[Congressional Record Volume 143, Number 41 (Wednesday, April 9, 1997)]
[Senate]
[Pages S2926-S2931]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



      By Mr. CRAIG (for himself and Mr. Kempthorne):
  S. 538. A bill to authorize the Secretary of the Interior to convey 
certain facilities of the Minidoka project to the Burley Irrigation 
District and for other purposes; to the Committee on Energy and Natural 
Resources.


              the burley irrigation district transfer act

 Mr. CRAIG. Mr. President, I am today introducing a bill to 
authorize the Secretary of the Interior to transfer certain facilities 
at the Minidoka irrigation project to the Burley Irrigation District. 
The introduction of this legislation results from a hearing I held in 
the Senate Energy Committee in the past Congress and is nearly 
identical to S. 1291 from that Congress. I am introducing this project-
specific legislation because it is obvious to me a general transfer 
bill is not workable; each reclamation project has unique qualities, 
and projects should be addressed individually or in distinct groupings.
  The Reclamation Act of 1902 was part of the history of Federal public 
land laws designed to transfer lands out of Federal ownership and to 
settle this Nation. The origins of that policy predate the Constitution 
and derive from the early debates that led to the Northwest Ordinance 
of 1787. The particular needs and circumstances of the arid and 
semiarid lands west of the 100th meridian led to various proposals to 
reclaim the lands, including the Desert Land Act and the Carey Act. In 
his State of the Union Message of 1901, President Theodore Roosevelt 
finally called for the Federal Government to intervene to develop the 
reservoirs and works necessary to accomplish such irrigation. The 
reclamation program was enormously successful. It grew from the 
irrigation program contemplated by one President Roosevelt to the 
massive works constructed four decades later by the second President 
Roosevelt. For those of us in the Northwest, there is a very personal 
meaning to a line from Woody Guthrie's song about the Columbia that 
goes: ``your power is turning our darkness to dawn, so roll on 
Columbia, roll on.''
  If what is known now had been known then, some projects may have been 
constructed differently. However, that is not the question we have 
before us. The central question is whether and to what extent the 
Federal Government should seek to transfer the title and responsibility 
for these projects. Has the Federal mission been accomplished?
  The best transfer case would be the single purpose irrigation or 
municipal and industrial [M&I] system that is fully repaid, operation 
has long since been transferred, and the water rights are held 
privately. That is the case with the Burley Irrigation District 
transfer.
  The transfer of title is not a new idea. Authority to transfer title 
to the All American Canal is contained in section 7 of the Boulder 
Canyon Project Act of 1928. General authority is contained in the 1955 
Distribution Systems Loan Act. Recently, Congress passed legislation 
dealing with Elephant Butte and Vermejo.
  The Burley Irrigation District is part of the Minidoka project that 
was built under the authorization of the 1902. Reclamation Act. By a 
contract executed in 1926, the District assumed the operation and 
maintenance of the system.
  All construction contracts and costs for the canals system, pumping 
plants, power house, transmission lines and other improvements have 
been paid in full. Contracts for storage space at Minidoka, American 
Falls, and Palisades reservoirs have been paid in full, along with all 
maintenance fees. This project is a perfect example of the Federal 
Government maintaining only a bare title, and that title should now be 
transferred to the project recipients who have paid for the facilities 
and the rights of the Burley Irrigation District.
                                 ______
                                 
      By Mr. BIDEN (for himself, Ms. Mikulski, and Mr. Torricelli):
  S. 540. A bill to amend title XVIII of the Social Security Act to 
provide annual screening mammography and waive coinsurance for 
screening mammography for women age 65 or older under the Medicare 
Program; to the Committee on Finance.


            the medicare mammography screening expansion act

 Mr. BIDEN. Mr. President, there is no doubt a lot of women in 
their forties who are awfully confused these days about whether they 
should receive a regular mammogram to test for breast cancer. Over the 
last several years--and especially over the last couple of months--the 
debate in the scientific community and the conflicting scientific 
studies have not painted a very clear picture for younger women.
  But, what is perfectly clear--what is not in dispute--is that older 
women should receive regular mammograms. Mammograms save lives. And, 
the scientific studies confirm it. If all women over 50 received 
regular mammograms, breast cancer mortality could be reduced by one-
third. The recommended screening guidelines reflect this, no matter 
what group's guidelines you read. The American Cancer Society, the 
American College of Obstetricians and Gynecologists, the American 
Medical Association, the American Academy of Family Physicians, and the 
American College of Physicians all recommend that women over 50 receive 
annual mammograms.
  Now, here's the problem. Women 65 and over have Medicare as their 
health insurance. The guidelines tell them--and their doctors are 
telling them--to get a mammogram once a year. But, Medicare pays for 
mammograms only once every 2 years. This means that an elderly woman 
must pay the cost of every other mammogram herself--or go without a 
mammogram every other year. And, even when Medicare pays for the 
mammogram, the woman is still responsible for at least 20 percent of 
the cost.
  The result, Mr. President, is that too many women are following 
Medicare's payment rules--and not getting tested--rather than following 
the scientific guidelines--and being tested.
  Two years ago, a study was published in the New England Journal of 
Medicine. It found that only 14.4 percent of women without Medicare 
supplemental insurance--that is, women who do not have, on top of 
Medicare, private insurance that may cover mammograms on an annual 
basis--only 14.4 percent of those women received even a mammogram once 
every 2 years, let alone annually. Even among those women with 
supplemental insurance, less than half had a mammogram over the course 
of 2 years. The study concluded that a woman's inability to pay a share 
of the costs for mammograms ``is an obstacle to the effective mass 
screening of older women for breast cancer.'' And, I would add, an 
obstacle to saving thousands of lives.
  So, Mr. President, today I am introducing the Medicare Mammography 
Screening Expansion Act. This bill does two things. First, it would 
cover mammograms under Medicare once every year, as recommended by the 
guidelines, instead of once every 2 years, which is now the law. 
Second, it would eliminate the 20-percent copayment that is currently 
charged to women when they receive a mammogram, so that women are not 
discouraged from obtaining this important preventive measure because of 
the cost. I should note that eliminating the copayment is not 
unprecedented. Medicare already does not charge copayments for flu 
shots and most clinical laboratory tests.
  Mr. President, we know that mammograms save lives. Yet, current 
Medicare policy creates barriers that are

[[Page S2927]]

preventing women from seeking this simple, life-saving procedure. I 
urge my colleagues to join me in making mammography screenings more 
available and more affordable for American women.
                                 ______
                                 
      By Mr. ALLARD:
  S. 541. A bill to provide for an exchange of lands with the city of 
Greeley, CO, and the Water Supply and Storage Co. to eliminate private 
inholdings in wilderness areas, and for other purposes; to the 
Committee on Energy and Natural Resources.


              the rockwell ranch land transfer act of 1997

  Mr. ALLARD. Mr. President, today I am introducing legislation that 
would provide for a land exchange between the city of Greeley, the 
Water Supply and Storage Co., and the Forest Service. This legislation 
was introduced last year and was passed by the House of Representatives 
as part of the Presidio package. It's my hope that we can pass this 
legislation and have it signed into law before the session ends.
  The city of Greeley and Water Supply and Storage operate eight 
reservoirs in the Arapaho-Roosevelt National Forest. Because of the 
location of the reservoirs they are operated under Forest Service 
supervision. This supervision has at times been controversial due to 
disputes concerning whether being located on Forest Service property 
allows them to divert water in the national forest for purposes other 
than the benefit of the owners. The legislation I am introducing would 
benefit Greeley and Water Supply and Storage by allowing them to 
protect these significant investments. As an additional benefit this 
legislation would put an end to a bitter dispute between Greeley and 
the Forest Service. The national forest would also greatly benefit from 
this legislation. It would receive 708 acres of inholdings within the 
forest and the wilderness area. This land has been sought by the Forest 
Service for some time and this exchange would finally allow them to 
consolidate valuable resources in Colorado.
  I offered this same bill last year when I was in the House of 
Representatives. Unfortunately, it was caught up in election year 
politics, specifically, my election. This year I want to put that 
behind, and work toward passing this legislation as negotiated over the 
past several years with Greeley, and with Water Supply and Storage, and 
with the Forest Service.
  I believe that as introduced this legislation strikes a balance 
between protecting the rights of my constituents in Greeley and 
Thornton and protecting the environment.
  As currently drafted, Greeley and Thornton have not only agreed to 
transfer their inholdings, they have also agreed to continue to 
participate in negotiations with a variety of governmental 
organizations and environmental groups to designate habitat for the 
whooping crane. Furthermore, they have agreed to an improved stream 
flow in the Poudre River as a condition of the exchange and since many 
westerners would rather part with blood than water, I think they've 
gone the extra mile.
  This legislation is win/win for all involved. We should put all the 
politics behind us, pass the legislation, and move on to matters that 
are less easily resolved.
                                 ______
                                 
      By Mr. COVERDELL (for himself, Mr. McConnell, Mr. Abraham, Mr. 
        Santorum, and Mr. Ashcroft):
  S. 544. A bill to provide certain protections to volunteers, 
nonprofit organizations, and governmental entities in lawsuits based on 
the activities of volunteers; to the Committee on the Judiciary.


                  The volunteer protection act of 1997

  Mr. COVERDELL. Mr. President, in just a few weeks, on April 27-29, 
the Presidents' Summit for America's Future will assemble in 
Philadelphia, cochaired by President Clinton and President Bush. This 
is an effort to mobilize millions of citizens and thousands of 
organizations to ensure a bright future for our youth and make 
effective citizen service an integral part of the American way of life. 
A number of leading corporations and service organizations have made 
specific commitments of resources and volunteers to achieve the 
summit's goal.
  The leaders at the summit will issue a great call to action for 
Americans, asking them to volunteer their time and efforts in community 
service. This is in the best tradition of America. The thread of 
helping your neighbor and taking an active part of civic life runs all 
through the history of our Nation. It is woven deeply into the fabric 
of our communities. It is a tie that binds us together as a robust and 
healthy society.
  Yet many who would heed that call to participate in the great 
tradition of volunteerism will not do so. Not because they lack the 
desire or the ability to help, but for fear of punitive litigation. In 
a recent Gallup study one in six volunteers reported withholding their 
services for fear of being sued. About 1 in 10 nonprofit groups report 
the resignation of a volunteer over litigation fears.
  That is why I am today introducing the Volunteer Protection Act of 
1997, a bill to grant immunity from personal civil liability, under 
certain circumstances, to volunteers working for nonprofit 
organizations and governmental entities. Senators McConnell, Abraham, 
Santorum, and Ashcroft have joined me as original cosponsors.
  This act provides that no volunteer of a nonprofit organization or 
governmental entity shall be liable for harm caused by the volunteer's 
acts or omissions on behalf of the organization. To enjoy this 
protection, the volunteer must be acting within the scope of his or her 
responsibilities in the organization and must not cause harm by willful 
or criminal misconduct, gross negligence, or reckless misconduct.
  In other words, this act provides volunteers liability protection for 
simple negligence only. It does not provide immunity from suit for 
misconduct that includes violent crimes, hate crimes, sex crimes, or 
civil rights violations. It does not apply where the defendant was 
under the influence of drugs or alcohol.
  It is intended to protect volunteers who make a simple, honest 
mistake. The injured party will still have the recourse of suing the 
organization itself to be made whole. Nonprofit organizations will 
continue to have the duty to properly screen, train, and supervise 
their volunteers. The organization's liability is not affected. But we 
will free the volunteers from fear of crushing lawsuits for mistakes 
made while trying to do a good deed.
  Federalism concerns arise whenever Congress takes up tort law. Our 
bill gives States flexibility to impose conditions and make exceptions 
to the granting of liability protection. It allows States to 
affirmatively opt out of this law for those cases where both the 
plaintiff and defendant are citizens of the State.
  This bill requires clear and convincing evidence of gross negligence 
before punitive damages may be awarded against a volunteer, nonprofit 
organization, or governmental entity because of a volunteer's actions. 
It also establishes a rule of proportionate liability rather than joint 
and several liability in suits based on the action of a volunteer.
  Mr. President, the Volunteer Protection Act will encourage the spirit 
of civic involvement and volunteerism that is so crucial to a healthy 
civil society and stronger communities. I urge my colleagues to support 
this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 544

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Volunteer Protection Act of 
     1997''.

     SEC. 2. FINDINGS AND PURPOSE.

       The Congress finds and declares that--
       (1) the willingness of volunteers to offer their services 
     is deterred by the potential for liability actions against 
     them and the organizations they serve;
       (2) as a result, many nonprofit public and private 
     organizations and governmental entities, including voluntary 
     associations, social service agencies, educational 
     institutions, and other civic programs, have been adversely 
     affected by the withdrawal of volunteers from boards of 
     directors and service in other capacities;
       (3) the contribution of these programs to their communities 
     is thereby diminished, resulting in fewer and higher cost 
     programs

[[Page S2928]]

     than would be obtainable if volunteers were participating;
       (4) because Federal funds are expended on useful and cost-
     effective social service programs, many of which are national 
     in scope, depend heavily on volunteer participation, and 
     represent some of the most successful public-private 
     partnerships, protection of volunteerism through 
     clarification and limitation of the personal liability risks 
     assumed by the volunteer in connection with such 
     participation is an appropriate subject for Federal 
     legislation;
       (5) services and goods provided by volunteers and nonprofit 
     organizations would often otherwise be provided by private 
     entities that operate in interstate commerce;
       (6) due to high liability costs and unwarranted litigation 
     costs, volunteers and nonprofit organizations face higher 
     costs in purchasing insurance, through interstate insurance 
     markets, to cover their activities; and
       (7) reform efforts should respect the role of the States in 
     the development of civil justice rules, but recognize the 
     national Government's role.
       (b) Purpose.--The purpose of this Act is to promote the 
     interests of social service program beneficiaries and 
     taxpayers and to sustain the availability of programs, 
     nonprofit organizations, and governmental entities that 
     depend on volunteer contributions by reforming the laws to 
     provide certain protections from liability abuses related to 
     volunteers serving nonprofit organizations and governmental 
     entities.

     SEC. 3. PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.

       (a) Preemption.--This Act preempts the laws of any State to 
     the extent that such laws are inconsistent with this Act, 
     except that this Act shall not preempt any State law that 
     provides additional protection from liability relating to--
       (1) volunteers or to any category of volunteers in the 
     performance of services for a nonprofit organization or 
     governmental entity; and
       (2) nonprofit organizations or governmental entities.
       (b) Election of State Regarding Nonapplicability.--This Act 
     shall not apply to any civil action in a State court against 
     a volunteer, nonprofit organization, or governmental entity 
     in which all parties are citizens of the State if such State 
     enacts a statute--
       (1) citing the authority of this subsection;
       (2) declaring the election of such State that this Act 
     shall not apply to such civil action in the State; and
       (3) containing no other provisions.

     SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.

       (a) Liability Protection for Volunteers.--Except as 
     provided in subsections (b) and (d), no volunteer of a 
     nonprofit organization or governmental entity shall be liable 
     for harm caused by an act or omission of the volunteer on 
     behalf of the organization or entity if--
       (1) the volunteer was acting within the scope of the 
     volunteer's responsibilities in the nonprofit organization or 
     governmental entity at the time of the act or omission;
       (2) if appropriate or required, the volunteer was properly 
     licensed, certified, or authorized by the appropriate 
     authorities for the activities or practice in the State in 
     which the harm occurred, where the activities were or 
     practice was undertaken within the scope of the volunteer's 
     responsibilities in the nonprofit organization or 
     governmental entity; and
       (3) the harm was not caused by willful or criminal 
     misconduct, gross negligence, reckless misconduct, or a 
     conscious, flagrant indifference to the rights or safety of 
     the individual harmed by the volunteer.
       (b) Concerning Responsibility of Volunteers to 
     Organizations and Entities.--Nothing in this section shall be 
     construed to affect any civil action brought by any nonprofit 
     organization or any governmental entity against any volunteer 
     of such organization or entity.
       (c) No Effect on Liability of Organization or Entity.--
     Except as provided under subsection (e), nothing in this 
     section shall be construed to affect the liability of any 
     nonprofit organization or governmental entity with respect to 
     harm caused to any person.
       (d) Exceptions to Volunteer Liability Protection.--If the 
     laws of a State limit volunteer liability subject to one or 
     more of the following conditions, such conditions shall not 
     be construed as inconsistent with this section:
       (1) A State law that requires a nonprofit organization or 
     governmental entity to adhere to risk management procedures, 
     including mandatory training of volunteers.
       (2) A State law that makes the organization or entity 
     liable for the acts or omissions of its volunteers to the 
     same extent as an employer is liable for the acts or 
     omissions of its employees.
       (3) A State law that makes a limitation of liability 
     inapplicable if the volunteer was operating a motor vehicle, 
     vessel, aircraft, or other vehicle for which the State 
     requires the operator or vehicle owner to possess an 
     operator's license or to maintain insurance.
       (4) A State law that makes a limitation of liability 
     inapplicable if the civil action was brought by an officer of 
     a State or local government pursuant to State or local law.
       (5) A State law that makes a limitation of liability 
     applicable only if the nonprofit organization or governmental 
     entity provides a financially secure source of recovery for 
     individuals who suffer harm as a result of actions taken by a 
     volunteer on behalf of the organization or entity. A 
     financially secure source of recovery may be an insurance 
     policy within specified limits, comparable coverage from a 
     risk pooling mechanism, equivalent assets, or alternative 
     arrangements that satisfy the State that the organization or 
     entity will be able to pay for losses up to a specified 
     amount. Separate standards for different types of liability 
     exposure may be specified.
       (e) Limitation on Punitive Damages of Volunteers, Nonprofit 
     Organizations, and Governmental Entities.--
       (1) General rule.--Punitive damages may not be awarded 
     against a volunteer, nonprofit organization, or governmental 
     entity in an action brought for harm because of the action of 
     a volunteer acting within the scope of the volunteer's 
     responsibilities to a nonprofit organization or governmental 
     entity unless the claimant establishes by clear and 
     convincing evidence that the harm was proximately caused by 
     an action of such volunteer which constitutes willful or 
     criminal misconduct, or a conscious, flagrant indifference to 
     the rights or safety of the individual harmed.
       (2) Construction.--Paragraph (1) does not create a cause of 
     action for punitive damages and does not preempt or supersede 
     any State law to the extent that such law would further limit 
     the award of punitive damages.
       (f) Exceptions to Limitations on Liability.--The 
     limitations on the liability of a volunteer, nonprofit 
     organization, or governmental entity under this section shall 
     not apply to any misconduct that--
       (1) constitutes a crime of violence (as that term is 
     defined in section 16 of title 18, United States Code) or act 
     of international terrorism (as that term is defined in 
     section 2331 of title 18) for which the defendant has been 
     convicted in any court;
       (2) constitutes a hate crime (as that term is used in the 
     Hate Crime Statistics Act (28 U.S.C. 534 note));
       (3) involves a sexual offense, as defined by applicable 
     State law, for which the defendant has been convicted in any 
     court;
       (4) involves misconduct for which the defendant has been 
     found to have violated a Federal or State civil rights law; 
     or
       (5) where the defendant was under the influence (as 
     determined pursuant to applicable State law) of intoxicating 
     alcohol or any drug at the time of the misconduct.

     SEC. 5. LIABILITY FOR NONECONOMIC LOSS.

       (a) General Rule.--In any civil action against a volunteer, 
     nonprofit organization, or governmental entity based on an 
     action of a volunteer acting within the scope of the 
     volunteer's responsibilities to a nonprofit organization or 
     governmental entity, the liability of each defendant who is a 
     volunteer, nonprofit organization, or governmental entity for 
     noneconomic loss shall be determined in accordance with 
     subsection (b).
       (b) Amount of Liability.--
       (1) In general.--Each defendant shall be liable only for 
     the amount of noneconomic loss allocated to the defendant in 
     direct proportion to the percentage of responsibility of the 
     defendant (determined in accordance with paragraph (2)) for 
     the harm to the claimant with respect to which the defendant 
     is liable. The court shall render a separate judgment against 
     each defendant in an amount determined pursuant to the 
     preceding sentence.
       (2) Percentage of responsibility.--For purposes of 
     determining the amount of noneconomic loss allocated to a 
     defendant under this section, the trier of fact shall 
     determine the percentage of responsibility of each person 
     responsible for the claimant's harm, whether or not such 
     person is a party to the action.

     SEC. 6. DEFINITIONS.

       For purposes of this Act:
       (1) Economic loss.--The term ``economic loss'' means any 
     pecuniary loss resulting from harm (including the loss of 
     earnings or other benefits related to employment, medical 
     expense loss, replacement services loss, loss due to death, 
     burial costs, and loss of business or employment 
     opportunities) to the extent recovery for such loss is 
     allowed under applicable State law.
       (2) Harm.--The term ``harm'' includes physical, 
     nonphysical, economic, and noneconomic losses.
       (3) Noneconomic losses.--The term ``noneconomic losses'' 
     means losses for physical and emotional pain, suffering, 
     inconvenience, physical impairment, mental anguish, 
     disfigurement, loss of enjoyment of life, loss of society and 
     companionship, loss of consortium (other than loss of 
     domestic service), hedonic damages, injury to reputation and 
     all other nonpecuniary losses of any kind or nature.
       (4) Nonprofit organization.--The term ``nonprofit 
     organization'' means--
       (A) any organization described in section 501(c)(3) of the 
     Internal Revenue Code of 1986 and exempt from tax under 
     section 501(a) of such Code; or
       (B) any not-for-profit organization organized and conducted 
     for public benefit and operated primarily for charitable, 
     civic, educational, religious, welfare, or health purposes.
       (5) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, Guam, American Samoa, the Northern 
     Mariana Islands, any other territory or possession of the 
     United States, or

[[Page S2929]]

     any political subdivision of any such State, territory, or 
     possession.
       (6) Volunteer.--The term ``volunteer'' means an individual 
     performing services for a nonprofit organization or a 
     governmental entity who does not receive--
       (A) compensation (other than reimbursement or allowance for 
     expenses actually incurred); or
       (B) any other thing of value in lieu of compensation,

     in excess of $500 per year, and such term includes a 
     volunteer serving as a director, officer, trustee, or direct 
     service volunteer.

     SEC. 7. EFFECTIVE DATE.

       (a) In General.--This Act shall take effect 90 days after 
     the date of enactment of this Act.
       (b) Application.--This Act applies to any claim for harm 
     caused by an act or omission of a volunteer where that claim 
     is filed on or after the effective date of this Act, without 
     regard to whether the harm that is the subject of the claim 
     or the conduct that caused the harm occurred before such 
     effective date.

  Mr. McCONNELL. Mr. President, volunteer service has become a high 
risk venture. Our ``sue happy'' legal culture has ensnared those 
selfless individuals who help worthy organizations and institutions 
through volunteer service. And, these lawsuits are proof that no good 
deed goes unpunished.
  In order to relieve volunteers from this unnecessary and unfair 
burden of liability, I am pleased to join in the introduction of the 
Volunteer Protection Act.
  The litigation craze is hurting the spirit of voluntarism that is an 
integral part of American society. From school chaperones to Girl Scout 
and Boy Scout troop leaders to unpaid rural doctors and nursing home 
aides, volunteers perform valuable services. And, these volunteers are 
being dragged into court and needlessly and unfairly sued. The end 
result? Too many people pointing fingers and too few offering a helping 
hand.
  So, this bill creates immunity from lawsuits for those volunteers who 
act within the scope of their responsibilities, who are properly 
licensed or certified where necessary, and who do not act in a willful, 
criminal or grossly negligent fashion.
  The bill recognizes that the States may enact their own form of 
volunteer protection and provides that State laws may permit the 
following:
  A requirement that the organization or entity adhere to risk 
management procedures, including the training of volunteers;
  A requirement that the organization or entity be accountable for the 
actions of its volunteers in the same way that an employer is liable 
for the acts of its employees;
  An exemption from the liability protection in the event the volunteer 
is using a motor vehicle or similar instrument;
  An exemption from the liability protection if the lawsuit is brought 
by a State or local official; and
  A requirement that the liability protection applies only if the 
nonprofit organization or government entity provides a financially 
secure source of recovery, such as an insurance policy for those who 
suffer harm.
  I look forward to the Senate's prompt consideration of this bill. Our 
communities are depending upon us to enact this pro-volunteer 
legislation. The time has come for us to help those who have given so 
much to all of us.
  Mr. ABRAHAM. Mr. President, I am extremely pleased to rise today to 
join my colleagues, Senator Coverdell and Senator McConnell, in 
introducing the Volunteer Protection Act of 1997. I commend Senators 
Coverdell and McConnell for their leadership in encouraging and 
supporting the voluntarism that is so important to communities in 
Michigan and across this country.
  This long overdue legislation will provide volunteers and nonprofit 
organizations with desperately needed relief from abusive lawsuits 
brought based on the activities of volunteers. Those are precisely the 
activities that we should be protecting and encouraging.
  Last Congress, I spoke on the floor many times concerning the need 
for litigation reform and describing the litigation abuses that plague 
our small businesses, our consumers, our schools, and others. I came to 
Congress as a freshman Senator intending to press for lawsuit reforms, 
and I did. I supported the securities litigation reform legislation, 
which Congress successfully enacted over the President's veto, and I 
also supported the product liability reform bill, which the President 
unfortunately killed with his veto. I also introduced legislation with 
Senator McConnell to provide broader relief in all civil cases, and 
offered floor amendments that would do the same.
  I continue to support broader civil justice reforms and I 
particularly look forward to considering product liability reform 
legislation both in the Commerce Committee and on the floor. But I 
believe that our voluntary, nonprofit organizations urgently need 
protection from current lawsuit abuses. I encourage my colleagues to 
consider the problems facing our community groups and their volunteers, 
and to support this legislation. I hope that in this instance President 
Clinton will support this litigation reform bill, recognize the value 
of volunteers and nonprofit groups, and give them the protection they 
need to keep doing their good deeds.
  Nonprofit organizations hold our Nation together. In them we learn to 
care for our neighbors. They are key to our survival as a nation and we 
must protect them with systemic reforms.
  America has a vast interstate network of 114,000 operating nonprofit 
organizations, ranging from schools to hospitals to clinics to food 
programs.
  This network's revenues totaled $388 billion in 1990. Meanwhile, 
revenues for the 19,000 support institutions, which raise money to fund 
operating organizations came to $29 billion. And total revenues for 
religious congregations were $48 billion. That's $465 billion worth of 
nonprofit activity we enjoyed in 1990 alone, Mr. President.
  Nonprofit organizations rely heavily on volunteers, and Americans 
gladly comply. According to a 1993 report from the Independent Sector, 
a national coalition of 800 organizations, Americans donated 9.7 
billion hours of their time to nonprofit organizations that year. This 
volunteer time produced the equivalent of 5.7 million full time 
volunteers, worth an estimated $112 billion.
  Unfortunately voluntarism is declining nationwide. According to the 
Independent Sector report, the percentage of Americans volunteering 
dropped from 54 percent in 1989 to 51 percent in 1991 and 48 percent in 
1993. Americans also are giving less money. The average household's 
charitable donation dropped from $978 in 1989 to $880 in 1993.
  The decline of giving and volunteering spells danger for our 
voluntary organizations, for the people who depend on them, and for the 
social trust that is based on the spirit of association.
  But why is voluntarism on the decline? Obviously there are a number 
of relevant factors, not least among them the need so many people today 
feel to work ever-harder and ever-longer to bear our growing tax 
burden. But one major reason for the decline is America's litigation 
explosion. Nonprofit organizations are forced to spend an 
increasing amount of time and resources preparing for, avoiding, and/or 
fighting lawsuits. Thus litigation has rendered our nonprofit 
organizations less effective at helping people, and allowed Americans 
to retreat more into their private lives, and away from the public, 
social activity that binds us together as a people.

  The litigation costs facing voluntary associations are many. John 
Graham, on behalf of the American Society of Association Executives 
[ASAE], gave testimony last year arguing that liability insurance 
premiums for associations have increased an average 155 percent in 
recent years. Some of our most revered nonprofit institutions have been 
put at risk by increased liability costs.
  Dr. Creightin Hale of Little League Baseball reports that the 
liability rate for a league increased from $75 to $795 in just 5 years. 
Many leagues cannot afford this added expense, on top of increasing 
costs for helmets and other equipment. These leagues operate without 
insurance or disband altogether, often leaving children with no 
organized sports in their neighborhood.
  What kind of suits add to insurance costs? ASAE reports that one New 
Jersey umpire was forced by a court to pay a catcher $24,000. Why? 
Because the catcher was hit in the eye by a softball while playing 
without a mask. The catcher complained that the umpire should have lent 
him his.
  Organizations that try to escape sky-rocketing insurance costs must 
self-insure, and Andrea Marisi of the Red

[[Page S2930]]

Cross will describe self-insurance costs only as ``huge.'' The result? 
Obviously, we have fewer funds available for providing services than 
would otherwise be the case.''
  Outside insurance generally comes with significant deductibles. 
Charles Kolb of the United Way points out that insurance deductibles 
for his organization fall into the range of $25,000-30,000. When, as 
has been the case in recent years, the organization is subjected to 
three or four lawsuits per year, $100,000 or more must be diverted from 
charitable programs.
  And there are even more costs. Mr. Kolb reports that the costs in 
lost time and money spent on discovery, for example going through files 
for hours on end to establish who did what when, can run into the 
thousands of dollars. Further, as the Boy Scouts' William Cople puts 
it: ``We bear increased costs from risk management programs of many 
kinds--[including] those to prevent accidents. We have higher legal 
bills as well. But even more of a problem is the need to find pro-bono 
help to quell possible lawsuits. The Scouts must spend scarce time, and 
use up scarce human capital in preventing suits. For example, 5 years 
ago the General Counsel's office, a pro-bono operation, committed less 
than 100 hours per year on issues relating to lawsuits. Last year we 
devoted about 750 hours to that duty.'' The Boy Scouts must do less 
good so that they can defend themselves from lawsuits.
  Frivolous lawsuits also increase costs by discouraging voluntarism. 
Dottie Lewis of the Southwest Officials Association, which provides 
officials for scholastic games, observes, ``Some of our people got to 
the point where they were just afraid to work because of the threat of 
lawsuits.'' What makes this fear worse is the knowledge that one need 
do no harm in order to be liable.
  Take for example Powell versus Boy Scouts of America. While on an 
outing with the Sea Explorers, a scouting unit in the Boy Scouts' 
Cascade Pacific Council, a youth suffered a tragic, paralyzing injury 
in a rough game of touch football. Several adults had volunteered to 
supervise the outing, but none observed the game. The youth filed a 
personal injury lawsuit against two of the adult volunteers. The jury 
found the volunteers liable for some $7 million, which Oregon law 
reduced to about $4 million--far more than the volunteers could 
possibly pay.
  What is more, as Cople points out, ``the jury seemingly held the 
volunteers to a standard of care requiring them constantly to supervise 
the youth entrusted to their charge, even for activities which under 
other circumstances may routinely be permitted without such meticulous 
oversight.''

  One child's tragedy led a jury to impose an unreasonable standard of 
care on individuals who, after all, had volunteered their time and 
effort for an outing, not a football game.
  No one can provide the meticulous oversight demanded by the jury. 
Thus volunteers are left at the mercy of events, and juries, beyond 
their control.
  Such unreasonable standards of care also penalize our nonprofit 
organizations. Len Krugel of the Michigan Salvation Army reports that 
regulations and onerous legal standards often keep his organization 
from giving troubled youths a second chance. Because the organization 
is held responsible for essentially all actions by its employees and 
volunteers, it can take no risks in hiring. Thus the Salvation Army can 
neither hire nor accept voluntary services from any individual with any 
drug conviction, including a 0.3 reading on a breathalyzer test for 
alcohol consumption. As Mr. Krugel observes, ``If we can't give these 
kids a second chance, who can?''
  Then there is the problem of joint and several liability, in which 
one defendant is made to pay for all damages even though responsible 
for only a small portion. Such findings are a severe burden on the 
United Way, a national organization that sponsors numerous local 
nonprofit groups. Although it cannot control local operations, the 
United Way often finds itself a defendant in suits arising from 
injuries caused by the local entity.
  Such holdings result from juries' desire to find someone with the 
funds necessary to pay for an innocent party's injuries. But this 
search for the deep pocket leads to what Ms. Marisi calls a ``chilling 
effect'' on Red Cross relations with other nonprofits. The Red Cross is 
now less willing to cooperate with smaller, more innovative local 
agencies that might make it more effective.
  Thus nonprofits forbear from doing good because they cannot afford 
the insurance, they cannot afford the loss of volunteers, they cannot 
afford the risk of frivolous lawsuits.
  The Volunteer Protection Act will address the danger to our nonprofit 
sector, Mr. President. It will not solve all the problems facing our 
volunteers and nonprofits, but it will provide voluntary organizations 
with critical protection against improper litigation, at the same time 
that it recognizes the ability of the States to take additional or even 
alternative protections in some cases. By setting the standard for the 
protection of volunteers outright, this bill provides much-needed 
lawsuit relief immediately to volunteers and nonprofits wherever they 
may be. Let me briefly describe what this bill does.
  The bill protects volunteers from liability unless they cause harm 
through action that constitutes reckless misconduct, gross negligence, 
willful or criminal misconduct, or is in conscious, flagrant disregard 
for the rights and safety of the individual harmed. This ensures that 
where volunteers truly exceed the bounds of appropriate conduct they 
will be liable. But in the many ridiculous cases I have discussed--
where no real wrongdoing occurred--the volunteer will not be forced to 
face and defend a lawsuit.
  In lawsuits based on the actions of a volunteer, the bill limits the 
punitive damages that can be awarded. It is unfortunate that charities 
and volunteers have punitive damages awarded against them in the first 
place, but they do--Congressman John Porter reports that in August of 
1990 a Chicago jury awarded $12 million to a boy who was injured in a 
car crash. The ``negligent'' party? The estate of the volunteer who 
gave his life attempting to save the boy.
  Under this bill, punitive damages in cases involving the actions of a 
volunteer could be awarded against a volunteer, nonprofit organization, 
or government entity only upon a showing by the claimant that the 
volunteer's action represented willful or criminal misconduct, or 
showed a conscious, flagrant disregard for the rights and safety of the 
individual harmed.

  This should ensure that punitive damages, which are intended only to 
punish a defendant and are not intended to compensate an injured 
person, will only be available in situations where punishment really is 
called for because of the egregious conduct of the defendant.
  The bill also protects volunteers from excessive liability that they 
might face through joint and several liability. Under the doctrine of 
joint and several liability, a plaintiff can obtain full damages from a 
defendant who is only slightly at fault. I have spoken many times 
before about the unfairness that may result from the application of 
this legal doctrine. The injustice that results to volunteers and 
nonprofits is often even more acute, because they lack the resources to 
bear unfair judgments.
  This bill strikes a balance by providing that, in cases based on the 
actions of a volunteer, any defendant that is a volunteer, nonprofit 
organization, or government entity will be jointly and severally 
responsible for the full share of economic damages but will only be 
responsible for noneconomic damages in proportion to the harm that that 
defendant caused. That is a fair approach.
  Finally, I would like to speak for a moment about how this 
legislation preserves important principles of federalism and respects 
the role of the States. First, the bill does not preempt State 
legislation that provides greater protections to volunteers. In this 
way, it sets up outer protections from which all volunteers will 
benefit and permits States to do more. Second, the bill includes an 
opt-out provision that permits States, in cases involving only parties 
from that State, to affirmatively elect to opt out of the protections 
provided in the Volunteer Protection Act. A State can do so by enacting 
a statute specifically providing for that. I suspect that no States 
will elect to do so, but I feel that, as a matter of principle, it is 
important to include that provision.

[[Page S2931]]

  In short, these reforms can help create a system in which plaintiffs 
sue only when they have good reason--and only those who are responsible 
for their damages--and in which only those who are responsible must 
pay. Such reforms will create an atmosphere in which our fear of one 
another will be lessened, and our ability to join associations in which 
we learn to care for one another will be significantly greater.
  And that, Mr. President, will make for a better America.
  I urge my colleagues on both sides of the aisle to support this 
important piece of legislation.

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