[Congressional Record Volume 143, Number 55 (Thursday, May 1, 1997)]
[Senate]
[Pages S3914-S3915]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMENDMENTS SUBMITTED

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                  THE VOLUNTEER PROTECTION ACT OF 1997

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                COVERDELL (AND OTHERS) AMENDMENT NO. 53

  Mr. COVERDELL (for himself, Mr. Leahy, Mr. Ashcroft, Mr. McConnell, 
Mr. Abraham, and Mr. Santorum) proposed an amendment to the bill (S. 
543) to provide certain protections to volunteers, nonprofit 
organizations, and governmental entities in lawsuits based on the 
activities of volunteers; as follows:

       Strike all after the enacting clause and insert the 
     following:

     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;
       (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 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) clarifying and limiting the liability risk assumed by 
     volunteers is an appropriate subject for Federal legislation 
     because--
       (A) of the national scope of the problems created by the 
     legitimate fears of volunteers about frivolous, arbitrary, or 
     capricious lawsuits;
       (B) the citizens of the United States depend on, and the 
     Federal Government expends funds on, and provides tax 
     exemptions and other consideration to, numerous social 
     programs that depend on the services of volunteers;
       (C) it is in the interest of the Federal Government to 
     encourage the continued operation of volunteer service 
     organizations and contributions of volunteers because the 
     Federal Government lacks the capacity to carry out all of the 
     services provided by such organizations and volunteers; and
       (D)(i) liability reform for volunteers will promote the 
     free flow of goods and services, lessen burdens on interstate 
     commerce and uphold constitutionally protected due process 
     rights; and
       (ii) therefore, liability reform is an appropriate use of 
     the powers contained in article 1, section 8, clause 3 of the 
     United States Constitution, and the fourteenth amendment to 
     the United States Constitution.
       (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

[[Page S3915]]

     laws are inconsistent with this Act, except that this Act 
     shall not preempt any State law that provides additional 
     protection from liability relating to volunteers or to any 
     category of volunteers in the performance of services for a 
     nonprofit organization or governmental entity.
       (b) Election of State Regarding Nonapplicability.--This Act 
     shall not apply to any civil action in a State court against 
     a volunteer in which all parties are citizens of the State if 
     such State enacts a statute in accordance with State 
     requirements for enacting legislation--
       (1) citing the authority of this subsection;
       (2) declaring the election of such State that this Act 
     shall not apply, as of a date certain, 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;
       (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; and
       (4) the harm was not caused by the volunteer operating a 
     motor vehicle, vessel, aircraft, or other vehicle for which 
     the State requires the operator or the owner of the vehicle, 
     craft, or vessel to--
       (A) possess an operator's license; or
       (B) maintain insurance.
       (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.--
     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 civil action was brought by an officer of 
     a State or local government pursuant to State or local law.
       (4) 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 Based on the Actions of 
     Volunteers.--
       (1) General rule.--Punitive damages may not be awarded 
     against a volunteer in an action brought for harm based on 
     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 Federal or State law to the extent that such law would 
     further limit the award of punitive damages.
       (f) Exceptions to Limitations on Liability.--
       (1) In general.--The limitations on the liability of a 
     volunteer under this Act shall not apply to any misconduct 
     that--
       (A) 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;
       (B) constitutes a hate crime (as that term is used in the 
     Hate Crime Statistics Act (28 U.S.C. 534 note));
       (C) involves a sexual offense, as defined by applicable 
     State law, for which the defendant has been convicted in any 
     court;
       (D) involves misconduct for which the defendant has been 
     found to have violated a Federal or State civil rights law; 
     or
       (E) 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.
       (2) Rule of construction.--Nothing in this subsection shall 
     be construed to effect subsection (a)(3) or (e).

     SEC. 5. LIABILITY FOR NONECONOMIC LOSS.

       (a) General Rule.--In any civil action against a volunteer, 
     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 the volunteer for 
     noneconomic loss shall be determined in accordance with 
     subsection (b).
       (b) Amount of Liability.--
       (1) In general.--Each defendant who is a volunteer shall be 
     liable only for the amount of noneconomic loss allocated to 
     that defendant in direct proportion to the percentage of 
     responsibility of that defendant (determined in accordance 
     with paragraph (2)) for the harm to the claimant with respect 
     to which that 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 who is a volunteer under this section, the trier of 
     fact shall determine the percentage of responsibility of that 
     defendant for the claimant's harm.

     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 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 reasonable 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.

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