, except in cases of willful misconduct, gross negligence, or bad faith, the employees, agents or representatives of the state or any political subdivision thereof, nor any volunteer or auxiliary disaster and emergency services or disaster and emergency response worker or member of any agency engaged in any disaster and emergency services or disaster and emergency response activity, complying with or reasonably attempting to comply with KRS 39.400 to 39.460 and 39.990, or other precautionary measures enacted by any city of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of any such activity.

(Emphasis added.)

The statutory language quoted above purports to establish an exemption from certain liability, except under the circumstances expressly indicated, for a "disaster and emergency response worker" which would presumably encompass a volunteer engineer under the program described in your letter.

The difficulty is, however, that such statute is, in our view, violative of sections 14, 54, and 241, of the Constitution of Kentucky, to the extent it would relieve certain persons and entities from liability for negligently causing the death of, or injury to, another person, or the loss of, or damage to the property of another. For the basis of this finding see Happy v. Erwin, Ky., 330 S.W.2d 412, 413 (1959), Gould v. O'Bannon, Ky., 770 S.W.2d 220, 222 (1989), Board of Trustees of U. of Ky. v. Hayse, Ky., 782 S.W.2d 609, 614, 615 (1990), and, Ashby v. City of Louisville, Ky., 841 S.W.2d 184, 188, 189 (1992). And see, Opinion of the Attorney General (OAG) 79-535, 81-94, and 91-89. OAG 92-3 is modified to the extent it would conflict with the view expressed here regarding KRS 39.433(2).

2. Representation by Attorney General's Office

Regarding whether the Office of Attorney General would act as defense counsel for a volunteer engineer sued as a result of action he or she took in the normal course of duties in emergency status, the likely answer is no.

Under the facts you have described, it does not appear that a volunteer engineer would be considered a state employee. Accordingly, the Attorney General would not have statutory authority (see KRS 12.211, et. seq., and KRS 15.020) to represent a volunteer engineer under the program as we understand it from your letter.

The specific facts of a given circumstance might, however, change this answer, e.g., if a state interest were shown in a given circumstance. See OAG 62-883, and OAG 78-31.

3. Workers' Compensation Questions

Regarding whether the volunteer engineers concerned here will be covered by Workers' Compensation under KRS 39.770, and whether they need to enroll in advance of any disaster as provided in KRS 39.770(5), we look to the specific statutory language involved.

KRS 39.770 provides, in part pertinent here:

Local disaster and emergency services organizations, or individuals, or organizations or individuals associated therewith, or rescue squads or members thereof or associated therewith for the purposes of receiving workers; compensation benefits paid by the Department of Military Affairs, shall be covered by such benefits when performing emergency preparedness, response, or recovery functions, with the following limitations:

* * *

(5) No person shall be covered unless enrolled on a workers' compensation enrollment form and filed with the disaster and emergency services area coordinator, except when the magnitude of an emergency is so great that a local disaster and emergency services director must solicit additional workers. At such times, the director may develop and maintain a list of workers, to include names, social security account numbers, missions assigned, and dates covered and submit a copy of such list to the disaster and emergency services area coordinator within twenty-four (24) hours of the conclusion of the emergency.

(Emphasis added.)

The first quoted part of KRS 39.770 (above) provides, in part, in relation to workers' compensation benefits, that individuals who are associated with a local Disaster and Emergency Services (DES) organization shall be covered by such benefits "when performing emergency preparedness, response, or recovery functions." Certain limitations are set out which are not applicable to the volunteer engineers you have asked about. Your letter indicates, with respect to the volunteer engineers: "We also plan to ask them to join a local DES organization as volunteers in order to formalize their involvement with the emergency services agencies in the state."

If the volunteer engineers in fact "join" a local DES organization, they would thus be "associated" with such agency within the language of the first part of KRS 39.770, and would be covered by workers' compensation for the purposes expressed therein, if the enrollment or listing requirements set forth in KRS 39.770(5) are met.

With regard to whether the volunteer engineers need to enroll in advance of a disaster (in order to be covered by workers' compensation), the answer, in our view, is yes, unless they are solicited as "additional workers" in connection with an emergency of a magnitude so great as to require solicitation of additional workers, as provided in subsection (5). Stated another way, in our view KRS 39.770(5) envisions enrollment of some persons prior to a disaster, but also provides for coverage, by post-event listing, for "additional workers" who must be solicited because of the magnitude of a given disaster.

4. Board of Claims Question

On the question (in substance) of whether an owner of private property accidentally damaged or destroyed during the emergency service of a volunteer private engineer, under the program you have described, would have recourse in the Board of Claims, we cannot provide a definitive answer. This is because the exact facts related to a claim of liability are not known.

The Board of Claims, as provided by KRS 44.070, is empowered, in part pertinent here, to:

[C]ompensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth, any of its cabinets, departments, bureaus or agencies, or any of its officers, agents or employees while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies . . . .

(Emphasis added.)

As we understand it from your letter, your agency plans to ask the volunteer engineers here involved to "join a local DES organization." It is thus not clear that such volunteers would be considered agents or employees of an agency of the Commonwealth. KRS 44.070. Accordingly, it is doubtful that the Board of Claims would be a proper forum for one whose property was accidentally damaged during the emergency service envisioned.

The specific wording of your fourth question is very broad. It is not clear from the wording of the question that the damage or destruction referred to is limited to that occurring as a "proximate result of negligence of an agent of an agency of the Commonwealth," so as to possibly be within the purview of the Board of Claims, even if it were established that a volunteer engineer is an agent of the Commonwealth.

Copies of the court decisions, and the opinions of the Attorney General, cited in this opinion are enclosed for your information.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General