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AB 1749 Brainstorming: The Results!

AB 1749 Brainstorming: The Results!

  • May 15th, 2019
  • Tom Richard
  • Comments Off on AB 1749 Brainstorming: The Results!

We had an excellent, collaborative brainstorming session at RTGR’s Oakland office on May, 15, 2019 with several representatives from Cities,  Counties and others regarding the implementation of AB 1749. The results of our discussion is outlined below, and the companion PowerPoint presentation is linked here: AB 1749 Presentation

AB 1749, enacted in 2018, allows, but does not require, local agencies to extend WC coverage for safety officers killed or injured while (allegedly) rendering aid out of state, while not under the direction or control of their employer (e.g., acting on their own).

LC sec. 3600.2 already covers such injuries anywhere inside the state.  Also, existing case law already covers any injuries anywhere in the world when an employee is at that foreign location at the direction of or performing services for his or her employer. For example, a firefighter injured in Nevada as part of a strike team dispatched by her employer is already covered by California WC.

AB 932, currently pending in the legislature, if signed into law, would make the out-of-state coverage mandatory for firefighters.

Several Agencies have expressed concerned and are being pressured by their safety unions for action and answers.

Does there need to be a written policy?  For example, is coverage limited to inside the US, or world-wide? Should the coverage be limited to in state?  Yes.  Concerns with cultural differences outside of US.  Ability to investigate is easier if you limit it to US.  Concern about violating local laws overseas due to unfamiliarity with local customs and laws. Can we still raise affirmative defenses ?  Yes.  If keeping within US, uniformity of laws.

Will all risk pool and excess insurance cover out-of-state injuries? 

Will off-duty, out-of-state police officers and firefighters on vacation be required or expected to act to act with police powers or safety training in every situation? Needs to be official board resolution for excess coverage for some employers.  Endorsement can cost the agency extra.  Can you tailor your 1749 coverage?  1749 gives agency discretion to provide coverage.  Good standing for members, limit the types of claims to be covered (ex.  Exclude psyche coverage because it is the agency’s discretion or member out on admin leave) If you limit the scope of your agency policy are you exposing your agency to work comp claims that are not covered?  WCAB decides AOE/COE.  If there is a conflict in statute, WCAB will apply liberal construction.  Can you limit the events to covered specific events such as domestic terrorism, Las Vegas shooting, San Bernardino Christmas party)  If you are covering someone voluntarily, does that exclude excess coverage because it is a voluntary provision of benefits.  Is this a gift of public funds if the agency is providing these benefits? Can you limit it to preservation of life?  Might not matter how much you limit it if there is no discretion when we get to WCAB. What about coverage for assistance in a natural disaster where everyone is helping out?  Especially out of country.  Payment of benefits is never an admission of liability. What of instead of adopting 1749 but rather than to make a policy to look at claims on a case by case basis and depending on (XYZ) we may choose to pick up benefits.  Can deny claim because out of state, off duty, can pay 4850 , medical , etc on a voluntary basis. 

What if its hazardous to do so? Is it covered when you knowingly enter into a risky situation where you would normally have safety equipment.

What if they have their small children or elderly parents with them?  How do you control for family members?  What if kids or other family members get hurt while safety member is rendering aid.  Cities may have policies for disaster workers to make sure own family/household is safe before you render aid.   Disaster worker policy. 

Make clear in the policies adopted that the Agency does not cover the member for personal liability, that they act at their own risk.  Acting without police power to break up bar fight for example causing injury to someone else.  Can agency be sued?  Does this give rise to wage and hour claims or good Samaritan laws? Some employees may already be covered for wages.  Are safety members compelled to act?  What if they do not feel safe to act?  Are they liable if they do not act? Is there a duty of care?

Can we ask/insist that the FF or PO unions buy personal liability coverage for their members? Will they be covered by their homeowners insurance? In the event they are sued, can we insist they have personal liability insurance? Potential liability to employing agency if employee is working within scope of employment.

What if the foreign jurisdictions don’t recognize the police powers of a “foreign “ sworn officers powers or immunity to act? Does this make it worse for agency or does it provide protection? 

The statute says that the decision to provide such benefits does not  affect the determination of whether or not the peace officer acted within the scope of their employment for any other purpose.

LC 3600.2(b)(4) “Acceptance of liability under this subdivision shall not affect the determination of whether or not the peace officer acted within the scope of his or her employment for any other purpose.”

Also, California law is not binding on other states.

  • Does this mean they act without “police powers” and without limitation of the “Firefighter Rule”? intent to protect the agency,  But result could be that it is easier for the safety member to be sued personally.  Could create liability to agency.

Does that mean the safety officer is personally exposed to liability because they lack local “police powers” ?  What if they hurt the (alleged) bad guy?  Are local cities liable, or the local authorities?

And if they choose not to intervene for one of the above reasons, are they liable personally to the victim, when this WC coverage implies a duty to do so?

Ideas:

Place Limit on duty to act to calling 911?  Helpful to limit what the scope of duty is for safety officer.  Limit to getting local authorities involved.  Maybe need to get a police report when the safety member intervenes, must also contact local authorities.  Can you still raise AOE.COE if they go beyond the scope of your stated policy?  Does a limited policy /scope expose the agency to liability for injury/death to family members? Possibly can expose to liability for the non action of the safety member. 

Limit to providing CPR and/or calling 911?

Prohibit action where it is unsafe to do so?

When safety equipment or duty belt, bullet-proof vest would be needed?

If there are limits, but the WC coverage is broader, is the agency liable to the out-of-state victim for limited the officer’s aid?  Issues with excess insurance and coverage.  What will they cover, how much can the employer limit acts that may be covered, what effects will that have on comp coverage, both regular and excess coverage.?  Covered claim for excess purposes if state law.

Two aspects of PTSD presumption.  No apportionment to pre-existing issues.  Second is that there is retirement coverage up to 5 years post retirement under the presumption statute. How do personnel actions interact with psychiatric claims and the presumption?  Can you still raise a good faith personnel defense when you have a presumption statute? What about diagnosis of alcoholism or other DSM diagnosis that is not traditionally considered work related? Are Statute of limitations defenses still viable?

 

 

 

 

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