Introduced Version






SENATE BILL No. 464

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 4-6; IC 10-4-1 ; IC 34-30-2-37.

Synopsis: Construction industry disaster volunteer program. Establishes the construction industry disaster volunteer program. Provides immunity from civil liability to a construction industry professional and the construction industry professional's employer for services provided by the construction industry professional as a participant in the program during a disaster. Authorizes reimbursement for certain expenses incurred by a construction industry professional while participating in the program during an emergency.

Effective: Upon passage.





Merritt




    January 14, 2002, read first time and referred to Committee on Corrections, Criminal and Civil Procedures.







Introduced

Second Regular Session 112th General Assembly (2002)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2001 General Assembly.

SENATE BILL No. 464



    A BILL FOR AN ACT to amend the Indiana Code concerning state police, civil defense, and military affairs.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 4-6-2-1.5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1.5. (a) Whenever any state governmental official, or employee, (whether elected or appointed), or construction industry professional (as defined in IC 10-4-1-3 (6)) participating in the construction industry disaster volunteer program established under IC 10-4-1-30 is made a party to a suit, and the attorney general determines that said suit has arisen out of an act which such official or employee in good faith believed to be within the scope of his duties as prescribed by statute or duly adopted regulation, the attorney general shall defend such person throughout such action.
    (b) Whenever a teacher (as defined in IC 20-6.1-1-8 ) is made a party to a civil suit, and the attorney general determines that the suit has arisen out of an act that the teacher in good faith believed was within the scope of the teacher's duties in enforcing discipline policies developed under IC 20-8.1-5-2 (e), the attorney general shall defend the teacher throughout the action.


    (c) A determination by the attorney general under subsection (a) or (b) shall not be admitted as evidence in the trial of any such civil action for damages.
    (d) Nothing in this chapter shall be construed to deprive any such person of his right to select counsel of his own choice at his own expense.
    SECTION 2. IC 4-6-4-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 1. Whenever any such action, counter-claim, petition, or cross-complaint is filed in any court in this state in which the state of Indiana or any board, bureau, commission, department, division, agency, or officer or employee in his capacity as an employee of the state of Indiana, or any construction industry professional (as defined in IC 10-4-1-3 (6)) participating in the construction industry disaster volunteer program established by IC 10-4-1-30, is a party and the attorney general is required or authorized to appear or defend, or when the attorney general is entitled to be heard, a copy of the complaint, cross-complaint, petition, bill, or pleading shall be served on the attorney general and such action, cross-action, or proceeding shall not be deemed to be commenced as to the state or any such the board, bureau, commission, department, division, agency, or officer or employee in his capacity as an employee of the state of Indiana, or as to the construction industry professional, until such service. Whenever the attorney general has appeared in any suit, action, or proceeding, copies of all motions, demurrers, petitions, and pleadings filed therein shall be served upon the attorney general by the party filing the same; provided, further, that the clerk of the court shall cause to be served upon the attorney general a copy of the ruling made by the court upon such motions, demurrers, petitions, and pleadings, and such ruling shall not be deemed effective in any manner as against the attorney general, or as against the state of Indiana or any the board, bureau, commission, department, division, agency, or officer or employee in his capacity as an employee of the state of Indiana, or as against the construction industry professional unless and until such copy shall be served upon the attorney general or any deputy attorney general as provided in section 2 of this chapter; provided, further, that in any action in which the attorney general is required or authorized to appear or defend or entitled to be heard, in which action some matter or thing occurs upon which occurrence time begins to run, the running of such time shall be suspended as to the attorney general until such service is had upon the attorney general or any deputy attorney general as provided in section 2 of this chapter; provided, further, that whenever any claim filed for and on behalf of

the state of Indiana or any board, bureau, commission, department, division, agency, officer, or institution of the state of Indiana in any estate or guardianship pending in any court having probate jurisdiction in the state of Indiana is not allowed and the clerk of the court, administrator, administratrix, executor, executrix, or guardian transfers such claim to the trial docket, said claim shall not be disposed of nor shall any disposition made of such claim be deemed to be a final adjudication unless and until due notice of the trial date of such claim shall be served on the attorney general or any deputy attorney general as provided in section 2 of this chapter at least ten (10) days prior to the date set for trial of said claim.
    SECTION 3. IC 10-4-1-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 3. As used in this chapter:
        (1) "Emergency management" means the preparation for and the coordination of all emergency functions, other than functions for which military forces or other federal agencies are primarily responsible, to prevent, minimize, and repair injury and damage resulting from disasters. These functions include, without limitation, firefighting services, police services, medical and health services, rescue, engineering, warning services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, plant protection, temporary restoration of public utility services, and other functions related to civilian protection, together with all other activities necessary or incidental to the preparation for and coordination of the foregoing functions.
        (2) "Political subdivision" has the meaning set forth in IC 36-1-2-13.
        (3) "Disaster" means occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade cause, including but not limited to fire, flood, earthquake, wind, storm, wave action, oil spill, other water contamination requiring emergency action to avert danger or damage, air contamination, drought, explosion, riot, or hostile military or paramilitary action.
        (4) "Energy" means coal, petroleum or other liquid fuels, natural or synfuel gas, or electricity.
        (5) "Energy emergency" means an existing or projected shortfall of at least eight percent (8%) of motor fuel or of other energy sources which threatens to seriously disrupt or diminish energy supplies to the extent that life, health, or property may be

jeopardized.
         (6) "Construction industry professional" means:
            (A) an architect;
            (B) a professional engineer;
            (C) a construction industry contractor;
            (D) a construction industry equipment dealer; or
            (E) any other person engaged in the construction industry.
         (7) "Program" refers to the construction industry disaster volunteer program established by section 30 of this chapter.
         (8) "Emergency management worker" includes any:
            (A) volunteer other than a person participating in the program; or
            (B) full-time or part-time paid or auxiliary employee of:
                    (i) the state;
                    (ii) another state, territory, possession, or the District of Columbia;
                    (iii) the federal government;
                    (iv) any political subdivision of an entity referred to in items (i) through (iii); or
                    (v) any agency or organization;
        who performs emergency management services at any place in Indiana subject to the order or control of, or pursuant to a request of, the state or any political subdivision of the state.

    SECTION 4. IC 10-4-1-8 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 8. (a) All functions under this chapter and all other activities relating to emergency management are governmental functions.
     (b) Neither:
         (1) the state; nor
         (2) any political subdivision of the state; nor
         (3) any other agencies of the state or political subdivision of the state; nor
         (4) except in cases of willful misconduct, gross negligence, or bad faith, any:
             (A) construction industry professional who is participating in the program;
            (B) person employing a construction industry professional who is participating in the program; or
            (C)
emergency management worker;
        complying with or reasonably attempting to comply with this chapter or any order or rule adopted under this chapter or under any ordinance relating to blackout or other precautionary

measures enacted by any political subdivision of the state;
shall be liable for the death of or injury to persons or for damage to property as a result of any such activity referred to in subdivision (4).
     (c)This section shall not affect the right of any person to receive:
        (1) benefits to which the person would otherwise be entitled under:
            (A) this chapter;
            (B) the worker's compensation law (IC 22-3-2 through IC 22-3-6 ); or
            (C) any pension law; or
        (2) any benefits or compensation under any federal law.
    (b) (d) Any requirement for a license to practice any professional, mechanical, or other skill shall not apply to any authorized emergency management worker who shall, in the course of performing duties as such, practice such professional, mechanical, or other skill during a disaster emergency.
    (c) As used in this section, "emergency management worker" shall include any full or part-time paid, volunteer, or auxiliary employee of this state, or other states, territories, possessions, or the District of Columbia, or the federal government, or any neighboring country, or of any political subdivision of those entities, or of any agency or organization performing emergency management services at any place in this state subject to the order or control of, or pursuant to a request of, the state government or any political subdivision of the state.
    (d) (e) A volunteer working as an authorized emergency management worker may be covered by the medical treatment and burial expense provisions of the worker's compensation law (IC 22-3-2 through IC 22-3-6 ) and the worker's occupational diseases law (IC 22-3-7). If compensability of the injury is an issue, the administrative procedures of IC 22-3-2 through IC 22-3-6 and IC 22-3-7 shall be used to determine the issue.
    SECTION 5. IC 10-4-1-20 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 20. (a) Subsection (c) does not apply to a construction industry professional who is participating in the program.
     (b) No person shall be employed or associated in any capacity in any emergency management organization established under this chapter who:
        (1) advocates a change by force or violence in the constitutional form of the government of the United States or the overthrow of any government in the United States by force or violence; or
        (2) has been convicted of or is under indictment or information

charging any subversive act against the United States.
    (b) (c) Each individual who is appointed to serve in an organization for emergency management shall, before entering upon the individual's duties, take an oath, in writing, before a person authorized to administer oaths in this state, which oath shall be substantially as follows:
        "I, __________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Indiana against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter. And I do further swear (or affirm) that I do not advocate, nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or of this state by force or violence; and that during such time as I am a member of the (name of emergency management organization) I will not advocate nor become a member of any political party or organization that advocates the overthrow of the government of the United States or of this state by force or violence.".
    (c) (d) For the purposes of this section, the director and the county emergency management directors:
        (1) shall be authorized to administer the oath provided in subsection (b) (c) to emergency management and disaster personnel; and
        (2) may delegate that authority to designated deputies and assistants as may be approved by the director.
    SECTION 6. IC 10-4-1-25 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 25. (a) Each person within this state shall conduct himself, keep and manage his affairs and property in ways that will reasonably assist and will not unreasonably detract from the ability of the state and the public successfully to meet disaster emergencies. This obligation includes appropriate personal service and use or restriction on the use of property in time of disaster emergency. Compensation for services or for the taking or use of property shall be only to the extent that obligations recognized in this chapter are exceeded in a particular case and then only to the extent that the claimant may not have volunteered his services or property without compensation.
    (b) No personal services may be compensated by the state or any subdivision or agency of it, except under statute, local law or

ordinance.
    (c) Compensation for property shall be paid only if the property was commandeered or otherwise used in coping with a disaster emergency and:
        (1)
its use or destruction was ordered by the governor or a member of the disaster emergency forces of this state; or
         (2) the property was volunteered as a part of the construction industry disaster volunteer program.
    (d) Any person claiming compensation for the use, damage, loss, or destruction of property under this chapter shall make a claim for it, which claim shall be filed and adjudicated as provided in IC 1971, 32-11.
    (e) Nothing in this section applies to or authorizes compensation for the destruction or damaging of standing timber or other property in order to provide a fire break or to the release of waters or the breach of impoundments in order to reduce pressure or other danger from actual or threatened flood.
    SECTION 7. IC 10-4-1-30 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 30. (a) The construction industry disaster volunteer program is established.
    (b) The department shall establish and administer the program.

     (c) The program consists of construction industry professionals who have volunteered their:
        (1) personal services; or
        (2) equipment, manned and unmanned;
or both, to assist the department at the time of a disaster.

     (d) A construction industry professional who has volunteered for the program shall provide personal services or equipment, or both, upon terms and conditions specified by the director and agreed to by the construction industry professional.
    (e) A construction industry professional participating in the program is entitled to receive reimbursement of expenses actually incurred for:
        (1) actual and necessary travel;
        (2) subsistence;
        (3) maintenance expenses; and
        (4) other expenses as approved by the director;
while engaged in duties
during a disaster.
    (f) Section 8(a) of this chapter applies to a construction industry professional who is participating in the program.
    (g) The department shall adopt rules under IC 4-22-2 to

implement this section.
    SECTION 8. IC 34-30-2-37 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 37. IC 10-4-1-8 (Concerning the state, political subdivisions, and emergency management workers , and construction industry professionals for injury, death, or property damage).
    SECTION 9. [EFFECTIVE UPON PASSAGE] (a) Notwithstanding IC 10-4-1-30 (g), as added by this act, the state police department shall carry out the duties imposed upon it by IC 10-4-1-30, as added by this act, under interim written guidelines approved by the director.
    (b) This SECTION expires on the earlier of the following:
        (1) The date rules are adopted under IC 10-4-1-30(g).
        (2) June 30, 2003.

    SECTION 10. An emergency is declared for this act.