Immunity From Liability For Acts Of Covered Volunteer Emergency Workers

TORT LIABILITY—EMERGENCIES—VOLUNTEERS—EMPLOYERS AND EMPLOYEES—Immunity From Liability For Acts Of Covered Volunteer Emergency Workers

An organization that sponsors a team of its members to act as covered volunteer emergency workers is immune from liability under RCW 38.52.180(3)(d) or (f) only if the organization is the employer of the covered volunteer emergency workers or is a local organization (created by a county, city, or town) that registered the covered volunteer emergency workers. 

February 5, 2014

Dear Representative Shea:

By letter previously acknowledged, you have requested our opinion on a question we have paraphrased as follows:

Does RCW 38.52.180(3)(d) or (f) provide immunity from civil liability to a nonprofit corporation or parent organization that sponsors a team of its members who are covered volunteer emergency workers? 

BRIEF ANSWER

BACKGROUND  

    The Washington State Military Department administers Washington State’s comprehensive emergency management program.  RCW 38.52.005.  This program includes “the preparation for and the carrying out of all emergency functions . . . to mitigate, prepare for, respond to, and recover from emergencies and disasters, and to aid victims suffering from injury

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or damage, resulting from disasters caused by all hazards, whether natural, technological, or human caused, and to provide support for search and all rescue operations for persons and property in distress.”  RCW 38.52.010(1).

    As part of this emergency management program, the legislature has “authorized and directed” “[e]ach political subdivision of this state” “to establish a local organization or to be a member of a joint local organization for emergency management in accordance with the state comprehensive emergency management plan and program[.]”  RCW 38.52.070(1).  Political subdivisions are counties, cities, and towns.  RCW 38.52.010(3).  One of the roles served by such local organizations is registering emergency workers “for the purpose of engaging in authorized emergency management activities[.]”  RCW 38.52.010(4).

    Under RCW 38.52.180(3), the following individuals and entities are immune from liability for civil damages resulting from the acts or omissions of a “covered volunteer emergency worker” if certain conditions, not relevant to the resolution of your question, are met:

(a) The covered volunteer emergency worker;

(b) The supervisor or supervisors of the covered volunteer emergency worker;

(c) Any facility or their officers or employees;

(d) The employer of the covered volunteer emergency worker;

(e) The owner of the property or vehicle where the act or omission may have occurred during the covered activity;

(f) Any local organization that registered the covered volunteer emergency worker; and

(g) The state or any state or local governmental entity.

RCW 38.52.180(3); see also RCW 38.52.180(4)-(5).  Your question concerns the applicability of subsections (3)(d) and (3)(f).

ANALYSIS

    You ask first whether “a nonprofit corporation or parent organization” that sponsors a team of covered volunteer emergency workers consisting of its members qualifies for immunity under RCW 38.52.180(3)(d) as an “employer of the covered volunteer emergency worker.”  The answer to this question would be fact-specific.

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    Neither RCW 38.52.180 nor related statutes define “employer” or “employer of the covered volunteer emergency worker.”[1]  The Washington Supreme Court has held that “[w]here a term is not defined in a statute, it is presumed that the Legislature intended it to mean what it did at common law.”  In re Brazier Forest Prods., Inc., 106 Wn.2d 588, 595, 724 P.2d 970 (1986).  Washington looks to the Restatement (Second) of Agency for the definition of “employer” and “employee” at common law.  See Kamla v. Space Needle Corp., 147 Wn.2d 114, 119, 52 P.3d 472 (2002) (quoting Restatement (Second) of Agency § 2(2) to define “employee”).

    The Restatement defines “employer” as “a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.”  Restatement (Second) of Agency § 2(1).[2]  This is to be distinguished from a person who hires an “independent contractor” over whom there is no such control or right to control.  Id. at § 2(3).  Courts consider many factors in deciding whether a person is an employee or an independent contractor, with no single factor being dispositive.  Hollingbery v. Dunn, 68 Wn.2d 75, 80-81, 411 P.2d 431 (1966) (quoting Restatement (Second) of Agency § 220(2) (1958)).  But a person can only be an employee or an independent contractor if the employer is paying for his or her work.  O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997) (A “prerequisite to considering [these factors] under common-law agency principles is that the individual have been hired in the first instance. . . . Where no financial benefit is obtained by the purported employee from the employer, no plausible employment relationship of any sort can be said to exist because . . . compensation by the putative employer to the putative employee in exchange for his services . . . is an essential condition to the existence of an employer-employee relationship.”  (Quotation marks and citations omitted.)); cf. Doty v. Town of South Prairie, 155 Wn.2d 527, 537, 120 P.3d 941 (2005) (approving of position that “volunteers are not employees inasmuch as the very basis of the employee-employer relationship is the performance of service in return for some kind of remuneration therefor”).

    As a result, whether the type of organization referenced in your question is entitled to immunity as an “employer” under RCW 38.52.180(3)(d) will turn first on whether the organization pays the covered volunteer emergency worker for services provided and, second, on a fact-based consideration of the factors quoted in Hollingbery.

    You also ask whether a nonprofit corporation or parent organization that sponsors a team of its members who are covered volunteer emergency workers qualifies for immunity under RCW 38.52.180(3)(f) as a “local organization that registered the covered volunteer emergency worker.”  Here, the statutory scheme defines which organizations are entitled to such immunity.[3]

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    While RCW 38.52 does not define “local organization that registered the covered volunteer emergency worker,” it defines “local organization for emergency services or management” as “an organization created in accordance with the provisions of this chapter by state or local authority to perform local emergency management functions.”  RCW 38.52.010(2).  RCW 38.52.070(1) authorizes and directs “[e]ach political subdivision of this state . . . to establish a local organization or to be a member of a joint local organization for emergency management[.]”  For purposes of this statute, only counties, cities, and towns are “political subdivisions” of the state.  RCW 38.52.010(3).  Related statutory and regulatory provisions make clear that these organizations created by local governments are the “local organizations” that register emergency workers.  See RCW 38.52.010(4) (“‘Emergency worker’ means any person who is registered with a local emergency management organization[.]”); RCW 38.52.310 (“The department shall also adopt rules and regulations prescribing the manner in which emergency workers of each class are to be registered.”); WAC 118-04-080(1) (“Emergency workers shall register in their jurisdiction of residence or in the jurisdiction where their volunteer organization is headquartered by completing and filing an emergency worker registration card, Form EMD‑024 or equivalent, with the local emergency management agency.”).

    Thus, a nonprofit corporation or parent organization that sponsors a team of its members would be entitled to immunity as a “local organization that registered the covered volunteer emergency worker” under RCW 38.52.180(3)(f) only if it is the “local organization for emergency services or management” created by one or more counties, cities, or towns under RCW 38.52.070(1), that registered the emergency worker at issue.  Other independent nonprofit corporations or organizations that sponsor covered volunteer emergency workers could not claim that immunity.

    You have asked about two possible sources of immunity provided in RCW 38.52.180(3).  There may be situations in which other sources of immunity in RCW 38.52.180(3) might apply to a particular organization (e.g., subsection (c) provides immunity to “[a]ny facility or their officers or employees”), but such hypothetical scenarios are beyond the scope of this opinion.  If the legislature wishes to provide broader immunity to nonprofit organizations like those you describe, it could of course amend this statute.  We offer no opinion as to whether there may be other possible sources of immunity already available in other statutes or the common law.

    We trust the foregoing will be useful to you.

ROBERT W. FERGUSON
    Attorney General     

CHRISTOPHER B. LANESE
    Assistant Attorney General 

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[1] In construing a statute, the primary objective is to ascertain and carry out the intent of the legislature.  Bowie v. Dep’t of Revenue, 171 Wn.2d 1, 10-11, 248 P.3d 504 (2011).  The first source for determining legislative intent is the statutory text.  Id.

[2] Washington courts substitute “employer” for “master” when citing Restatement (Second) of Agency § 2.  See, e.g., Kamla, 147 Wn.2d at 119.

[3] In construing a statute, courts look to “the context of the statute in which th[e] provision is found, related provisions, and the statutory scheme as a whole.”  State v. Hurst, 173 Wn.2d 597, 604, 269 P.3d 1023 (2012) (quotation marks omitted).