CIVIL DEFENSE ‑- COMPENSATION AND BENEFITS FOR INJURIES TO AND DEATH OF PERSONNEL ‑- PROVISIONS FOR AN ACT OF 1951 ‑- REIMBURSEMENT BY STATE TO POLITICAL SUBDIVISIONS OF WASHINGTON AND TO OTHER STATES

AGO 1951 No. 125 - Sep 10 1951

Attorney General Smith Troy

CIVIL DEFENSE ‑- COMPENSATION AND BENEFITS FOR INJURIES TO AND DEATH OF PERSONNEL ‑- PROVISIONS FOR AN ACT OF 1951 ‑- REIMBURSEMENT BY STATE TO POLITICAL SUBDIVISIONS OF WASHINGTON AND TO OTHER STATES

1. The provisions of paragraph (4) of section 7 of the Washington Civil Defense Act, chapter 178, Laws of 1951, authorize and empower the Civil Defense Department of the State of Washington to make reimbursement to another state for payments for death, disability or injury to the personnel of a Civil Defense Mobile Support Unit of such other state, whenever such death, disability or injury is incurred while rendering aid in the State of Washington under orders of the governor of such other state and at the request of the Governor of the State of Washington.

2. If a political subdivision of the State of Washington has made lawful provision for payments for death, disability or injury to its employees and such payments are made as the result of service of personnel in connection with the activities of a Mobile Support Unit, the provisions of paragraph (3) of section 7 of the Civil Defense Act require the State Civil Defense Department to reimburse the political subdivision for such payments.

3. The provisions of section 11 of the Civil Defense Act constitute a general exclusion of liability on the part of the state and its political subdivisions and (except in cases of willful misconduct) of their agents for death or injuries resulting to Civil Defense personnel and others unless benefits therefor are otherwise provided, and is not in conflict with the provisions of paragraphs (3) and (4) of section 7 of the act.

4. Article 7 of the proposed Interstate Civil Defense and Disaster Compact presents no legal objection to participation in the compact by the State of Washington.

[[Orig. Op. Page 2]]

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September 10, 1951

Admiral D. E. Barbey
Director of Civil Defense
Legislative Building
Olympia, Washington Cite as: AGO 51-53 No. 125

Dear Sir:

By letter of August 16, 1951, you quote Article 7 of the proposed Interstate Civil Defense and Disaster Compact as follows:

"Article 7. Each party State shall provide for the payment of compensation and death benefits to injured members of the civil defense forces of that State and the representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within such State."

With respect to the provisions of the Washington Civil Defense Act of 1951, chapter 178, Laws of 1951, you make the following inquiries and ask our opinion thereon:

"1. Does Section 7 (4) set up a legal means for reimbursing out-of-state personnel who come into the State of Washington to render aid at time of disaster upon request of the Governor, for death, disability or injury of such employ?

"2. What is the meaning of Section 7 (3) in relation to political subdivisions of the State regarding death, disability or injury?

"3. Section 11 appears to state that the State of Washington has no liability for death or injury. Does the last sentence make it possible for Washington to pay such benefits to another state? Is this Section 11 in conflict with Section 7? If so, which prevails?

[[Orig. Op. Page 3]]

"4. Legally can Washington sign the Mutual Aid Pact between this and other Western States when that Pact includes Article 7 as quoted above?"

Our conclusions are:

2. If a political subdivision of the State of Washington has made lawful provision for payments for death, disability or injury to its employees and such payments are made as the result of service of personnel in connection with the activities of a mobile support unit, the provisions of paragraph (3) of section 7 of the Civil Defense Act require the State Civil Defense Department to reimburse the political subdivision for such payments.

3. The provisions of section 11 of the Civil Defense Act constitute a general exclusion of liability on the part of the state and its political subdivisions and (except in cases of "willful misconduct") of their agents for death or injuries resulting to Civil Defense personnel and others unless benefits therefor are otherwise provided, and is not in conflict with the provisions of paragraphs (3) and (4) of section 7 of the act.

4. Article 7 of the proposed Interstate Civil Defense and Disaster Compact presents no legal objection to participation in the compact by the State of Washington.

ANALYSIS

The pertinent portions of paragraph (4) of section 7 of the act provide that:

"Whenever a mobile support unit of another state shall render aid in this state pursuant to the orders of the governor of its home state and upon the request of the governor of this state * * * this state shall reimburse such other state * * * for all payments [[Orig. Op. Page 4]] for death, disability, or injury of such personnel incurred in the course of rendering such aid, * * *Provided, That the laws of such other state contain provisions substantially similar to this section.

Subject to the proviso attached thereto, the above quoted provisions direct the state to make reimbursement to another state which has, pursuant to its law, made payment on account of the death or injury to its personnel while in the service of a mobile support unit rendering aid to this state under the circumstances as prescribed.

Paragraph (3) of section 7 of the Washington Civil Defense Act provides in part that the state

"shall reimburse a political subdivision * * * for all payments for death, disability, or injury * * *." (Emphasis supplied.)

of or to the employees of such political subdivision incurred in the course of service as members of a mobile support unit. This is a mandatory direction to the state to "reimburse" the political subdivision for such payments. The term "reimburse" assumes that the political subdivision in the first instance shall have made the payments under lawful authority. We do not here give consideration to the question of when a political subdivision would be legally authorized to make such payments in the first instance.

In connection with your third question we quote section 11 of the Civil Defense Act as follows:

"Sec. 11. Neither the state nor any political subdivision thereof, nor other agencies, nor, except in cases of willful misconduct, the agents, employees, or representatives of any of them, engaged in any civil defense activities, while complying with or attempting to comply with this act or any rule or regulation promulgated pursuant to the provisions of this act, shall be liable for the death of or injury to persons, or damage to property, as a result of such activity. The provisions of this section shall not affect the right of any person to receive benefits to which he would otherwise be entitled under this act, or [[Orig. Op. Page 5]] under the workmen's compensation law, or under any pension or retirement law, nor the right of any such person to receive any benefits or compensation under any act of congress."

We interpret the provisions of this section as expressly excluding general liability to third persons and Civil Defense personnel for injuries and death arising out of Civil Defense activities. The exception to this general exclusion is that the agents, employees or representatives of the state or any of its political subdivisions are not absolved of liability to others for injuries, death or damage resulting from their "willful misconduct." Rights which accrue to the injured person or his representatives under the workmen's compensation law, any pension or retirement law or any specific provision of the act itself are expressly preserved.

We find no conflict between the provisions of section 11 of the act and those of paragraphs (3) and (4) of section 7 of the act.

Article 7 of the proposed Interstate Civil Defense and Disaster Compact, above quoted and involved in your fourth question, merely binds each party state to make provision for the compensation and benefits for injuries and death of personnel incurred while rendering aid under the compact on the same basis as such payments would be made for injuries or death occurring within the home state. Since the Washington act makes no provision for payment of such compensation and benefits to personnel in service within the state, personnel engaged in Civil Defense activities within and outside the state would, under our act, be treated on an equal basis in this respect. This would comply with Article 7 of the proposed compact.

We are of the opinion, therefore, that Article 7 presents no legal objection to participation by the State of Washington in the compact.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General