[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
GOOD SAMARITAN VOLUNTEER FIREFIGHTER ASSISTANCE ACT OF 2003, THE
NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2003, AND THE
VOLUNTEER PILOT ORGANIZATION PROTECTION ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.R. 1787, H.R. 3369, and H.R. 1084
__________
JULY 20, 2004
__________
Serial No. 107
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
94-918 WASHINGTON : 2004
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
C O N T E N T S
----------
JULY 20, 2004
OPENING STATEMENT
Page
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress From the State of Wisconsin, and Chairman, Committee
on the Judiciary............................................... 1
The Honorable John Conyers, Jr., a Representative in Congress
From the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
Chief Philip C. Stittleburg, Chairman, National Volunteer Fire
Council
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Robert F. Kanaby, Executive Director, National Federation of
State High School Associations
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Mr. Edward R. Boyer, P.E., President and CEO, Mercy Medical
Airlift, and Vice Chairman, Angel Flight America
Oral Testimony................................................. 12
Prepared Statement............................................. 14
Mr. Andrew F. Popper, Professor of Law, American University and
Washington College of Law
Oral Testimony................................................. 17
Prepared Statement............................................. 19
APPENDIX
Material Submitted for the Hearing Record
Statement of the Honorable Michael N. Castle, a Representative in
Congress From the State of Delaware............................ 37
Statement of the Honorable Ed Schrock, a Representative in
Congress From the State of Virginia............................ 37
Statement of the Honorable Mark Souder, a Representative in
Congress From the State of Indiana............................. 38
GOOD SAMARITAN VOLUNTEER FIREFIGHTER ASSISTANCE ACT OF 2003, THE
NONPROFIT ATHLETIC ORGANIZATION PROTECTION ACT OF 2003, AND THE
VOLUNTEER PILOT ORGANIZATION PROTECTION ACT
----------
TUESDAY, JULY 20, 2004
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order.
Good morning.
The Committee on the Judiciary is holding a legislative
hearing today on three bills: H.R. 1787, H.R. 3369, and H.R.
1084.
Each of these bills are intended to remedy specific
liability problems in particular areas of volunteer and non-
profit activities. I would like to thank the sponsors of these
bills: Representative Mike Castle of Delaware, Representative
Mark Souder of Indiana, and Representative Ed Schrock of
Virginia, respectively. They are to be praised for their good
work on legislation designed to protect and encourage those who
do so many good works.
The overall objective of today's hearing is to explore the
effects of liability fears on volunteer and non-profit
organizations generally and on whether Congress might provide
appropriate legal relief that will encourage activities which
benefit society. An even broader theme of this hearing and a
central concern of this Committee is how institutions that are
vital to the functions of a decent society, such as the
volunteer and non-profit organizations before us today, have
been damaged by the development of the lawsuit culture.
The witnesses before us today will describe some of the
specific failings of our civil justice system because they,
their organizations, or those they serve have been the direct
victims of it. But in a larger sense, all Americans have
already been victimized by the lawsuit culture. The economic
consequences of the lawsuit culture are severe, but pale in
comparison to the overall societal cost. The lawsuit culture
has already fundamentally altered the behavior of average
Americans without their ever making a conscious choice in the
matter. It pervades our thinking and has changed who we are and
what we do, and not for the better.
In the lawsuit culture, teachers are afraid to teach or
discipline students; doctors are afraid to practice medicine;
recreation departments are so afraid of liability that they
remove standard playground equipment, happily enjoyed by
millions of children for decades. And as we will hear today, in
the lawsuit culture volunteer organizations and those who give
time and resources to them are increasingly fearful of legal
exposure that might arise from their efforts to help others.
It is difficult to quantify the overall damage to American
society done by the lawsuit culture, but easy to see the
results anecdotally and in our own changed thinking. Philip
Howard recently catalogued these consequences in his thought-
provoking book ``The Collapse of the Common Good.'' Mr. Howard
observed that the law is supposed to be an instrument of
freedom, allowing us to act freely, confident that the law will
defend reasonable conduct. ``By letting everybody know where
they stand, law liberates people to make free choices,'' writes
Howard. But instead of law providing freedom today, Mr. Howard
notes, and I quote, ``Social relations in America, far from
being steadied by law's sure hand, are a frayed tangle of legal
nerves. Any dealings in public, whether in hospitals, schools,
offices, or in the ebb and flow of daily life, are fraught with
legal anxiety. An undertow pulls at us constantly, drawing us
away from choices we think are reasonable. Legal fear has
become a defining feature of our culture.''
How can we restore personal responsibility in the law as
the guardian of freedom rather than a subconscious, pervasive,
paralyzing fear of all risk? Perhaps what is most in need of
fundamental change is our own perception of the law as a system
of individual rights disjoined from any conception of fairness
to society as a whole.
As Mr. Howard again writes, ``Law serves a social function
as well as an individual one. The social function used to be
considered its main function. The rule of law was the main
concern of our Founders, but not because they were expecting
America to sue its way to greatness.''
We can take a small step today in restoring that balance of
social function of the law by examining the deterrent effect
that legal fear is having in some very specific areas that
otherwise benefit society. By curbing the worst excesses of the
lawsuit culture, Congress can do something to see that
volunteer firefighters are better equipped without spending a
dime of the taxpayers' money. We can make sure that those who
teach our children sports are more concerned about fair play
and good sportsmanship than their insurance rates or getting
sued. And we can ensure that volunteers who give of their own
time and resources to transport ill patients hundreds of miles
for life-saving medical treatments concentrate on flying planes
instead of hiring a defense team.
It's hard to imagine today, but there was a time in the not
too distant past when no one in our society would have
considered bringing a lawsuit for an accident against some
charity seeking to do good. We must keep in mind that the
lawsuit culture is a fairly recent departure from our
traditional legal foundation. It does not have to be a
permanent departure, and the rational changes we seek should
not be viewed as new or radical or impossible but, rather, as a
return to legal normalcy.
I thank the witnesses before us today and look forward to
their testimony. And I also look forward to America's swift
return to making judgments based upon what's right rather than
upon fear of legal risk.
I now recognize the gentleman from Michigan for his opening
statement.
Mr. Conyers. Thank you, Chairman Sensenbrenner. I take this
opportunity to welcome the witnesses, in particular, Professor
Popper, who has been before the Judiciary Committee before on
this and related matters.
It's true that there are people that are afraid of lawsuits
in America. But it may not be true that teachers are afraid to
teach. It may not be accurate to say that doctors are afraid to
practice medicine. And it may be misconceived that people doing
good are afraid to do good because they are afraid that they
may be held accountable for negligent acts that might flow out
of their doing good.
So we begin with the appreciation of all those that help--
the firefighters, the good Samaritans, the athletic
organizations, the volunteer pilots. But the question is: Is
this a Federal matter to determine the liability of, say, a
fire department? We now are deciding that the State laws and
the local laws are insufficient and it's very important that
the national legislature weigh in on this.
I must say that in my entire career in the Congress, I have
never received--not just I have not received any letters, I
have never been advised by any of these organizations about any
problem they've had in terms of being sued or having to go into
court or having to litigate.
So I wonder if this is--is this a real monster we are
attacking, or is it a continuation of the limiting of the
rights of people who seek redress in a system which is rife in
many instances with abuses which are uncorrected? Are we trying
again to limit recovery? Are we trying to make it as hard as
possible for those who do have a meritorious claim to come
before the court? Or is this preparation for Lawsuit Abuse Week
that our distinguished leader, Tom DeLay of Texas, has declared
will happen in September when we come out of the August recess,
in which all of these things will be orchestrated to form a
part of this continuing assault on the legal system as if
judges and State legislatures don't have the same good, common
sense that we have?
I'd like to ask the Chairman of the Committee, Mr. Smith,
whether or not there have been Subcommittee hearings on, let's
see, one, two, three measures that are being brought all
together before us to the full Committee this morning, and I
would yield to the gentleman.
Mr. Smith. I thank the gentleman for yielding. To my
knowledge, there has not been a Subcommittee hearing, but if I
were the gentleman, I would be impressed by the fact that we're
having a full Committee hearing on these three particular
pieces of legislation.
Mr. Conyers. Well, do you plan to hold----
Mr. Smith. I think that is the----
Mr. Conyers. Do you plan to hold any Subcommittee hearings?
Mr. Smith. That is not my decision, Mr. Conyers.
Mr. Conyers. Okay. Well, was it your decision to skip the
Subcommittee hearings? And I yield to the gentleman.
Mr. Smith. Well, I think there is good reason to do so
because I think this points out the importance of the
legislation to the Chairman and to the full Committee that we
would have a hearing by the full Committee and not just limit a
hearing to the relevant Subcommittee. So I think today's
hearing is going to be a good one and very instructive for all
of us.
Mr. Conyers. Well, then, why don't we just eliminate
Subcommittees and hold everything at the full Committee if
everything's so important?
By the way, I will be looking--and I ask our distinguished
witnesses to please produce any empirical evidence, studies,
lawsuits that have come to your attention that require action
on not only this bill but on three completely--not completely
different, but three similar bills to protect the firefighters,
to assist athletic organizations, and to help volunteer pilots
against litigation. If you have any studies, if you know
anything about this, because I must say, only when you come
before me am I told that this is a pressing problem, or is it
because the distinguished Majority Leader Tom DeLay of Texas
wants to aggregate all of these hearings in a Lawsuit Abuse
Week? I'm not quite sure what it is we're trying to do here.
I thank the Subcommittee Chairman.
Mr. Smith. [Presiding.] Thank you, Mr. Conyers.
Without objection, all Members' opening statements will be
made a part of the record, and I will proceed to introduce the
witnesses.
Our first witness on the panel this morning is Chief Philip
C. Stittleburg, of the great State of Wisconsin. He has been
Chairman of the National Volunteer Fire Council, NVFC, since
2001. Chief Stittleburg joined the Volunteer Fire Service in
1972 and has served as Chief of the LaFarge, Wisconsin, Fire
Department for 27 years. He is also Legal Counsel to the NVFC,
the LaFarge Fire Department, and the Wisconsin State
Firefighters Association, and has represented the NVFC on
numerous National Fire Protection Association standards-making
committees, including ones that set industry standards on
firefighter health and safety. He served as the NVFC Foundation
President for 12 years, and just recently completed his second
term on the NFPA Board of Directors.
Chief Stittleburg earns his livelihood as an attorney, but
we won't hold that against him on this Committee. His legal
career includes serving as an Assistant District Attorney on a
half-time basis for the last 30 years. Welcome, Chief
Stittleburg.
Our next witness is Robert F. Kanaby, the Executive
Director of the National Federation of State High School
Associations. Before serving as Executive Director of the
NFSHS, he spent 13 years as the Executive Director of the New
Jersey State Interscholastic Activities Athletic Association
and 19 years in the public schools of New Jersey. Mr. Kanaby
has been instrumental in creating a stronger national presence
for the NFSHS, stressing citizenship issues in high school
activity programs and imparting the values of respect and
sportsmanship in high school sports lesson plans. Mr. Kanaby is
also a member of the board and Executive Committee of USA
Basketball and the Board of the Naismith Basketball Hall of
Fame. We welcome you as well, Mr. Kanaby.
Our third witness is Andrew F. Popper. Mr. Popper is a
tenured full professor at American University and Washington
College of Law in Washington, D.C. He teaches torts, product
liability, administrative law, and a seminar in government
litigation. In 1996, he was honored nationally as the recipient
of the American Bar Association Robert B. McKay Award for
Excellence in Tort Law. In 1999, he was named University
Teacher of the Year. He has served as Chair of the
Administrative Law Section of the Federal Bar Association and
was Vice Chairman of the ABA Committee on Government Relations
Section on Legal Education and Admission to the Bar. Professor
Popper is the author of more than 100 published articles,
papers, and public documents.
I am now going to recognize the gentleman from Virginia,
Mr. Forbes, to introduce our last witness.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Chairman, I'm honored to introduce the final member of
our panel today, Edward R. Boyer of Virginia Beach, VA. Mr.
Boyer is a retired senior career Federal employee with 29 years
of service at the U.S. Department of Health and Human Services
and 44 years as a pilot in single- and multi-engine aircraft.
Mr. Boyer has served in various capacities in the military,
from an active-duty Army officer responsible for the Advanced
Nike Air Hercules Air Defense System to an Air Force civilian
employee managing the design and construction of U.S. air
bases. Mr. Boyer is the founder of Mercy Medical Airlift, a
charitable medical air transportation system, and Angel Flight
America, a public benefit aviation program that offers no-cost
access for ill patients to distant, specialized medical
evaluation, diagnostic, and treatment centers.
Mr. Boyer, it's a pleasure for us to have you with us this
morning.
Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Forbes.
Let me swear in the witnesses, and if you all would stand
and raise your right hand.
[Witnesses sworn.]
Mr. Smith. Thank you all. Please be seated.
Let's see. Chief Stittleburg, if you'll proceed, we will
start with you.
TESTIMONY OF PHILIP C. STITTLEBURG, CHAIRMAN, NATIONAL
VOLUNTEER FIRE COUNCIL
Mr. Stittleburg. Thank you, sir. Good morning. I appreciate
the opportunity to address this Committee. I represent the
National Volunteer Fire Council, and I am here to speak on
behalf of the ``Good Samaritan Volunteer Firefighters
Assistance Act of 2003'' and to explain to you why the NVFC
supports this bill.
About 75 percent of the fire departments in our country are
volunteer, about 15 percent more are predominantly volunteer,
and we protect about 45 percent of the population of this
country. Volunteer fire departments run the gamut in terms of
size from very, very small to very large. Most communities that
have 25,000 population or less are probably going to be
protected by a volunteer fire department.
Some of these departments are extremely well equipped;
others struggle on a daily basis to try to get equipment that
allows them to carry out their mission.
In 2001, the National Fire Protection Association made a
study of the needs of the volunteer fire service and have found
that one-third of all firefighters per shift lacked adequate
breathing apparatus; half of all of them lacked PASS devices,
and the list goes on. One of the sources for less well equipped
departments to obtain equipment is from larger, better equipped
fire departments and from industrial fire brigades.
The role that volunteer fire departments play in homeland
security is immense. I think this is finally being recognized
since the events of 9/11.
The Federal Government has provided financial help to us in
the form in the past of the Assistance to Firefighters Grant
program, which you are all familiar with, or what we frequently
refer to as the Fire Act, which has distributed now more than
$1 billion to the fire service over just the past several
years. This is a greatly needed resource for which we are very
grateful. But I can tell you that it's only a small start
toward what we actually need.
The bill that's before you today actually relates to this
Fire Act because, as some departments receive new equipment
with their Fire Act funds, they will be in a position to donate
their old equipment, and this bill would facilitate that.
What that means, in effect, is that Government gets more
bang for its Fire Act buck. We provide more protection with
that buck, and we are better able to protect our own members
with that very same buck.
Today's appearance is a bit different for me. I have the
privilege of appearing on occasion before congressional
committees, and I'm typically there asking for something, for
the Federal Government to give us something.
Today is different. Today I am not asking for the Federal
Government to give us something. I am asking for the Federal
Government to enable us to take care of ourselves.
Now, one potential question that may arise is: Would
legislation such as this encourage the use of gear that may
possibly be unsafe? I have two responses to that question. Both
of them are no.
First of all, we have standards in the fire service that
designate how we use our equipment. We have standards that
relate to use, maintenance, inspection on a periodic basis,
repair, taking care of the equipment according to the
manufacturer's instructions. So we don't simply pick up a piece
of equipment and use it. It is constantly being maintained and
inspected.
The second point I would make is that the gear that's being
donated is not being donated because it's no longer
serviceable. It's being donated frequently because the
department that is the donor is able to upgrade their
equipment. So what this means is that the donee is much better
off with older-model equipment than without equipment at all.
Another objection I hear mentioned is, you know, shouldn't
this be a State issue? Why would the Federal Government be
involved in liability legislation at the Federal level? Well, I
can tell you that right now there are about 10 States in the
Union that have passed legislation similar to this. This
problem first became apparent to us about 10 years ago. Now, at
that rate we will never get it done. We don't have the time to
fight this battle 40 more times.
But, in addition to that, there is now an urgency to this
matter. 9/11 has greatly expanded the demands made on the fire
service, and particularly on the volunteer sector of the fire
service. It's more important than ever that we be properly
equipped so that we may discharge that mission that we are
called upon to fulfill.
The Fire Act has created a lot more fire departments that
are now able to donate equipment. This didn't exist before. To
lose serviceable equipment at this juncture when the mission of
the fire service has so greatly expanded would be needless,
unforgivable. It would be detrimental to the fire service. It
would be detrimental to the protection that we provide to the
American public.
I thank you, sir.
[The prepared statement of Mr. Stittleburg follows:]
Prepared Statement of Philip C. Stittleburg
Chairman Sensenbrenner, Ranking Member Conyers and members of the
committee, my name is Chief Phil Stittleburg and I am Chairman of the
National Volunteer Fire Council (NVFC). The NVFC represents the
interests of the more than 800,000 members of America's volunteer fire
and emergency services community, who provide staffing in over 90
percent of America's fire departments. I joined the volunteer fire
service in 1972 and have been the Chief of the LaFarge Volunteer Fire
Department in Wisconsin for the last 27 years. I have had experiences
in all phases of the first responder community, including chemical and
hazardous materials incidents, EMS, rescue and fire.
In addition to serving as the NVFC Chairman, I have represented the
NVFC on a variety of standards-making committees, including ones that
set industry standards on firefighter health and safety. I serve on the
National Fallen Firefighters Foundation Board of Directors and have
just completed two terms on the Board of Directors of the National Fire
Protection Association. I have also served as an adjunct instructor for
the National Fire Academy. I earn my livelihood as an attorney, which
includes serving as an Assistant District Attorney on a half-time basis
for the last 30 years. These positions give me an excellent opportunity
to serve and lend my expertise in a wide array of professions in the
public safety arena.
According to the National Fire Protection Association (NFPA),
nearly 75 percent of our nation's firefighters are volunteers. In any
given year, more than half of the firefighters that are killed in the
line of duty are typically volunteers. In addition to the obvious
contribution that volunteer firefighters lend to their communities as
the first arriving domestic defenders, these brave men and women
represent a significant cost saving to taxpayers, a savings sometimes
estimated to be as much as $37 billion annually.
On behalf of our membership, I appreciate this opportunity to
comment on H.R. 1787, the Good Samaritan Volunteer Firefighter
Assistance Act, which would limit the liability of companies and fire
departments that want to donate surplus equipment to volunteer fire
departments. This legislation, introduced on April 11, 2003 by Rep.
Michael Castle (DE), has a bipartisan group of 66 cosponsors. The NVFC
strongly supports passage of this legislation.
The fire service responds to nearly 21 million calls annually
involving structural fire suppression, emergency medical response,
hazardous materials incidents, clandestine drug labs, search and
rescue, wildland fire protection, natural disasters and terrorism. Many
of these incidents can damage America's critical infrastructure,
including our interstate highways, railroads, bridges, tunnels,
financial and agriculture centers, power plants, refineries, and
chemical manufacturing and storage facilities.
Many of these responding departments are rural, volunteer
departments that struggle the most to provide their members with
adequate equipment to protect their communities. In these difficult
times, while volunteer fire departments are already struggling to
handle their own needs and finances, they are now forced to provide
more services.
In recent years, the Congress has begun to respond to the enormous
need in America's fire service by creating the Assistance to
Firefighters Grant program, created in 2000. To date the program has
distributed over $1.1 billion to almost 16,000 fire departments across
the country for apparatus, personal protective equipment, hazmat
detection devices, improved breathing apparatus, wellness and fitness
programs, fire prevention and education programs and interoperable
communication systems. This is the basic equipment our fire departments
need to effectively respond to all hazards. While we greatly appreciate
this support, we feel the Congress can do more for the fire service at
no additional cost to the taxpayers.
The volunteer fire service was built on a tradition of giving.
Volunteer firefighters give hundreds and thousands of hours each year
in service to their community. Moreover, well equipped fire departments
have made it a tradition to give used equipment to those departments
that are less fortunate or in dire need of equipment. However, in
recent years, the fear of getting sued if the gear later turns out to
be faulty has made these donors think twice about giving.
In fact, every year, quality fire equipment, including hoses, fire
trucks, protective clothing and breathing apparatus, with an estimated
worth in the millions of dollars, are destroyed instead of being
donated to volunteer fire departments in order to avoid civil liability
lawsuits. The fear of litigation has forced heavy industry and
wealthier fire departments to waste surplus equipment, which in some
cases has never been used to extinguish a single fire. They are chopped
up or sent to the dump while volunteer fire departments remain in
desperate need of quality equipment to protect themselves and their
communities.
Consequently, volunteer firefighters must spend large amounts of
time raising money, time that could be better used training for
emergency responses. In addition, local taxpayers spend millions of
dollars for operating expenses and for purchasing replacement equipment
for their volunteer fire companies.
Congress can contribute by removing liability barriers that keep
volunteer firefighters from receiving perfectly safe equipment. To be
sure, this act takes measures to protect firefighters from faulty
donated equipment by continuing to hold organizations liable if they
act with malice, gross negligence, or recklessness in making the
donation or are the manufacturer of the donated equipment. A donor may
still be found liable under a negligence standard. Like other Good
Samaritan laws, this bill proposes to raise the standard from
negligence to gross negligence.
H.R. 1787 is modeled after state law that has been passed in
Alabama, Arizona, Arkansas, California, Florida, Illinois, Indiana,
Missouri, South Carolina and Texas. In fact, since this bill was signed
into law in Texas in 1997, donations in excess of $10 million worth of
equipment for volunteer fire departments has been distributed.
Prior to the law being put in place, large oil refineries such as
Union Carbide with their own fire brigades would not make any donations
to the volunteer fire departments in the communities in which they
operate. They cut up hundreds of thousands of dollars worth of fire
equipment and buried it so it could not be used and traced back to
them. This is not an isolated situation. There are other instances
where equipment is donated in a secret fashion and anonymously dropped
off at a specific location with a blind eye turned.
While I understand there is limited case law against these types of
donors, it is quite clear from my experience that the fear of these
lawsuits is having a very real impact. It is our hope that passage of
this legislation will send a clear signal to corporations and wealthier
fire departments that they can donate their surplus fire equipment with
a reduced risk of being sued for their act of kindness.
It is unfortunate that the fire service of our country is forced to
search for serviceable used equipment to enable it to carry out its
vital mission. However, until the day dawns when society accepts its
role in providing proper support to those who protect them, legislation
such as this will be necessary.
Mr. Chairman, I thank you for your time and your attention to the
views of America's fire service, and I would be happy to answer any
questions you may have.
Mr. Smith. Thank you, Mr. Stittleburg.
Mr. Kanaby.
TESTIMONY OF ROBERT F. KANABY, EXECUTIVE DIRECTOR, NATIONAL
FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS
Mr. Kanaby. Thank you, Mr. Chairman. Good morning, Members
of the Committee as well. We appreciate the opportunity to come
here and provide some information regarding the House
Resolution 3369, the ``Non-Profit Athletic Association
Protection Act.'' I represent the National High School
Federation. We represent some 51 State associations throughout
this Nation, those of--each one in each of the States that are
represented here on this Committee, as well as the District of
Columbia. They in turn represent services that we provide to
more than 18,000 secondary schools across the United States in
the areas of sports and activities such as speech, music,
debate, and theater. In total, our services reach more than 7
million participation opportunities for student athletes and
more than 4 million participation opportunities in the areas of
the activities that I mentioned.
We're here to talk about those activities as a means to
deal with a situation that we are encountering that's making it
extremely difficult for us to fulfill our mission and to
fulfill our responsibilities to those schools and to those
young people. We are extremely thankful to Representative
Souder for introducing this bill, which is also cosponsored by
Representative Smith. It is our pleasure to be able to provide
you with any information that you would seek regarding this.
We come to you today because we are threatened with a
situation that may prohibit our ability to continue to write
playing rules for those sports that we have mentioned, some 17
sports. We publish the playing rules for 17 sports which are
utilized by our Nation's high schools throughout the country.
The reason why we are in danger or imperiled is because of this
is, quite frankly, because we cannot--we are reaching a
situation where we cannot afford to pay the insurance premiums
that are occurring.
Within the past 10 years, we have dealt with this
situation, but are finding it more and more difficult to do so.
We have seen our insurance premiums more than triple. They are
now approaching the $1 million mark on an annual basis, and
that represents a tremendous strain on the organization when we
have a total budget of only $9 million.
We come here to explain to you what it is that we do
specifically. We write rules for playing sports here in this
country. The rules-writing process is extremely open. It is
representative of people from all over the Nation. It's
representative by educators who are teacher coaches, officials,
athletic administrators from all walks of life. It is gender-
sensitive, and it is racially sensitive. It truly represents
America and those individuals who are working on these
programs.
But there is a realization that we are having more and more
difficulty dealing with, and that is, sport requires an element
of risk. You cannot participate in sports and eliminate the
element of risk. When you have bodies flying through the air,
when you have young people doing extremely--talented young
people doing all kinds of stunts and activities, and you have
less talented young people doing those same kinds of things or
developing skills to do those same kinds of things, accidents
are going to occur. And each of those accidents has now been
representative to our being sued because we have either passed
a rule or failed to pass a rule, because we have developed a
rule or failed to develop a rule. And we are in a logjam
situation where, no matter what we do, every time there's an
accident or a difficulty that occurs, we are embroiled in a
suit.
Let me underscore the point that this bill does not--does
not attempt to grant immunity over issues regarding
discrimination, whether it be gender, racial, or disability.
This merely is a bill to try to attempt to provide some level
of immunity for individuals, all volunteers, who are developing
playing rules for high school sports. We could easily offer why
we should not have just one playing rule. But that's not the
case. This organization, which is more than 80 years old, has
been writing high school rules since the 1930's because the
rules in the professional leagues do not apply to 13- and 14-
year-olds. They basically need a certain set of circumstances
and rules that basically are done by the educators who are
doing that teaching.
Let me sum up by saying it's important to protect this
organization that promotes these activities for young people
because, should we go away or fail to start--to keep writing
playing rules and provide the services that we do, we are going
to lose a tremendous opportunity for young people to continue
to learn through the spirit of sport, not just necessarily the
skill of sport. And the spirit of sport is that which evolves
around sportsmanship activities, it evolves around teaching
young people citizenship skills--all the kinds of things that
make the difference between a good citizen who contributes to
our society and a citizen who becomes a detriment to it.
Thank you very much for your attention. I'll be happy to
answer any questions you might have.
[The prepared statement of Mr. Kanaby follows:]
Prepared Statement of Robert F. Kanaby
Thank you Mr. Chairman and members of the Committee for the
opportunity to testify in support of HR 3369, the Non-Profit Athletic
Association Protection Act. My name is Robert Kanaby and I have served
as the Executive Director of the National Federation of State High
School Associations for the past 11 years. Prior to that I served 13
years as the Executive Director of the New Jersey State Interscholastic
Athletic Association. I have also been a high school teacher, coach,
vice principal and principal.
The High School Federation is the national service organization and
administrative organization for high school athletics and fine arts
programs in speech, debate, theater and music. Our purpose is to
provide leadership and coordination of these activities to enhance the
educational experiences of high school students and reduce the risks
incident to their participation. We promote inclusiveness and
sportsmanship, and our paramount goal is to develop good citizens.
I am here today to talk about our activities with respect to high
school sports. Specifically, I am here to ask you support and pass
legislation that will provide some immunity for claims of negligence
for us and other non-profit amateur sports rule makers resulting from
passing or adopting sports competition rules for sanctioned or approved
play.
The National High School Federation develops and publishes playing
rules for 17 sports for boys and girls competition. These rules govern
virtually all high school competition in the United States for
baseball, basketball, cross country, field hockey, football, boys
gymnastics, girls gymnastics, ice hockey, boys lacrosse, soccer,
softball, spirit, swimming and diving, track and field, volleyball,
water polo and wrestling. To give you an example of our product, I
included with my written testimony a copy of the rule book for
wrestling.
We have come to Congress because we have a situation that threatens
our ability to pursue our mission. This legislation introduced by
Representation Mark Souder would shield these organizations, their
directors, officers, employees, representatives, and agents from
liability for claims of negligence involving the passage, failure to
pass, adoption, or failure to adopt rules concerning athletic
competition.
Before going into the details of our problem it is important to
understand what we do and the service we provide to communities
throughout this country. The rules writing program, which stresses
``grassroots'' input, was initiated in order for high schools, coaches,
athletic administrators and interscholastic officials to have direct
influence in developing rules. NFHS rules are written specifically by
and for the high school level of participation and are intended to
promote and preserve the sound traditions of the sport and to minimize
the risk of injury for participants.
It is important to understand how these rules are developed. The
two primary rules organizations for education-based athletics are the
NCAA and NFHS. These two non-profit organizations publish rules for
most education-based athletics across the country. They organize rules
committees which are comprised of experienced practitioners (i.e.,
coaches, officials and administrators) who volunteer their time. As
rule makers, they are involved in a predictive endeavor, which means
that unintended consequences are always a possibility. Committee
members observe trends in their sports, seek input from a spectrum of
sources, and then measure possible rules changes against three
principal standards, all of which are subjective. The three standards
include: preservation of each sport's sound traditions; risk
minimization; and maintenance of an appropriate balance between offense
and defense. Each set of rules is a work in progress as players get
bigger and stronger, coaching methods change, and technology advances.
Each sport is an ever-moving target for rules makers, and no set of
rules can ever make participation in sport, as we know it, completely
``safe.''
This is not a new process and this is not a new organization. The
High School Federation is over 80 years old. We published our first
rules in 1930 for football. On the basis of our track record of service
to over 7 million students each year we have done a pretty good job.
Education based sports are an important and essential part of our
society. These activities provide great benefits for participants and
spectators alike. It is widely acknowledged that interscholastic sports
are a tremendous asset to America's young people. They help to build
character and they promote important social qualities such as
leadership, teamwork, discipline, and goal setting.
A study conducted by the Department of Health and Human Services
(Adolescent Time Use, Risky Behavior, and Outcomes: An Analysis of
National Data Issued in September of 1995) found that students who
spend no time in extra-curricular activities are 57% more likely to
have dropped out of school by the time they would have been seniors;
49% more likely to have used drugs; 37% more likely to have become teen
parents; 35% more likely to have smoked cigarettes; and 27% more likely
to have been arrested than those who spend one to four hours per week
in extra-curricular and sporting activities.
High School sports provides an important outlet for celebrating
human achievement. Sport is an activity where competitors and
spectators alike can come together to applaud athletic achievement
without regard to politics, race, gender or ethnic origin. Next month
the 2004 Summer Olympic games will take place in Athens, Greece. This
event brings spectators and athletes together from over 100 countries
to witness the performance of the world's best. For 17 days, political
and social barriers will fall to the side as the world celebrates the
achievement of these athletes. Similar examples take place in high
schools every day.
There is no question that interscholastic sports contributes to the
health and social well being of all of the participants and helps to
lift the spirits of spectators who watch these events. Preserving
amateur and interscholastic sports is essential in our society,
particularly with respect to the development of our children. However a
situation exists that is a threat to the continuation of our ability to
facilitate this important part of our culture.
Sport is not without an element of danger. The nature of
aggressive, competitive, contact-permissive physical activity entails a
small risk of serious harm. For a few, the risk becomes a
reality. It is only in the last decade or so that this has become a
threat to the larger good afforded by amateur sports. As I mentioned at
the beginning of my testimony, rule makers have increasingly become the
target of liability claims alleging negligence due to the passage or
adoption of rules. These allegations have resulted in an increase in
the number of liability claims against our organization and are
beginning to have a detrimental financial impact on the organization
and will eventually affect our ability to continue to provide rule
making services to our nation's high schools. Therefore we are seeking
legislative relief through immunity for claims of negligence resulting
from the rule making process.
While these claims are believed to be without merit, the cost of
defending claims and the uncertainty of judicial proceedings have
caused us significant financial harm and have forced us to reconsider
whether we should continue to provide rules.
The progression of the problem for us is fairly simple. With an
increase in liability claims, comes and increase in insurance premiums
and with an increase in risk we find fewer companies willing to offer
this type of coverage.
Our position is quite simple. Catastrophic injuries while tragic,
are not the fault of the rule maker. Sports involve a certain element
of risk. Rule making is anticipatory and even if rule makers
successfully anticipate problems during competition, injuries will
occur. In deciding to partake in competition, athletes assume risk, and
allowing suits based merely on the good faith development of the rules
is wrong and unfair.
Over the last three years, the annual liability insurance premiums
for the National High School Federation have increased three-fold to
about $1,000,000. We have been advised by experts that given our claims
experience and the reluctance of insurers to offer such coverage to an
organization ``serving 7,000,000 potential claimants,'' the premiums
will likely increase significantly in years to come. Since we operate
on a total budget of about $9,000,000, such an increase would be, to
put it mildly, problematical.
The proponents of this legislation do not seek protection for rule-
makers and administrators who act with malice or gross negligence. Such
people should answer for their actions. However, we believe that
ordinary negligence is a liability standard that simply doesn't work
for non-profit amateur sport rule-makers. Given the inherent nature of
sport and the massive numbers of participants, some injuries and deaths
inevitably ensue from rule-makers decisions. To subject them to
litigation is distracting, expensive, unfair and counterproductive.
Rule-makers are not insurers, and the Congress should act to protect
them and to promote the larger societal benefits they provide.
Everyone who plays or watches high school sports or sports, at any
level, understands that the possibility of injury is inherent in all
sports. Any activity that involves speed, collisions, objects and
humans to travel through the air has risks. Nor are sports stagnant.
They are subject to ongoing redefinition as rule makers act to minimize
risk factors and to deal with new coaching methods and technology.
Because rule making is an anticipatory function, the consequences of
any change takes time to play out. Even if a new rule works as
intended, there will be adverse consequences for some athletes. As a
nation, we recognize that such individual costs are outweighed by the
social, educational and public health benefits that sports provide.
For these sports to continue to grow and prosper, the development
and enforcement of rules is essential. However, the increased expense
of defending litigation is endangering the future of these socially
beneficial activities. Without rules specifically written for this
level of play, the risks will be come greater as programs throughout
the country adopt rules written for others.
Amateur athletics are integral to the health and well being of
society. While non-profit organizations put their best efforts forward
by passing rules in the best interest of the athletes and competition,
injuries will occur as a result of the inherent risk involved in sport.
This risk, however, should not be work to the detriment of amateur
athletics generally. Legislation is necessary to protect rule makers so
funds may be allocated to expanding competition, not legal fees.
Thank you again for the opportunity to be here today and I look
forward to answering any questions.
Mr. Smith. Thank you, Mr. Kanaby.
Mr. Boyer.
TESTIMONY OF EDWARD R. BOYER, P.E., PRESIDENT AND CEO, MERCY
MEDICAL AIRLIFT, AND VICE CHAIRMAN, ANGEL FLIGHT AMERICA
Mr. Boyer. Thank you very much for this opportunity to
present information.
Last year, volunteer pilot organizations facilitated long-
distance, no-cost transportation for over 40,000 patients and
their escorts in times of special need. This year, that figure
will likely grow to 54,000 people. H.R. 1084 is essential to
allow this unique and grass-roots form of volunteerism to
achieve even greater growth into the future.
Volunteer pilot organizations and the pilots themselves are
involved in many different activities in what is generally
called ``public benefit aviation.'' This activity can range
from environmental observation flights to the compassionate
transport of a widow, to the operation of the large and
sophisticated charitable medical air transportation system in
the United States.
The mission and purpose of volunteer pilot organizations
involved in the patient transport is to ensure that no needy
patient is denied access to distant specialized medical
evaluation, diagnosis, or treatment for lack of a means of
long-distance medical air transportation. It's a safety net, as
it were, for those that are bypassed by the system and can't
get to the treatment they need. The goal is to see geographic
distance and/or family resources removed as a factor denying
access to specialized medical care--for all Americans.
Patient families learn about the availability of no-cost
transportation through disease organization letters, from
physicians' offices, from medical centers, and, indeed, from
constituent service staff in congressional offices. The
volunteer pilots themselves pay all the costs of owning and
operating their own aircraft, including fuel, maintenance, and
landing fees, and they're not paid or reimbursed for any of
these expenses.
Okay. How many organizations? How many pilots? There are
upwards of 60 volunteer pilot organizations flying for public
benefit, but only perhaps 30 of them are separate entities and
part of this medical air transportation system. The largest of
the regional organizations function together as Angel Flight
America, which has about 6,000 volunteer pilots all over the
United States. Each organization, however large or small,
contributes to the general public benefit, and no one group has
an edge on doing good.
The non-profit volunteer pilot organizations that organize,
coordinate, and facilitate this process themselves are diverse.
Some operate with no paid staff. Some have very small paid
staffs. All, however, have boards of directors and they all
have large numbers of non-flying volunteers.
In recent years, liability issues have come to the
forefront and now are dampening the effort.
What are these issues? First, any organization or
individual related to or involved with airplanes or aviation is
perceived to have deep pockets and thus can be a tempting
target of a lawsuit.
Secondly, aviation insurance has skyrocketed in cost, and
certain key aviation insurance products are no longer
available. The one in particular here that we're dealing with
is called ``non-owned'' aircraft liability insurance. Prior to
9/11, a volunteer pilot organization could purchase same for
under $2,000 annually for coverage of $5 million. Now virtually
all volunteer pilot organizations have no non-owned aircraft
liability insurance, meaning that their organizations, their
boards, their paid staff, their other volunteers have no
liability protection.
Volunteer pilot organizations have a difficult time
recruiting professional persons for board positions because of
the exposure to liability. In fact, the fear of liability means
that hospitals, doctors, medical institutions, and disease
organizations such as the American Cancer Society are unwilling
to refer their patients to a volunteer pilot organization. This
is why the Shriner system, hospital system, for example,
recently sent a letter to the Congress asking for passage of
this bill, which would allow them to work with volunteer pilot
organizations to move their patients to the Shriner Hospitals
where they give free care to the children.
On the matter of safety, the history of volunteer flying
goes back 32 years, although most of it has arguably been done
in the last 10 to 15 years. The safety record is exemplary.
By way of example, Angel Flight America this year will fly
40 million passenger miles, representing 120,000 flying hours.
Angel Flight America, which was formed as an association in
2000 and its seven-member agencies, some of them go back all
the way to the 1970's. Neither Angel Flight America nor any of
its member agencies have ever in this entire history had a
fatal accident throughout this time. The same is true for
virtually all the groups.
The fear of liability is thus far greater than the reality
of liability in history. That's a fact. The entire public
benefit volunteer pilot world is to be commended for this
outstanding and wonderful safety record.
I thank you very much for this opportunity to share with
you.
[The prepared statement of Mr. Boyer follows:]
Prepared Statement of Edward R. Boyer
INTRODUCTION:
Thank you very much for the opportunity to present this information
regarding the need for and impact of H.R. 1084, the Volunteer Pilot
Organization Protection Act of 2003.
Last year public benefit flying non-profit volunteer pilot
organizations provided long-distance, no-cost transportation for over
40,000 patients and their escorts in times of special need. This year
that figure will likely grow to approximately 54,000 people. H.R. 1084
is essential to allow this unique and grass-roots form of volunteerism
to achieve even greater growth on into the future.
Volunteer pilot organizations and the volunteer pilots themselves
are involved in many different activities in what is called public
benefit aviation. This activity can range from environmental
observation flights to compassionate transport of a son to the distant
bedside of his dying mother or to the operation of the very large and
sophisticated charitable medical air transportation system in the U.S..
Indeed the very lifeblood of the nation is in the hands of volunteer
pilots who are organized to respond to the call for emergency transport
of blood and blood products when commercial means of transport are
either not available or cannot deliver the blood in the time required.
(See Note 1 below).
Note 1. Post 911 activities saw significant quantities of blood and
blood products transported by volunteer pilots. To streamline and pre-
plan the process for future small or large-scale emergency transport
needs, Angel Flight America (the largest volunteer pilot organization
in the country) and the American Association of Blood Banks
Interorganizational Task Force on Domestic Disasters and Acts of
Terrorism have a written Memorandum of Understanding (MOU) detailing
how Angel Flight America volunteer pilots will provide blood
transportation nationwide in future emergencies.
Public benefit aviation has become so important in our society that
the National Aeronautic Association instituted a series of Public
Benefit Flying Awards in 2003. They annually present awards to
volunteer pilots and volunteer pilot organizations along side their
more famous awards including the Robert J. Collier Trophy and the
Wright Brothers Memorial Trophy. Because they understand the critical
role of volunteer pilot organizations the National Aeronautic
Association recently wrote the Congress encouraging the passage of H.R.
1084.
WHAT IS THE CHARITABLE MEDICAL AIR TRANSPORTATION SYSTEM
IN THE UNITED STATES?
What today is a rather large sophisticated system of cooperating
volunteer pilot organizations had its beginnings in the early 1970s
with a couple of small and very ``grass-roots'' groups of pilots
helping neighbors and friends travel to and from distant medical care.
Unknown to each other, one group started in Sacramento, California and
the second group right here in the Washington, DC area. While it all
started with a few pilots and a few flights a year--it has now become a
major public service operation functioning throughout the United
States--indeed the concept has now spread and is being initiated in
Europe, Canada and Australia.
The mission and purpose of public benefit non-profit volunteer
pilot organizations involved in patient transport is to ensure that no
needy patient is denied access to distant specialized medical
evaluation, diagnosis or treatment for lack of a means of long-distance
medical air transportation. The goal is to see geographic distance and/
or family financial resources removed as factors denying access to
specialized medical care--for all Americans.
The scope of long-distance patient travel in the U.S. is greatly
increasing as medicine becomes increasingly specialized and much more
able to deal with the thousands of rare and other debilitating diseases
heretofore only nominally treated. The Rare Disease Act of 2002 and the
resulting new Rare Disease Centers of Excellence around the country are
becoming places of hope for patients and families--but only if
transportation is available. Specialized care or even access to a
promising new clinical trial that is three states away can mean nothing
to a patient and family that has no means for the long-distance
travel--often required multiple times during the course of a clinical
trial or treatment. Volunteer pilot organizations are multiplying on a
scale that is targeted to meet this need. This is a true demonstration
of what is best about America.
Simply put, patients or patient family members--or members of the
medical community--may call and tap into and seek help with no-cost,
long-distance medical air travel for ambulatory outpatients. This
travel is almost always needed to go to pre-planned medical
appointments with disease specialists and/or to specialized medical
facilities. Even if the medical care itself is free or covered by
insurance, the matter of travel is up to the patient family and is most
often not covered by insurance. If a family cannot afford the travel--
they are effectively denied access to what is often life-saving or
quality of life improving specialized treatment. Such treatment often
takes months of time and many round-trips for the patient and patient
escort. Even ``middle America'' who might afford one round trip can
rapidly become financially depleted and find themselves without the
money needed to complete the specialized course of treatment or the
clinical trial. The provision of charitable transportation in these
situations becomes ``the shortest distance between home and hope.''
Patients and patient families learn about the availability of no-
cost transportation through disease organization newsletters and web
sites, from physicians offices, from medical centers around America
and, indeed, from constituent service staff in Congressional offices. A
phone call to one of these volunteer pilot organizations, such as the
National Patient Air Transport HELPLINE or to an Angel Flight office,
can start the process for a patient. The volunteer pilot organizations
most often have a small paid staff who, in cooperation with the
patient's doctor, screen the patients for both medical and financial
need and then serve as mission coordinators--matching the patient and
patient/escort needing transportation with a willing FAA qualified
volunteer pilot who is able to provide the help for the mission at
hand. Flights only out to about 1,000 miles are accepted for small
aircraft travel as most volunteer pilots are operating 4 to 6 place
small aircraft with the obvious limitations of range. Flights in excess
of 400 miles usually involve the pre-planned linking of two or three
different planes/pilots to complete the trip.
The volunteer pilots themselves pay all the costs for owning (or
renting) and operating their own aircraft including fuel, maintenance
and landing fees. The pilots are not paid or reimbursed for any of
these expenses. Pilots are not limited to flying for only one volunteer
pilot organization. Indeed, many do fly for two or more such
organizations.
HOW MANY ORGANIZATIONS AND HOW MANY VOLUNTEER PILOTS?
There are upwards of 60 volunteer pilot organizations flying for
public benefit--but only perhaps 30 of them are separate entities and
part of the national charitable medical air transportation system. The
largest of the regional organizations function together in Angel Flight
America, which has about 6,000 volunteer pilots. Organizations other
than AFA tend to either not be involved in the charitable medical air
transportation system or are smaller organizations with a restricted
geographical focus. Each organization contributes to the general public
benefit and no one group has an ``edge'' on doing good.
These 30 non-profit organizations together likely have about 8,000
volunteer pilots. Some pilots only fly one or perhaps two public
benefit flights per year--others may fly as many as 50 missions a
year--all at their own expense. The most active and even the less
active all play an important role in serving the public. The non-profit
volunteer pilot organizations that organize and coordinate/facilitate
the process themselves are diverse. Some operate with no paid staff at
all. Some have small paid staffs to handle the larger more diverse
workload they face. All these organizations have boards of directors--
and all of these organizations have large numbers of non-flying
volunteers who do everything from stuffing envelopes to driving
patients from airports to the medical facility. All of these
organizations must raise the funds they need to operate from private
donations. The ``organizational health'' of these volunteer pilot
organizations directly affects the level of public benefit their
volunteer pilots can provide.
In recent years liability issues have come to the forefront and now
are dampening the effort. H.R. 1084 is designed to address these issues
as they are being experienced at this time.
WHAT ARE THE LIABILITY ISSUES FACING PUBLIC BENEFIT AVIATION
AND HOW CAN H.R. 1084 ASSIST?
All of the issues discussed here relate to one of two realities
that have come upon the aviation community, and to a certain extent,
onto us all.
First, any organization or any individual related to or involved
with airplanes or aviation is perceived to have deep pockets and thus
could be the target of a lawsuit.
Secondly, aviation insurance has skyrocketed up in price and
certain key products are no longer reasonably available to volunteer
pilot organizations. The product in question here is what is called
``non-owned'' aircraft liability insurance. Avemco Insurance Company,
which insures a major part of the general aviation fleet of aircraft,
had traditionally provided this coverage for volunteer pilot
organizations--but stopped marketing same about four years ago and
never expects to return to that market. Prior to 911, a volunteer pilot
organization could purchase same for under $2,000 annually for coverage
of $5 million. Now virtually all volunteer pilot organizations have no
non-owned aircraft liability insurance.
(Note that this should not be confused with Directors and Officers
insurance that is available but specifically excludes aviation
liability. Many volunteer pilot organizations do carry D&O as well as
general office liability insurance.)
This ``insurance reality'' means that most non-profit volunteer
pilot organizations, their boards of directors, their paid staff and
their non-flying volunteer staff persons have no liability protection.
Should an accident occur with a volunteer pilot using his own aircraft,
the resulting lawsuit could come right on through to the organization
and these people even though they have nothing to do with the operation
of the flight, the pilot or the aircraft. Volunteer pilot organizations
have a difficult time recruiting professional persons for board
positions because of the lack of non-owned aircraft liability insurance
coverage.
(Note: The pilot, his aircraft and the conduct of the flight are
under the jurisdiction of the Federal Aviation Administration that
administers the Federal Aviation Regulations. The volunteer pilot
organization does not in any way stand between the volunteer pilot and
the FAA and the volunteer pilot organization does not ``dispatch'' the
flight as would be the case if it were a commercial aviation venture).
Insurance companies report to me that they will not underwrite non-
owned aircraft liability insurance for organizations because they say
there is no way to measure the extent of their exposure to loss.
H.R.1084 will provide this liability protection.
More importantly, the second result of the ``insurance reality'' is
that referring hospitals and clinics are becoming unwilling to inform
their patients that charitable medical air transportation help is
available for fear of a liability against them should something happen
in a subsequent volunteer pilot flight. This means that hospitals,
doctors, medical institutions and even disease organizations such as
the American Cancer Society are unwilling to refer their patients to a
volunteer pilot organization for fear of liability. This is why the
Shriner Hospital System recently sent a letter to the Congress asking
for passage of H.R. 1084 so they can work with volunteer pilot
organizations to move their patients from hometown communities to their
hospitals--all of which provide free medical care for child patients.
H.R. 1084 solves the ``referral agency'' liability problem. (Note:
There would be no practical way for thousands of ``referral agencies''
to purchase liability insurance for this even if it were available.)
And, lastly, most pilots do not carry high liability insurance
limits because they normally only carry their own families or close
business associates in their aircraft. Opening their aircraft to needy
patients and patient escorts has the effect of expanding the ``window
of opportunity'' for a liability lawsuit and thus H.R. 1084 provides
for liability protection for the pilot only over and above the
liability protection in the insurance, which he/she must carry to
participate in a volunteer pilot organization program. This means that
some pilots, who have the means to contribute with their time and their
talent, do not fly for a volunteer pilot organization because of their
fear of liability. These pilots are afraid of how their families would
cope if they were involved with a crash with a patient with them--so
this fear paralyzes them from helping others.
Congressional staff is to be commended for providing the legal
wording in H.R. 1084, which is an amendment to the highly regarded 1997
Volunteer Protection Act. Four different aviation law attorneys who
advise and help the efforts of volunteer pilot organizations nationally
have reviewed the wording and find it acceptable. I thank each of these
professionals for their kind encouragement and support.
THE MATTER OF SAFETY BASED ON HISTORY
The history of volunteer pilot organizations goes back about 32
years even though a largest portion of the flying has taken place
within the last 10 to 15 years.
Research into the safety record of this major volunteer effort
shows that safety record is exemplary.
By way of example, Angel Flight America this year will fly nearly
40 million passenger miles. This represents about 120,000 flying hours.
Angel Flight America (an association) was formed in the year 2,000
though some of its' member agencies go back to the early 1970s. Neither
Angel Flight America nor any of its seven member agencies have ever had
a fatal accident throughout this entire history. The same is true for
most other volunteer pilot organizations.
I am personally aware of three fatal accidents since the 1970s
involving patients while being transported with the assistance of a
volunteer pilot organization. In two cases the lawsuit was dropped and
one was settled out of court for a very modest amount. The fear of
liability is thus far greater than the reality of liability in history.
The entire public benefit volunteer pilot world is to be commended for
an outstanding and wonderful record of safety.
IN SUMMARY
With the kind help of Congressman Ed Schrock of Virginia, his able
staff person Jeff Palmore and other Congressional staff resources it
has been a pleasure and a learning experience to work with this
legislation through its development, writing and process. I thank the
House Judiciary Committee for considering this legislation. It will
make the well respected 1997 Volunteer Protection Act much better,
indeed--a shield and encouragement to our professionally qualified
volunteers.
Mr. Smith. Thank you, Mr. Boyer.
Mr. Popper.
TESTIMONY OF ANDREW F. POPPER, PROFESSOR OF LAW, AMERICAN
UNIVERSITY AND WASHINGTON COLLEGE OF LAW
Mr. Popper. I have just heard impressive testimony from
remarkably impressive people, and I'm reminded of the George
Gobel line: ``I feel like all the world's a tuxedo, and I'm a
pair of brown shoes.'' [Laughter.]
In my view, this legislation looks and carries the impact
of all tort reform legislation, and I use the word ``reform''
advisedly. Laws that provide no protection for consumers, no
incentive for greater safety, and limit significantly the
rights of those who lack power are hardly the stuff of reform.
On June 22, 2004, Professor Theodore Eisenberg presented to
this Committee testimony in which he said, ``Tort reform
proposals are based on questionable views of the operation of
the tort system. The United States is not the most litigious
country, tort awards are not increasing, punitive damages are
rare and in line with compensatory damages [and] estimates of
tort system costs supplied to Congress and the media are deeply
flawed...''
I agree wholeheartedly. The tort system should not be set
aside in any field unless there's unequivocal evidence of its
failure, of perverse incentives that outweigh the corrective
justice effect of tort law. I am not aware of any evidence that
exists for the bills that are the subjects of today's hearings.
Let me be clear. First, only a fool would deny the
immeasurable value of the individuals and organizations who are
backing this legislation. But recognizing that volunteers are
of great value is entirely different from immunizing
volunteers--and their organizations--when those volunteers or
their organizations engage in behavior that breaches
fundamental duties of care. When one engages in an act that
violates basic standards of care, the harm they cause is not
assuaged on the premise that, done properly, such acts would
have been the essence of decency.
Second, while each of these bills affects only a small part
of the tort system, this type of piecemeal tort reform is
devastatingly dangerous. In my written testimony, I said the
pattern that emerges reminds me of the hunting practices of a
wolf pack. Rather than taking their prey with a single bite,
wolves begin with a series of bites, disabling and weakening
their victims before coming in for the kill.
The ``bites'' proposed in these bills, in isolation, are
minor and understandable. It's easy to see why they're
supported by such passionate testimony. But taken in
conjunction with the stream of endless attacks of tort reform,
they are dangerous and threaten the model of civil litigation
that I believe in deeply.
The immunity provided to athletic organizations, were this
bill to pass, as I read this legislation, would block
discrimination actions. I understand the testimony I've just
heard. I simply don't read the legislation that way. It does
preempt State law for no discernible reason. It does take away
organizations that were supposed to be defendants after the
Volunteer Protection Act of 1997 and eliminates that source for
those who have been affected adversely.
The firefighter bill likewise doesn't seem to me to have a
premise for the preemption that is the predicate of the bill.
If there's a problem in this area--and I don't know whether
there is or there isn't; there certainly isn't if you look at
cases and litigation in this field--then informed consent and
waivers would certainly do the trick. It's hard to see why
Congress would favor a bill that removes liability from those
who foreseeably place firefighters at risk. We're talking about
negligence. Not every gift where the product goes wrong
constitutes the basis for a lawsuit. It's only those cases
where you can prove a breach of a duty of care. You would be
rewarding people who put firefighters at risk. I don't get it.
Finally, the act regarding the airlines, the Angel
organization, you're talking about affecting those who are in
need of emergency air service, who have to rely on volunteers,
who are without bargaining power in the market, who would be in
the hands of individuals and organizations who are
unaccountable legally for negligent acts. It's troubling to
think that Congress would pass a law that reduces standards for
pilots.
The individuals touched by these laws, those served by
volunteers, are victims of disaster, students, patients, and
countless others in need of help, compassion, and diverse
skills these volunteers provide. This is a highly vulnerable
group, often without the power to select a person who will
assist them. It is worth asking why in this situation,
involving those least able to bargain in the marketplace for
assistance, one would relieve actors of the beneficial pressure
of a legal system that asks them to act reasonably.
A fundamental predicate of the tort system involves the
belief that the potential of liability creates accountability
and improves the likelihood of enhancing the quality of goods
and services. It is difficult to imagine how the removal of
liability advances that objective.
Thank you.
[The prepared statement of Mr. Popper follows:]
Prepared Statement of Andrew F. Popper \1\
---------------------------------------------------------------------------
\1\ Professor of Law, American University, Washington College of
Law. This testimony draws heavily from a draft of my article, Popper,
``A One Term Tort Reform Tale: Victimizing the Vulnerable,'' 35 Harvard
Journal on Legislation, 123 (1998). For those interested in the
documentation for assertions made in this testimony, please refer to
that article.
---------------------------------------------------------------------------
The tort reform movement has done little to strengthen laws that
protect consumers from harm and even less to stimulate essential civil
liability pressures that compel higher quality in the production of
goods and services. While the term ``reform'' suggests affirmative
changes that do some good, the goal of tort reform has been to limit
civil litigation options, reduce exposure to civil liability, and
create laws that allow defendants to calculate their exposure in
advance and then breed those costs into the price of the goods or
services they provide. Laws that provide no protection for consumers,
no incentive for greater safety, and limit significantly the rights of
those who lack power are hardly the stuff of reform.
The very premise of tort reform is flawed. On June 22, 2004,
Professor Theodore Eisenberg provided testimony to this Committee in
which he contended that the foundation for tort reform is specious.
Professor Eisenberg summarized his remarks as follows:
``Tort reform proposals are based on questionable views of the
operation of the tort system. The United States is not the most
litigious country, tort awards are not increasing, punitive
damages are rare and in line with compensatory awards. . . .
Estimates of tort system costs supplied to Congress and the
media are deeply flawed and provide no basis for sound
policymaking.''
I agree wholeheartedly with Professor Eisenberg's conclusions. The
tort system should not be set aside in any field unless there is
unequivocal evidence of its failure, of perverse incentives that
outweigh the corrective justice effect of tort law. I am not aware that
such evidence exists for the bills that are the subject of today's
hearings, H.R. 3369, H.R. 1787, and H.R. 1084 and I oppose them.
Two preliminary comments are in order before discussing these
proposals. First, firefighters, pilots who volunteer to assist those in
need, and those who make charitable gifts are appropriately honored and
supported. Only a fool would deny the immeasurable value of these
individuals. Recognizing that volunteers are of great value is entirely
different from immunizing volunteers' and their organizations' when
volunteers or their organizations engage in misconduct tantamount to
negligence. When one engages in acts that violate basic standards of
due care, the harm they cause is not assuaged on the premise that,
properly done, such acts would have been the essence of decency.
Second, while these bills target singular and narrow segments of
tort liability, they represent a threat to the whole of the civil
liability system. Since broad proposals such as abolishing punitive
damages, strict liability, or joint and several liability have not yet
succeeded, tort reformers have followed a strategy of pursuing isolated
aspects of civil liability law. Biomaterials, vaccines, charities,
airlines, tobacco, fast foods, and other fields are presented to be in
desperate need of federally imposed limits on liability, purportedly to
insure industry survival. The pattern that emerges resembles the
hunting practices of a wolf pack. Rather than taking their prey with a
single bite, wolves begin with a series of bites, disabling and
weakening their victims before coming in for the kill. The ``bites''
proposed in these bills, in isolation, may not seem all that
devastating. Taken in conjunction with the stream of endless targeted
tort reform attacks, they are dangerous and threaten our model of civil
justice and legal accountability.
H.R. 3369, H.R. 1787, AND H.R. 1084
H.R. 3369, the ``Nonprofit Athletic Organization Protection Act''
would give immunity to non-profit athletic organizations. The bill
covers rules an organization might adopt but also seems to grant
general immunity to such organizations. If passed, the bill would block
anti-discrimination cases that have been used to address race,
disability and gender discrimination. In addition to destroying the
opportunity for an athlete to challenge discriminatory practices (while
placing no limit on an organizations ability to use the courts), the
bill would preempt state laws for no discernible reason.
In addition, the bill undercuts one of the stated reasons that
allegedly justified the 1997 Volunteer Protection Act. During the
debates regarding that law, supporters contended that while the
legislation liberated coaches and volunteers from the risk of
liability, even when they were negligent, it left the organizations as
viable defendants in the event a plaintiff could fashion a respondeat
superior theory or a general vicarious liability claim under state law.
H.R. 3369, would destroy that protection.
______
The second bill before the committee today is H.R. 1787. This bill
would give immunity to those who donate fire fighting equipment. I am
hard pressed to see why a federal bill that preempts state law is
needed in this field. I don't claim to have knowledge of every tort
case filed, but I do try to keep up with major areas of litigation and
judicial trends. I am unaware of meaningful case law imposing liability
on donors of equipment used in firefighting. I have no information
regarding a shift in willingness to make donations and could not
identify a single comprehensive study or professionally documented
article, or other form of ``evidence'' (taking Daubert in its broadest
light) to justify a federal law that would destroy the rights of an
injured party to pursue a tort claim. If there is a problem in this
area, I would think a waiver of liability, assuming the parties are
reasonably informed of risk, would make more sense than an overly broad
law that would be at odds with the most basic notions of federalism.
What could be more local (i.e. subject to state law) than a fire
department? If a state wants to facilitate donations (to and from fire
departments) it can do so. It hardly seems a federal matter.
Finally, without putting too fine an edge on this, it is hard to
see why Congress would favor a bill that removes liability from those
who foreseeabily place fire-fighters at risk. It is nonsensical to
protect one who knows or reasonably should know of the risk they are
creating.
______
The third bill, H.R. 1084, if passed, protects pilots, pilot
organizations, hospitals and others (including for-profit entities)
involved in the transport of those who are injured or ill. As with my
critique of H.R. 3369, H.R. 1084 undercuts a fundamental premise of
exiting federal law, the 1997 Volunteer Protection Act. That
legislation immunized negligent coaches, lawyers and doctors engaged in
malpractice, and others who have trusting contact with vulnerable
populations, on the premise that victims of such misconduct would still
have recourse against the organizations who sponsored the immunized
defendant-volunteers. If this bill passes, that protection will vanish.
Under this bill, the pilots, as well as their organizations and
sponsoring entities, would all be immunized. In short, those who are in
need of emergency air service and must rely on volunteers would be in
the hands of individuals and organizations who are unaccountable for
negligent acts.
The 1997 Volunteer Protection Act of 1997 explicitly excluded from
its coverage motor vehicles and aircraft, presumably on the premise
that the operation of cars, trucks, ambulances, and aircraft presented
a foreseeable risk for which tort immunity was inappropriate. This bill
would undo that protection.
It is troubling to think that Congress would pass a law that
reduces the standard of care for pilots, particularly when they are
transporting those who are in the most vulnerable condition imaginable.
I confess, as with the fire fighter bill, I do not know every case
in the field of pilot or airline organization liability. I do follow
case-law and try to observe trends--and I am unaware of litigation,
appellate cases, or credible documented literature that justifies this
bill.
______
The bills discussed above are based in part on the premise that
without the risk of tort liability, more people will volunteer or make
donations, and presumably, the quality and frequency of charitable work
will be enhanced. Putting aside the fact that there is no meaningful
study to support the claim that tort immunity would improve the number
or quality of volunteers, there is a deeper problem: these laws would
eliminate the existing right to expect others to exercise due care.
The individuals who will be touched by these laws, those served by
volunteers, are victims of disaster, students, patients, and countless
others in need of the help, compassion, and diverse skills the
volunteers can provide. This is a highly vulnerable group, often
without the power to select the person who will assist them. It is
worth asking why in this situation, involving those least able to
``bargain'' in the marketplace for assistance, one would relieve actors
of the beneficial pressure of a legal system that asks them to act
reasonably.
A fundamental predicate of the tort system involves the belief that
the potential of liability creates accountability and improves the
likelihood of enhancing the quality of goods and services. It is
difficult to imagine how the removal of personal and organizational
accountability advances that objective. Further, the common law has
never been particularly generous to those in need of competent
assistance. Outside of statutes, contracts, or certain special
relationships, there is no generic duty to come to the aid of another.
However, once a person has made the decision to volunteer, there must
be conformity with a minimum level of due care. The bills under
consideration today change that standard.
Volunteers who reach out to others are to be accorded support,
respect, and encouragement. That should not mean abandoning the
conventional responsibilities of due care.
Mr. Smith. Thank you, Mr. Popper, and let me thank all the
witnesses for keeping their remarks roughly within 5 minutes.
That's a new precedent, I think.
Mr. Stittleburg, let me address my first question to you,
slightly esoteric, and I hope you know the answer or are aware
of the question. Several years ago, my home State of Texas
passed legislation that made it easier for individuals,
encouraged individuals to donate firefighters' equipment. Could
you tell us how that has worked or hasn't worked, particularly
as it might relate to the legislation that we're considering
today?
Mr. Stittleburg. Well, sir, it has worked tremendously, and
I do, in fact, have some numbers that will verify that. That
legislation that you referred to, which I believe they called
the ``Helping Hands'' legislation, if memory serves me, became
effective September 1st of 1997, so it's been around for
approximately 7 and a half years now.
In that 7 and a half years, there have been donations
passed through that program of approximately $13 million, and
that donated equipment has assisted in excess of 1,000
volunteer fire departments during that period of time.
Now, that legislation got passed in Texas because the
problem was recognized there. Union Carbide, for instance, was
a prime example of a potential donor that was destroying very
valuable equipment that could certainly have been of great
assistance to volunteer fire departments simply because of its
fear of liability.
In fact, you know, as attorneys, we tend to look to the
reporting of lawsuits to determine if there's a problem. And,
in fact, the reason that that--the reason that the problem is
not documented in lawsuits I believe is twofold:
One, it's because of the chilling effect of the perception
of the liability. In other words, the donor's perception of
liability becomes the donor's reality. The equipment simply
doesn't get donated, and so there is no suit at all because the
donation didn't happen.
I think there's a second reason, too, and that's because
the donated property is properly inspected and maintained and
used and, therefore, doesn't malfunction.
Mr. Smith. Okay. Thank you, Mr. Stittleburg.
Mr. Kanaby, suppose someone is injured who the volunteer or
the volunteers are trying to help. Who should be responsible if
there's an injury? Who should be responsible if there's gross
negligence, for example?
Mr. Kanaby. Certainly those individuals who would
contribute to a gross negligence situation should be held
accountable. This bill does not remove the factors of gross
negligence from litigation.
Mr. Smith. Either gross negligence or willful misconduct.
Mr. Kanaby. That is absolutely correct, Mr. Smith. The sole
purpose of this for the National Federation and for other
organizations, amateur organizations that write playing rules,
is to simply remove the fact that we write playing rules simply
as one of those particular means. Let me give you a classic
example of what I'm talking about.
There was a lawsuit filed against the National Federation
of State High School Associations over an incident that
occurred in practice. It wasn't even a game situation for which
we write the rules. But a coach, unfortunately, was working
with an athlete in wrestling and dropped the wrestler on his
head and he suffered neck injuries that left him--that rendered
him in a paralysis state.
Well, we were sued because the idea was offered that we
should have anticipated those kinds of situations and placed
that in the rules. And were we excused from that lawsuit? Yes.
But we were excused from that lawsuit after about $25,000 worth
of legal bills, which were paid by our insurance broker or our
insurance company, and then our company at the end of the years
says, ``Your claims record is terrible. Therefore, your rates
are going to increase exponentially in that regard.''
That's our concern. We are not looking to protect anyone
who is malfeasant or does not do their job or is grossly
negligent of anything. This bill does not do that.
Mr. Smith. I understand. Thank you, Mr. Kanaby.
Mr. Boyer, Mr. Popper, let me squeeze two quick questions
in. Mr. Boyer, speaking of $25,000 in legal fees, speaking of
the threat of lawsuits, what does that do to insurance? And why
did you, as well as Mr. Kanaby, mention the threat of high
insurance premiums as being one of the adverse results? And
give me a quick answer, if you can.
Mr. Boyer. The aviation insurance world seems to lump all
aviation things together. When a 747 crashes in the middle of
the desert somewhere or great, huge, expensive things happen,
all insurance rates goes up, even for the guy who flies a four-
seater airplane out of Manassas Airport. I can't explain why
the industry acts that way, but it does. But the fear of that
liability is just driving everything. That's why the non-owned
aircraft liability insurance has just virtually disappeared as
a reasonable insurance issue for volunteer pilot organizations.
Mr. Smith. Okay. Thank you, Mr. Boyer.
Mr. Popper, real, real quickly, do you support any tort
reform at all in regard to volunteers or volunteer
organizations? Just a quick yes or no. We can go into more
details later on.
Mr. Popper. As currently constructed in the legislation,
no.
Mr. Smith. Okay. Thank you, Mr. Popper.
The gentleman from Michigan, the Ranking Member of the
Judiciary Committee, Mr. Conyers, is recognized for his
questions.
Mr. Conyers. Thank you, Mr. Chairman, and thank all of you
for being here. I appreciate the leadership you've given among
the firefighters, the school athletics activity, and, Mr.
Boyer, with the pilots and those who in those seven groups help
get people in need and in emergency back and forth.
Have you recognized, Mr. Boyer, that part of the reason for
your high and increasing insurance rates since 9/11 is due to
the fact that flying is one of those areas that attract the
attention of terrorists and those who would do us harm and that
those premiums have gone up throughout the whole industry?
Mr. Boyer. Certainly I recognize that.
Mr. Conyers. Certainly you recognize that, okay. Now, do
you also recognize the fact that the Angel Flights have
absolutely nothing to do with the increases in the insurance
rates that you're paying?
Mr. Boyer. That's absolutely true.
Mr. Conyers. Okay. Now we're getting somewhere.
Now, let us examine the number of people that have been
sued in those seven groups that do what we generally term ``the
Angel Flights.'' I would suggest that the answer to that
question is zero. What do you suggest?
Mr. Boyer. Among the 30 or so organizations involved in
this, of which Angel Flight was just 7, but among the 30,
historically I am personally aware of three lawsuits in the
last 15 years.
Mr. Conyers. Okay.
Mr. Boyer. Two were dropped. A third one was settled out of
court for a very nominal sum.
Mr. Conyers. Thank you very much for that information.
Now, let me ask, you made a statement, I thought, that
carried a lot of weight here, Mr. Boyer, and I am going to ask
Chief Stittleburg about it. Mr. Boyer said that the fear of
liability is much greater than the actual--the actuality of
lawsuits in his industry. Do you agree with that as it applies
to yours?
Mr. Stittleburg. Yes, sir.
Mr. Conyers. Okay.
Mr. Stittleburg. I believe that is the reason donations do
not occur, sir.
Mr. Conyers. Wait a minute. Let me ask the question, and I
don't need you to modify it. Do you agree with Mr. Boyer's
statement that the fear of lawsuit liability, tort liability
lawsuits, is much greater than the actual bringing of the
lawsuits?
Mr. Stittleburg. Yes, sir----
Mr. Conyers. Psychological.
Mr. Stittleburg. Yes, sir, I do.
Mr. Conyers. I can understand that.
Now, Mr. Kanaby, do you have a similar reaction? Or how do
you respond to that question?
Mr. Kanaby. Whether the fear of lawsuits--I'm sorry. Would
you repeat the question again, Mr. Conyers?
Mr. Conyers. Sure.
Mr. Kanaby. Because I want to----
Mr. Conyers. Is it true that for many the fear of being
sued is much greater than the actuality of getting sued?
Mr. Kanaby. I believe that would be true in all walks of
life, yes.
Mr. Conyers. Of course. And then among the general
citizenry that's a fear. The people are worried about getting
sued.
Now, here's the problem that we on the Judiciary Committee
face, and I know you're here to tell us about your problem, but
I want to tell you about ours because we've got something in
common. What we've found is that when you--when you limit tort
liability and create exemptions, guess what happens? The
premiums don't go down. So what are we supposed--you know, we
can create all the exemptions we want, and your high premiums,
Mr. Boyer, if historical precedence in any guide, the premiums
aren't going to go down after you get exemptions. Yes, sir?
Mr. Boyer. Actually, the product that we need, non-owned
aircraft liability insurance, is no longer available in the
market.
Mr. Conyers. It's not even available.
Mr. Boyer. No.
Mr. Conyers. Well, I think that you should have it.
Let me ask you all a question, and I will start with you,
Mr. Kanaby, and this is my last question. Why not use a
liability waiver for incidents that you think are going to be
difficult rather than come to the Federal legislature to have
us intervening in literally hundreds of thousands of local
activities for which we have, frankly, little record of any
actual lawsuit problem? Mr. Kanaby?
Mr. Kanaby. Yes, sir. Because traditionally the courts have
not recognized that you can waive the rights of minors, sir,
and most of our participants are minors. And parent permission
slips for field trips or athletic events, et cetera, once they
are--once they are implemented, have not been held up
traditionally in the courts as being reasonable.
Mr. Conyers. Well, I don't think you're going to find many
Members in the House or the Senate at the Federal level that
are going to give you a law that would allow us to exempt them
from waiver of liability when the State and local courts and
traditional legal practice won't let you do it. To me, I can't
do it because it would be unconscionable for me to tell kids
that it's too bad that the coach was negligent or that
something happened that shouldn't have happened, but we've got
a Federal law that exempts them from liability. That would be
unconscionable.
Mr. Kanaby?
Mr. Kanaby. I would agree with that. If we were to look for
immunity from those kinds of acts, this bill does not attempt
to free us from holding people accountable. This bill is merely
designed to protect groups who in all good faith through
volunteer efforts develop a set of guidelines and rules under
which a program is going to be held by people who have great
years of experience at that level of play. That is what this
legislation is about.
If I might also, with your permission, sir, respond to the
earlier question to Mr. Boyer, 2 years ago this organization
could not find a single insurance carrier who was willing to
provide it liability insurance.
Mr. Conyers. Let me ask if you've ever heard--I just want
to----
Mr. Smith. The gentleman's time has expired, but he's
recognized, without objection, for an additional minute.
Mr. Conyers. Thank you.
Have you ever heard of PGA Tour vs. Martin in the Supreme
Court of the United States?
Mr. Kanaby. Yes, sir.
Mr. Conyers. Okay. Have you ever heard of the Michigan High
School Athletic Association vs. Communities for Equity?
Mr. Kanaby. Yes, sir.
Mr. Conyers. And have you ever heard of Cureton vs. NCAA?
Mr. Kanaby. Yes, sir.
Mr. Conyers. Well, then, would you kindly--and I have no
more questions. Would you kindly tell me what your
understanding of any one of those three cases or all of them
are?
Mr. Kanaby. My understanding basically is that the bill
that you have before you now does not involve any of those
situations. The Michigan situation involved the placement of
sports within a specific season. The Martin case obviously is a
disability case. And as earlier stated, this bill has nothing
to do with discrimination cases for race, gender, or
disabilities or the like.
Mr. Conyers. Well, then, that means I need to get rid of my
whole legal staff on the Judiciary Committee. [Laughter.]
Who have been failing me badly in this hearing, and I thank
you for your advice.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from Texas, Mr. Carter, is recognized for his
questions.
Mr. Carter. Thank you, Mr. Chairman.
Mr. Kanaby, let me ask, my son's a high school baseball
coach, and so I have a real interest in what you're talking
about here. So if you pass a rule for 14-year-olds, a slide
rule, you must slide into second base, and somebody breaks a
leg sliding into second base, they sue--they would sue you
because you said they had to slide.
Mr. Kanaby. That would be correct.
Mr. Carter. And yet you--so then you could have a no-slide
rule, and there would be a collision at second base, and
somebody would get hit in the back of the head with a baseball,
and they would sue you for having a no-slide rule.
Mr. Kanaby. That is also correct.
Mr. Carter. So basically you don't have the ability--
there's only two things you can really do there, either--well,
I guess the third thing is just stop on first base and be out.
But other than that, you're damned if you do and damned if you
don't in that rule.
Mr. Kanaby. Which is the real threat to us, sir, yes.
Mr. Carter. And people do get sued for when their kid flat
slides into second base and breaks his leg.
Mr. Kanaby. That is correct.
Mr. Carter. And they do get sued when they don't slide into
second base or when they collide and hurt the second baseman.
Mr. Kanaby. Also likely, yes, sir.
Mr. Carter. Right. And what you're telling us here, you're
just writing rules that are the safest rules you can, and yet
your liability extends across the Nation as every time the kid
takes the field in amateur sports in this country.
Mr. Kanaby. That's absolutely correct, yes.
Mr. Carter. I see that as a real problem. I mean, I don't
see why liability should extend to that level.
Mr. Popper, you are a lawyer, I assume. You are teaching
law school, and I'm a lawyer and I've been in the courtroom for
20 years. I listen to these tort reform arguments, and I have
been on both sides of the docket. I like a level playing field
and fairness in the law, and I'm not an anti-lawyer judge. What
do you see as the solution to the problem that these three
organizations have here? These three organizations are trying
to do good. They are way extended generally from the injuries
that occur, and yet they're being put out of business because
of the cost of insurance or the inability of insurance. What do
you see as the solution to the problem?
Mr. Popper. That's an awfully broad question, sir.
Mr. Carter. Well, narrow it down. Should we put
everything--every pilot, should he be an indigent? I know
lawyers don't sue indigents. Should we put an indigent in the
cockpit of every airplane that flies and let him have ownership
so they won't be sued? What do you see as the solution?
Mr. Popper. I hardly think putting an unqualified person in
the cockpit of an airplane provides any kind of meaningful----
Mr. Carter. No, I didn't mean unqualified. He may be a
qualified pilot, but he doesn't have any money.
Mr. Popper. Okay.
Mr. Carter. You're not going to sue anybody that doesn't
have any money or insurance.
Mr. Popper. Well, you're not making the distinction between
the imposition of liability after a finding of negligence and
the ability to file a lawsuit. Everything that I've heard in
your question and everything that I've heard thus far talks
about people filing lawsuits. Well, people file lawsuits. It's
part of our access to the civil justice system. The question
isn't whether they can file lawsuits or not, unless you want to
talk about jurisdiction and venue and standing. The question is
whether, once lawsuits are filed, judges and juries in the
United States, State legislatures in the United States, those
entities that have the ability to control and affect the
outcome of lawsuits, are doing their job. And in my opinion,
they are.
You're not hearing--or at least I'm not hearing about
findings of liability. I'm hearing about people exploring
whether their rights have been violated, and from these
organizations hearing that they effectively defend themselves.
I cannot, however, tell you--and I think this is your
question--what to do about the fact that insurance companies
mismanage funds, choose not to provide insurance for certain
high-risk activities, when the risk is filing a lawsuit. That's
a problem for insurance regulation. To me, that's at the heart
of tort reform, not the ability to file a lawsuit and not
providing immunity to somebody who overtly breaches a duty of
care.
Mr. Carter. From a judge's perspective, we have a saying;
you know, anybody with $150 in their pocket and directions to
the courthouse can file a lawsuit. And we know because we've
got lots of them that come in there that have no credibility
whatsoever.
But the issue here is--and all three of these witnesses
have said it--the perception. And the perception is that they
are liable and they've got this long, extended liability that
extends to them. And, therefore, when they try to do good, they
are punished for their good.
We used to have Good Samaritan laws in this country that
we--in the history of our law protected Good Samaritans. Those
things have long since gone away. Doctors no longer stop on the
side of the road to help people. And, you know, ultimately kids
are not going to play baseball or they're not going to wrestle
or play football. I have a volunteer fire department in my
district that covers 50 percent of Harris County, our most
populous district. And yet, they are important to the people
that live in that--the millions of people that live in that
area. And why shouldn't we have some sort of protection for
them? And if you've got a better solution, I want to hear it. I
keep hearing this is not a good solution, but we have a
problem. What is the better solution? And that's what lawyers
need to step up and start telling us.
Mr. Popper. With all due respect, I think if we continue to
focus on having hearings where we stimulate fear, then there
will be a lot of fear. If instead we had a hearing where we
could focus on rule 11 sanctions, if, in fact, people are
bringing lawsuits, lawyers are bringing lawsuits without a
legitimate basis, then the lawyer gets sanctioned. And that's
fine. That was asked earlier: Are there parts of tort reform
that make sense? Well, sure, that's a great part. And if people
are bringing lawsuits and the lawsuits are being thrown out and
the lawyer is doing it just to see if he can squeeze something
out of the insurance company, like you, I would agree that
that's an abuse.
Mr. Carter. Well, we've had those hearings this year----
Mr. Smith. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for
his questions.
Mr. Scott. Thank you, Mr. Chairman.
We've had--generally, our policy has been to consider Good
Samaritan laws in there, but they're done on a State-by-State
basis, and they're balanced with other State laws. You consider
whether or not there's indigent health care in Medicaid. You
consider whether they have the collateral source rule, damage
caps, what the jury award history is. And after all that
balancing, you put the Good Samaritan laws in that mix. Here
we're doing a Federal law, and it has a one-way exemption, so
it's not part of that balance at all.
I also want to point out that what I've heard sounds like
an insurance policy, not a tort policy. But let me ask a
couple--a few specific questions.
Mr. Stittleburg, is a waiver of liability effective in
cases of donations?
Mr. Stittleburg. In my view, sir, it can be effective. The
problem is in obtaining it. Frequently, you have the situation
where the donor simply wants to donate equipment. They don't
want to be involved in having to hire an attorney to draw a
waiver.
Mr. Scott. Wait a minute. And the donor wants to make a
donation, and the donee doesn't want to do a waiver?
Mr. Stittleburg. The donee----
Mr. Scott. Wait a minute. The waiver is effective. That was
your answer? Because I have a lot of different questions.
Mr. Stittleburg. I believe that's correct, sir.
Mr. Scott. Okay. This bill, does it protect a manufacturer
making donations? You said--talked about different Governmental
agencies. Does it immunize a manufacturer giving defective
products?
Mr. Stittleburg. No, sir. Manufacturers are excluded in the
definition.
Mr. Scott. Okay. I missed that.
Mr. Stittleburg. If the person's a manufacturer of fire
control or fire rescue equipment, they do not enjoy the
exemption.
Mr. Scott. Okay. Do you have a--can you cite the number of
claims and the amount of actual payouts in cases involving
donations?
Mr. Stittleburg. No, sir, I cannot. And, in fact, just to
distinguish this bill from the other bills, this is not a bill
basically that relates to insurance claims. This bill is
designed to facilitate and encourage the donation.
Mr. Scott. Well, wait a minute. You are not aware of any
claims paid as a result of these kinds of donations?
Mr. Stittleburg. That's correct, sir.
Mr. Scott. Mr. Kanaby, I'm a little concerned about the
kinds of cases we're talking about. You indicated that the
cases that the gentleman from Michigan mentioned were not
covered. You have inferred that the injury cases are what we're
talking about. Is that right?
Mr. Kanaby. That is correct.
Mr. Scott. Other kinds of cases are not to be covered, just
injury cases?
Mr. Kanaby. Gross negligence, including injuries. If
injuries involve gross negligence----
Mr. Scott. The definition says non-profit athletic
organizations shall not be liable for harm caused by an act or
omission by the non-profit organization for adoption of rules.
That doesn't say anything about injuries.
Mr. Kanaby. That is correct, but it is not our intent to
avoid----
Mr. Scott. Your intent is just to cover the injury cases?
Mr. Kanaby. Our intent is just to cover the fact that we
write the playing rules in a specific sport. The issue of gross
negligence, even within those playing rules--it is not our
intention to have them excluded if someone is grossly negligent
in terms of implementing their responsibilities.
Mr. Scott. How about racial discrimination cases?
Mr. Kanaby. Absolutely no inclusion of that as well, nor
gender, nor race, or disabilities.
Mr. Scott. I mean, are you talking about injury cases
alone? Or are you talking about all kinds of litigation?
Mr. Kanaby. No, just injury cases alone basically whereby
that would involve negligence. Other cases might involve us,
for example, a discrimination case, we don't--if we're pulled
into a discrimination case, then I--well, a good example would
be the Martin vs. NCAA. If there was a local school, for
example, that prohibited a youngster from participating because
of AIDS, and that to us basically is a situation between that
local school and the individual parties. It would be our intent
that we should not be brought into that kind of a situation
simply because we write the playing rules for that sport. Our
position is always that all youngsters----
Mr. Scott. So you're not--that's not an injury kind of
case.
Mr. Kanaby. That's correct. But our position----
Mr. Scott. You're talking about all kinds of different
litigation you want to be exempt from.
Mr. Kanaby. That's correct. But the situations that I'm
describing such as--in the Martin case, our position basically
to our member State associations and they to their member
schools basically is that anything that would involve ADA, et
cetera, reasonable accommodation should be made, the letter of
the law should be following, a hearing should be held on an
individual basis, and cases decided on that basis.
Mr. Scott. Mr. Chairman, I ask unanimous consent for an
additional minute.
Mr. Smith. Without objection, the gentleman is recognized
for an additional minute.
Mr. Scott. Mr. Boyer, I welcome you to Washington.
Mr. Boyer. Thank you. I spent 29 years here.
Mr. Scott. You've indicated a problem with non-owner access
to insurance with planes. That cannot be just a problem for
charitable donation situations.
Mr. Boyer. No. It's a case of any organization unable to
get non-owner insurance.
Mr. Scott. If you've got a non-owner doing commercial work,
borrowing somebody's plane to fly, other kinds--a personal
vacation kind of stuff.
Mr. Boyer. Individual pilots, non-commercial entities, can
buy non-owned liability insurance. Only organizations no longer
can buy it.
Mr. Scott. So if somebody's a pilot doing charitable work,
they can't get insurance----
Mr. Boyer. Yes, they can. The pilots--the pilots can get
insurance. In fact, the pilots are--it's their insurance that
is the redress for a patient that might be injured or killed.
The issue of willful or criminal behavior is a non-issue here.
The issue of lowering the standards for the pilots or their
pilotage is not an issue because the pilots can get insurance,
have insurance, are required to have insurance. And the----
Mr. Scott. If I could just ask one quick follow-up. Is that
a per flight insurance or an annual----
Mr. Boyer. No. It's usually an annual. If I am a plane
owner, I have insurance on my airplane, including liability. If
I rent airplanes--and some of that is done--I can buy as an
individual pilot a non-owned aircraft liability policy. But the
organizations cannot.
Mr. Smith. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes, is recognized for
his questions.
Mr. Forbes. Thank you, Mr. Chairman. I thank all of you
gentlemen for being here today. And, Mr. Chairman, thank you
for holding this hearing. I think we're talking about really
today what kind of society that we want to live in, and you
heard it, I think, mischaracterized earlier that this was an
attack on the legal system. This is no more an attack on the
legal system than anything that I hear, you know, coming down.
It makes good political spin, but it's not an attack on the
legal system.
I was a partner in one of the largest law firms in
southeastern Virginia. We had over 100 lawyers. And I can tell
you, there are a lot of judges and there are a lot of attorneys
in the legal system who don't like what we sometimes see with a
handful of lawyers who keep good, ordinary citizens from doing
things we want them to do in society.
We heard earlier that there were all these abuses that are
uncorrected, and I would just ask also that in the record
anybody place in the record this list of abuses that all of
your organizations are doing right now that have not been
corrected, because I don't think they exist either.
And the real question for us is this: We live in a society
where we see somebody in need and people walk by them because
they don't have time to help that individual. And you represent
organizations where people have the time and the willingness to
give--to help, but what they don't want to do is lose their
homes and lose everything else they have. And that discourages
them sometimes from taking these activities.
And I've been in the position over the years of having to
look at people that would want to help you and tell them you
can't do that because of the exposure that you might have.
Mr. Boyer, let me ask you first of all, have you had
volunteers not wanting to help or potential directors not
wanting to serve because of the potential liability or
exposure?
Mr. Boyer. Absolutely. It puts a dampening effect on
recruiting board members. It puts a dampening effect on
recruiting perhaps a wealthy individual who has an airplane
who'd like to help but all of a sudden feels that his net worth
is in a sense put out there for exposure.
Mr. Forbes. Now, you mentioned in your testimony that
groups that would like to refer people in need to your
organizations are hesitant to do so out of exposure to
liability. What effect would this legislation have on the
ability of these groups to recommend people to you, if any?
Mr. Boyer. Yes, what you're mentioning is that just even in
many cases the simple act of recommending to a patient that
they explore the possibility of this free transportation,
groups such as the American Cancer Society, the Shriners, and
the others, are reluctant to do that because of the fear of
liability. If that fear is done away with, if the referral
portion of H.R. 1084 is passed, then those organizations will
be providing--referring patients and their job will get done a
lot better because the organizations will be able to cooperate
and work together.
Mr. Forbes. In times of disaster or emergency, does the FAA
allow your volunteer pilots to fly, or are they grounded such
as the situation we had with September----
Mr. Boyer. Volunteer pilots through this program were
flying on September 12th. No restriction. Airlines grounded,
everybody else grounds. The volunteer pilots were flying. We
have a very good, close working relationship with the Federal
Aviation Administration, and that was no problem at all.
Mr. Forbes. And if they're not flying, is there some of
these patients that aren't going to get the treatment that they
need and medical care that they need in that particular
situation?
Mr. Boyer. Well, in many instances, a patient or a
patient's family's ability to travel long distances to
specialized medical care--if they can't afford it, they can't
get the care. It's that simple.
Mr. Forbes. And if they don't get the care, that's because
you didn't have people that were willing to volunteer because
of the threat of lawsuits that we've heard today aren't showing
up because there are these abuses that need to be corrected,
apparently, that are even taking place. Is that correct?
Mr. Boyer. That's absolutely correct. It's the relationship
between the pilot and the Federal Aviation Administration that
sets the standards for professional conduct of the pilot. The
volunteer pilot organizations do not get in between a pilot and
the Federal air regulations. So this has nothing to do with
standards of how pilots will operate.
Mr. Forbes. Are there services that groups such as yours do
not currently provide that you would be likely to provide if
this change took place and referrals were more likely?
Mr. Boyer. There's a good case in point there. The American
Red Cross, with whom we're in discussions, negotiations,
whatever the right term is, has been very, very reluctant to--
as part of their disaster preparedness--say that their
volunteers, their disaster volunteers, could be flown by a
volunteer pilot organization to the point of a disaster. If
this law passes, it removes that obstacle.
Mr. Forbes. And if this legislation were in place and you
had an accident, what sort of recourse would the injured
families have?
Mr. Boyer. Their recourse is to the pilots and the pilots'
insurance. And to the extent that there is willful or criminal
activity, obviously that insurance doesn't apply, and it's with
the pilot totally, because the organizations are nothing more
than matchmakers between the volunteer pilot who wants to help
and the needy patient that needs the help. The organization
puts the two of them together. The organization has nothing to
do with the conduct of the flight per se. That's the
relationship between the pilot and the Federal air regulations
as administered by the FAA.
Mr. Smith. The gentleman's time has expired. Thank you.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I would
say to my colleagues and to the witnesses, this is certainly a
very important hearing. I question the wisdom of the hearing,
and I'm hoping to be able to peruse the testimony of all of the
witnesses so that we can come to a common good, and that is, to
promote volunteerism and to enhance opportunities for our
community.
At the same time, I would raise the specter of an existing
legislation, the Volunteer Protection Act, that is in
existence. And as I understand it, the Volunteer Protection Act
is--merely permits but does not require States to provide
adequate measures to ensure that non-profit organizations
operate in a safe manner. And it goes on to suggest a variety
of aspects of this particular legislation.
It has its weaknesses, even though it has good intentions,
and the legislation that is coming forward raises concerns that
I think we should answer if we're trying to be helpful.
One of the points that I find a concern is that it looks as
if all of these laws would preempt State law, and I cite, for
example, a law in Texas under the Texas Education Code that
talks about the idea of cooperating in securing volunteer
equipment. However, the language here that is not in the
Federal bill specifically states the equipment being donated in
good faith, and I think it also has some language in here about
malice and a number of other provisions that would seemingly be
protective of innocent persons. Also, the language, the Federal
language, does not have any language of good faith or bad
faith, and I think that's extremely important as a measure of
protection to the recipient of this wonderful largesse.
Let me ask Chief Stittleburg, again, if he could explain to
me what would happen if a volunteer is seriously injured or
killed because of the malfunction of old, used equipment. Who
then should be held accountable? Could you be more precise on
that?
Mr. Stittleburg. In the event that were to occur, there
would still be the opportunity to make claims against the
manufacturer, if indeed the product was defective. There would
also be the workers' compensation benefits available to the
injured employee, assuming this was a line-of-duty injury.
Ms. Jackson Lee. Then what you're saying is that that
particular individual would have to go--stair-step up to a
third party. Is there some understanding in the workmens'
compensation laws that would not preclude that individual who
was not using authorized equipment or equipment associated with
his public responsibility because it was volunteer equipment,
how do we know that the workmen compensation laws--have you
reviewed State compensation laws to know that there would not
be a preclusion?
Additionally, on the manufacturing end, there is questions
as to whether the manufacturers would have a bar if they
thought that the equipment was not being used properly.
Mr. Stittleburg. That issue will always be there regardless
of whether it's been donated by another department or whether
it's an initial purchase. The use to which that equipment was
then put is always going to be raised by the manufacturer.
Ms. Jackson Lee. Well, I think the point, Chief, is that if
there are already known bars that are not being made clear to
the users of those vehicles, unlike a circumstance where you
are using a manufactured product for its right reason, if the
manufacturer determines that I had nothing to do with it being
transferred for free to someone, et cetera, and there's a bar
or there may be something in place about secondhand, thirdhand
users, that may put a more onerous burden on proving and
getting relief for the injured people or the killed--or the
individual that lost their life.
Mr. Stittleburg. Well, ma'am, I have a different reading of
it. The bill, of course, specifically exempts protection to the
manufacturer of the fire control or fire rescue equipment.
Ms. Jackson Lee. I didn't hear what you said.
Mr. Stittleburg. The bill specifically exempts protection--
in other words, does not apply to the manufacturer of the fire
control or fire rescue equipment.
Ms. Jackson Lee. Are you suggesting that it doesn't apply
to provide them with cover?
Mr. Stittleburg. Yes, sir--yes, ma'am, I am. That's my
reading of the bill.
Ms. Jackson Lee. That they can sue the manufacturer?
Mr. Stittleburg. That is correct, ma'am.
Ms. Jackson Lee. My reading is not such, and when I was
raising questions, they would contravene that, and that's what
I'm saying, making their own argument.
Let me ask Mr. Popper----
Mr. Smith. The gentlewoman's time has expired. Without
objection----
Ms. Jackson Lee. I'd ask 1 minute additional time.
Mr. Smith. Without objection, she's recognized for one more
minute.
Ms. Jackson Lee. Thank you very much.
Professor Popper, what is the downside, if you will, of,
one, removing the State protection, meaning usurping State laws
that may pertain to this kind--these kinds of generous
activities? And what would be the outcome of preempting State
laws that may be more--may be more strict?
Mr. Popper. You have 200 years of history of tort law in
virtually all of the affected States that would suddenly be
swept aside were these bills to be adopted. You have specific
provisions regarding warranty. You have the manufacturers'
claims provision. You have the developed history of strict
liability and tort. All of that would be swept under the table,
would no longer be applicable, because at the Federal level,
none of that, at least at the present time, would be available
for cause of action and tort. It would change the dynamic of
tort law. And perhaps the most profound change is that you
would be sweeping away State law without creating concomitant
Federal court jurisdiction. So you're not moving into Federal
court for some Federal set of claims under legislation that
Congress could pass. You would be giving back to the State a
system where its own law has been removed, inserting nothing in
its place. That's the downside of preemption. Unless there's
something in its place federally, you're literally adrift in
terms of the tort system.
Ms. Jackson Lee. So any language in this bill that says we
can go against the manufacturer could be thwarted on the State
level by--or be thwarted by the manufacturer by some other
defense.
Mr. Popper. Yes, that's true. The bill seems to
specifically exempt manufacturers, but once it preempts State
law, it leaves a void.
Ms. Jackson Lee. It leaves a void.
Mr. Smith. The gentlewoman's time has expired.
Ms. Jackson Lee. That's the point I wanted to make. Thank
you very much, Mr. Chairman.
Mr. Smith. The gentleman from Michigan----
Mr. Conyers. Mr. Chairman, I rise to strike----
Mr. Smith.--is recognized for a unanimous consent request.
Mr. Conyers. I'd rather just strike the requisite number of
words, because I want to add a question to it.
Mr. Smith. Okay. The gentleman is recognized.
Mr. Conyers. Thank you very much. Thank you, Mr. Chairman.
I wanted to thank the witnesses, first of all, and I want to
ask a unanimous consent request. But before I do, I wanted to
ask this question: Is it true--well, I going to make a
statement, and then you can tell me if it's--if it's true or
false or that you don't know.
Poorer return on insurance investments cause premiums to go
up: true or false or I don't know. Chief Stittleburg?
Mr. Stittleburg. I don't know. That's not a part of the
bill that we're interested in.
Mr. Conyers. Of course.
Mr. Kanaby?
Mr. Kanaby. I would concur with Mr. Stittleburg's response.
Mr. Conyers. In other words, you don't know either?
Mr. Kanaby. I think it's a myriad of factors. I don't think
that it can be held within the constriction of the question
itself.
Mr. Conyers. Okay. Mr. Boyer?
Mr. Boyer. I do not know enough about the insurance
industry to respond.
Mr. Conyers. Okay. The reason we have to all look at this
together is because that's what much of the testimony in these
hearings before the Committee have demonstrated, is that you
can create all the restrictions on tort liability you want, but
if the insurance companies have generally had a poor year, the
returns are poor, the premiums go up. And it's not--it's not
connected to how many people file the lawsuit, nor even how
much--how many recovered after the lawsuit was filed.
But, Mr. Kanaby, the book that you published, the 2004
Wrestling Rules Book, was very fascinated. I--fascinating. I
was particularly drawn to the officials' wrestling signals,
high school and college, which I always wondered what those
things meant when I was watching them. And then from pages 55
to 72, you illustrate all of the kinds of violations in
wrestling that referees have to be aware of.
Was there any other reason that this was distributed to all
of the Members of the Committee?
Mr. Kanaby. No, sir. We just wanted to provide the
Committee with an example of one of the 17 rule books that we
publish in various sports. We just happened to pick wrestling,
but we're pleased that we were able to pick the one that helped
you in terms of your understanding of the signals. But we
publish 16 other sports' rules in this form.
Mr. Conyers. Well, as long as you're not sending us some
quiet signal about wrestling in the Congress.
Mr. Kanaby. No, sir. But if there are other sports you----
Mr. Conyers. We have enough inter-college--intercollegiate
sports activities going on here without adding wrestling to the
number.
Mr. Kanaby. Well, perhaps some of those holds would be of
assistance, sir. [Laughter.]
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Conyers. And your choice of this
particular brochure had nothing to do with the fact that our
speaker's a former wrestling coach, I presume, either.
Mr. Conyers. Yes.
Mr. Kanaby. No comment.
Mr. Smith. Oh, maybe there's something there.
Mr. Scott. Mr. Chairman, could I ask one additional
question?
Mr. Smith. Mr. Scott, you will be recognized to ask an
additional question. We are expecting a vote momentarily, and
some of us were hoping to get to the House floor before that
vote occurred. But the gentleman is recognized for 1 minute for
an additional question, without objection.
Mr. Scott. To Mr. Popper, of all the bills, Mr. Boyer's
bill involving pilots has a provision that it only kicks in if
the pilot is licensed and has insurance, so that if there is an
injury, the injured party has recourse. Does that make that
bill different from the other two?
Mr. Popper. I think these bills are different in many
respects, one to the next, and that is a distinguishing feature
in that bill, yes.
Mr. Scott. Okay. Thank you.
Mr. Smith. All right. Thank you, Mr. Scott.
Mr. Carter. Mr. Chairman?
Mr. Smith. Also, I'd like to ask unanimous consent that
written statements by the sponsors of the three pieces of
legislation that we're considering today be made a part of the
record as well.
Mr. Carter. Mr. Chairman, may I be recognized for one
additional comment?
Mr. Smith. The gentleman from Texas is recognized for an
additional minute.
Mr. Carter. Mr. Popper, I was picking on you a little while
ago. There's a reason for that. I honestly believe that we
lawyers have some solutions that we're not--we're not willing
to talk about, and I'm really coming to every one of these
hearings hoping that I will hear the bar step forward and start
offering some solutions for some of these problems that we're
seeing that may be different from the tort reform problems that
we're looking at.
So I think we have a responsibility, and that's why I
raised--I wasn't picking on you individually. I look for that
every time we have a hearing, and I don't hear it, and I would
really like to hear it. And that's why I was asking those
questions. I would like to see us try to solve some of these
problems.
Mr. Popper. I agree, and I'd just make one final comment in
response, which is there are areas, obviously, there are
situations where lawyers are charging 50-, 60-percent fees.
It's outrageous. There has been, in terms of the legal system
itself, a downplay of classical doctrines like res ipsa
loquitur, which, if properly understood at the State level,
could avoid a lot of the problems we have with tort reform. And
I'd be happy to have a dialogue with you about that, and I
appreciate your comment.
Mr. Forbes. Yes, sir. Well, thank you. I'd welcome that.
Mr. Smith. That's an encouraging response, Mr. Popper.
Thank you for that. Thank you, Mr. Carter.
I thank all the Members for being present today, and we
thank our four witnesses for contributing a lot of information,
insight, and expertise on the subjects at hand.
We stand adjourned.
[Whereupon, at 11:25 a.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Michael N. Castle, a Representative
in Congress From the State of Delaware
Mr. Castle. Mr. Chairman, I rise today in support of legislation I
introduced, the ``Good Samaritan Volunteer Firefighter Assistance
Act.'' This legislation removes a barrier which has prevented some
organizations from donating surplus fire fighting equipment to needy
fire departments. Under current law, the threat of civil liability has
caused some organizations to destroy fire equipment, rather than
donating it to volunteer, rural and other financially-strapped
departments.
We know that every day, across the United States, firefighters
respond to calls for help. We are grateful that these brave men and
women work to save our lives and protect our homes and businesses. We
presume that these firefighters work in departments which have the
latest and best firefighting and protective equipment. What we must
recognize is that there are an estimated 30,000 firefighters who risk
their lives daily due to a lack of basic Personal Protective Equipment
(PPE). In both rural and urban fire departments, limited budgets make
it difficult to purchase more than fuel and minimum maintenance. There
is not enough money to buy new equipment. At the same time, certain
industries are constantly improving and updating the fire protection
equipment to take advantage of new, state-of-the-art innovation.
Sometimes, the surplus equipment may be almost new or has never been
used to put out a single fire. Sadly, the threat of civil liability
causes many organizations to destroy, rather than donate, millions of
dollars of quality fire equipment.
Not only do volunteer fire departments provide an indispensable
service, some estimates indicate that the nearly 800,000 volunteer
firefighters nationwide save state and local governments $36.8 billion
a year. While volunteering to fight fires, these same, selfless
individuals are asked to raise funds to pay for new equipment. Bake
sales, pot luck dinners, and raffles consume valuable time that could
be better spent training to respond to emergencies. All this, while
surplus equipment is being destroyed.
In states that have removed liability barriers, such as Texas, fire
companies have received millions of dollars in quality fire fighting
equipment. The generosity and good will of private entities donating
surplus fire equipment to volunteer fire companies are well received by
the firefighters and the communities. The donated fire equipment will
undergo a safety inspection by the fire company to make sure
firefighters and the public are safe.
We can help solve this problem. Congress can respond to the needs
of fire companies by removing civil liability barriers. This bill
accomplishes this by raising the current liability standard from
negligence to gross negligence. Mr. Chairman, I thank you for holding
this hearing today and calling attention to this important issue and I
look forward to continuing to work with the Chairman and the Judiciary
Committee in helping our nation's firefighters.
----------
Prepared Statement of the Honorable Ed Schrock, a Representative in
Congress From the State of Virginia
Thank you, Chairman Sensenbrenner for holding this hearing today on
tort reform and on H.R. 1084, the Volunteer Pilot Organization
Protection Act. I am grateful that the Judiciary Committee is taking
this opportunity to examine ways to improve to improve the Volunteer
Protection Act in order to bring protection to these worthwhile
volunteers.
The charitable flying community is facing a crisis, and if action
is not taken, I am afraid the community is on the brink of a breakdown.
Escalating insurance costs have become prohibitively expensive for
these groups that survive through donations of both time and money and
operate on small margins. Increasing insurance costs have forced many
volunteer pilot organizations to operate without insurance coverage,
and a single incident with one of the volunteer pilots could shut down
the entire charitable flying sector.
For many years volunteer pilot organizations have helped those in
need to get the medical care they require. Thousands have relied on
these groups to provide free transportation to get specialized medical
treatment when they otherwise could not have afforded transportation
costs. Every year, thousands of pilots with years of experience and
hundreds of flight hours under their belt volunteer their time to fly
these missions. It is essential that we keep these lines of
transportation open to the people who need it the most. It would
certainly be a tragedy if one lawsuit, or even the threat of a lawsuit,
were to bring down this network. This is the crisis we are facing
today.
H.R. 1084, the Volunteer Pilot Organization Protect Act, will
ensure that these organizations can continue to fly without this threat
of collapse surrounding them. The list of groups supporting this
legislation is extensive, including:
National Air Transportation Association
Children's Organ Transplant Association
National Association of Hospital Hospitality Houses
Health and Medical Research Charities of America
National Organization of Rare Disorders
National Foundation for Transplants
Independent Charities of America
Shriners Hospitals for Children
US Airways
I thank the Judiciary Committee for holding this hearing, and I
look forward to working with the Committee for further consideration of
this legislation.
----------
Prepared Statement of the Honorable Mark E. Souder, a Representative in
Congress From the State of Indiana
I would like to take this opportunity to thank Chairman
Sensenbrenner for conducting today's hearing and, in particular, for
considering H.R. 3369, the Non-Profit Athletic Association Protection
Act of 2003.
As today's witnesses will attest to, volunteer organizations across
the nation are under attack by overreaching personal injury lawyers.
Notably, in the past decade there has been an extraordinary increase in
legal attacks against the rule-making bodies who determine the rules of
play that govern amateur athletic competition. These cases rely on the
curious presumption that rules themselves should eliminate ALL risk in
athletic competition. Objectively, however, all athletic activities
involve an element of risk, and rulemaking bodies can merely anticipate
risk--they can not prevent every injury that could result from
participation in athletic competition. Repeatedly defending against
claims based on this assumption has resulted in astronomical legal
bills for amateur and education-based athletic organizations.
As a direct result of the increased frequency of these legal
attacks, the insurance industry has exhibited a reluctance to offer
policies covering non-profit athletics. Moreover, those few insurance
companies that do continue to offer such policies have drastically
increased premiums and deductibles, thus placing a strain on the non-
profits' financial status. For example, sports governing authorities
have seen outrageous percentage increases in liability insurance rates
from 121 percent to 1000 percent. Moreover, as Robert F. Kanaby will
testify, in the past three years the cost of liability insurance for
the National Federation of State High School Associations (NFHS) has
risen threefold, to in excess of $1 million annually. This is greater
than 10 percent of the organization's $9 million budget, and this
unaffordable premium is certain to rise. Amateur sports rule-making
organizations like NFHS can neither afford such continued premium
increases, nor can they operate without liability insurance.
Without action, the escalation in abusive lawsuits and the
attendant costs to rule-making organizations will affect the ability of
amateur and education-based athletic leagues to continue operating
competitively. The Non-Profit Athletic Association Protection Act seeks
to insure the continued viability of amateur and education based
athletics by shielding rulemaking bodies from the devastating
consequences of continued abusive lawsuits. Millions of children and
young adults across America rely on organizations like the NFHS, Little
League baseball and the NCAA in their athletic pursuits, and their
sporting endeavors should not be imperiled because of the excesses of
trial lawyers.
I urge my colleagues to support H.R. 3369.