HOUSE BILL REPORT

HB 98

BYRepresentatives Niemi, Padden, Crane and Dellwo; by request of Washington State Military Department

Revising state liability for injuries or damages resulting from national guard activities.

House Committe on Judiciary

Majority Report:     The substitute bill be substituted therefor and the substitute bill do pass.  (15)

     Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Hargrove, Heavey, P. King, Lewis, Locke, Moyer, Niemi, Padden, Patrick, Scott, Wang and Wineberry.

House Staff:Paul Browne (786-7122)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 13, 1987

BACKGROUND:

Federal law provides that a member of the armed services of the United States injured or killed while on active duty is limited to statutory compensation provisions.  Feres v. United States, 340 U.S. 135.

Washington has similar provisions for members of the Washington National Guard.  If a guardsman is injured or killed while on active duty his ability to recover is limited to statutory compensation provisions.

Additionally, if a guardsman is injured by a member of the armed services, the exclusive remedy is the statutory compensation.

There is one set of circumstances not covered by current statutes which occurred in Emsley v. Army National Guard.  In that case, the state of Washington was held liable for damages when a guardsman injured members of the armed services.  While a member of the armed services is compensated under federal law, the Washington Supreme Court has held that Washington state is liable for civil damages in the same way a private individual would be held liable.

The federal government treats members of the militia as federal employees when the national guard is engaged in training or on national duty.  Under the federal tort claims act, the federal government accepts liability for the negligent acts of federal employees.

SUMMARY:

SUBSTITUTE BILL:  The Washington National Guard is immune from suit for damages for injuries caused by members of the militia when the members of the guard are considered federal employees under the federal tort claims act.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill provided immunity for the state for specific statutorily prescribed activities of the National Guard.  The substitute bill provides that the state is immune for injuries caused by the National Guard whenever members of the National Guard are operating as federal employees.

Fiscal Note:    Not Requested.

House Committee ‑ Testified For:     General Keith Eggan, Military Department; Kevin Ryan, Military Department.

House Committee - Testified Against: None Presented.

House Committee - Testimony For:     In 1981 Congress amended the Federal Tort Claims Act to allow plaintiffs to sue the federal government for injuries caused by the National Guard.  Even through Washington state will be immune, plaintiffs will be able to sue the federal government.

House Committee - Testimony Against: None Presented.