The Legal Officer serves the command by advising on legal matters pertaining to operations, events, and overall management. Such matters include real estate, investigations, insurance, taxation, legal structure, contract review, and interpretation of the law.
Functional Address: CAP FLWG/GC
Everyone Needs Some Protection Once in Awhile
By Col. Stan Leibowitz, Group VI Legal Officer
At the Town Hall meeting following the recent Wing Conference, I was asked about liability protection for our pilots and others performing Civil Air Patrol missions. Judging from the number of follow-up questions, this is an area of great concern to members, and rightly so.
In the past few years we have had a King Air aircraft damaged on landing when one of its propellers hit a CAP glider tow rope that had been left on the runway, a 4 year old child injured at an impromptu football game at a squadron building, the mother of a prospective cadet break her leg when she stepped into a depressed floor drain in a CAP hangar, a CAP member break his back while climbing on leadership development course apparatus on an Army post, a member killed when he was hit by a freight train at an unmarked crossing while retrieving a target for a SAREX, and many more incidents. In each case there was the question of who pays, how much, for what.
To comprehend the complex issues of liability and benefits it is first necessary to understand how our missions are classified. From a legal perspective, there are two types of missions: Air Force assigned missions (AFAMs) and corporate missions. As the name implies, AFAMs are assigned to CAP by the Secretary of the Air Force under his statutory authority granted in Title 10 of the U. S. Code. Much of the Secretary’s authority has been delegated to other Air Force agencies, such as 1st Air Force, the Air Force Rescue Coodination Center, or CAP-USAF. The important thing to remember is that every AFAM has been specifically authorized by an Air Force officer, or employee.
Some AFAMs are paid for by National Headquarters, Civil Air Patrol (NHQ) with funds provided by the Air Force, either directly through the Cooperative Agreement, or indirectly by a third-party such as AFROTC or FEMA. Some AFAMs are authorized by the Secretary of the Air Force or his designee but not funded by NHQ. These are usually paid for by the member, but in some states may be funded by sources such as state grants. These unfunded missions include proficiency flights and certain cadet orientation flights. Missions that are not AFAMs are known as "corporate missions”.
As a shortcut, and to distinguish among the three mission classifications, we have cleverly named the three types of missions "A”, "B”, and "C”. "A” missions are AFAMs that have been funded by NHQ; "B” missions are AFAMs that have not been funded by NHQ; and "C” missions are all corporate missions, regardless of the funding source.
For the purposes of liability and benefits, the distinction between an "A” mission and a "B” mission is not important, but the distinction between an AFAM and a corporate mission is paramount.
Liability deals with the issue of "who pays” or "who is responsible” in the event that you damage or destroy someone else’s property or cause injury or death to another. A frequent question in this area is what is my responsibility as pilot in command of an aircraft if I have an accident or incident? Another frequent concern is what is my responsibility if I am driving a CAP vehicle and have a fender bender? Perhaps someone was injured during your squadron activity and you are sued for alleged negligence in conducting the activity. Is it your problem? Should you be concerned? As you might expect, the answer is that it depends.
The general rule is that if you are doing what you are supposed to be doing, you don’t have much to worry about. But if you are acting outside your authority or acting with willfully bad intent you could find yourself on the expensive side of a claim or lawsuit.
Let’s look first at what can get you in trouble. First, a quick cautionary note: every case is very dependent on the facts of that specific case. Generalities are just that. A change of one fact can change the entire outcome.
Having said that, suppose a squadron commander gets a great offer to lease a hangar for the CAP aircraft that is under the squadron’s care. The squadron commander, recognizing that $25 a month rent is a great deal, quickly signs the lease. Three months later there is a fire in the hangar that destroys the CAP aircraft and the building. Who pays? For what?
First, the airplane. It is owned by CAP and CAP self-insures the aircraft for damage or destruction. But what caused the fire? Was it faulty wiring? If so, was the wiring done by the owner or by the tenant? Was it caused by a short in the aircraft’s wiring? By lightning? Under the lease, could CAP have recourse against the hangar owner? In most cases, unless the aircraft operator was grossly negligent or someone deliberately set the fire, the loss of the aircraft will be borne by Civil Air Patrol.
What about the hangar itself? The first issue is always: What does the lease say? If the unusual event that the building owner is responsible, there is no liability on the part of the squadron commander or CAP. But suppose the lease and the facts indicate that CAP is responsible for repairing or replacing the building? The owner has a signed lease with either CAP or the squadron commander. If the squadron commander was foolish enough to sign the lease in his/her own name, he/she has a real problem, because CAP and its insurer would probably view it as a lease to the squadron commander and a donation of the space to CAP. In all likelihood, CAP would deny any liability in this case.
Suppose, however, the squadron commander signed as:
XYZ Squadron, Civil Air Patrol, by
John Smith, Commander
Again, the answer becomes very fact-dependent, primarily because, under the CAP Constitution and regulations, a squadron commander does not have the authority to enter into agreements on behalf of Civil Air Patrol. (Only the wing commander has authority to bind the corporation.) So, if the owner had actual knowledge that the squadron commander lacked authority to bind CAP, a court might determine that the lease was void from the start, or it might rule that the squadron commander, and not CAP, is liable under the lease. On the other hand, if the owner did not have actual knowledge of the CAP Constitution and regulations and assumed that he/she was dealing with an authorized agent of CAP, Civil Air Patrol and its insurer may be held liable for the damages under the lease.
But that is not the end of the story. Rather, because the squadron commander lacked corporate authority to enter into a lease on behalf of Civil Air Patrol, CAP has a right to seek recovery from the squadron commander.
While it is interesting to look at things that "just happen”, like property damage which occurs when no activity is involved, the far more likely scenario is for property to be damaged or destroyed, or someone to be injured or killed during the course of some activity. When this happens, the first question is always whether or not it was a CAP activity. Take, for example, the situation where a group of CAP cadets go to the squadron building on a Saturday afternoon to play some touch football. During the course of the game someone gets hurt. Just because it is CAP members and CAP property does not make it a CAP activity and does not automatically subject CAP to liability for the injury. A jury would be asked to examine the circumstances and great attention would be given to whether someone in "management" (command) somehow authorized or exercised authority over the activity. Had a commander certified the game as a CAP activity before hand, that question would have a clearer answer, just as it would had the commander prohibited it.
If damage occurs during a CAP activity, the next question is who is responsible, or who is going to pay. In most cases, it will not be the CAP member, but remember that the answer is always a function of the specific facts of the case. If the activity is an AFAM, under special federal legislation found in Title 10 of the U.S. Code, CAP and its members are treated as if we were government employees for liability purposes. We are covered by the Federal Tort Claims Act and the federal government will provide legal counsel and handle the case through the Air Force and the Department of Justice. Claims by third parties are made to the Air Force, not to CAP. If there is a settlement or judgment, it will be against the U.S. government. Your role as a CAP member will be to report the accident or incident, to cooperate with the government investigators and attorneys, and to refrain from talking about the accident or incident with anyone except as instructed by the government lawyers.
If the activity is a CAP corporate activity, such as a CAP meeting or participation in a "C” mission, in most cases, the member will be acting on behalf of Civil Air Patrol, thereby obligating CAP to defend the member in any lawsuit resulting from the activity and to pay for any damages. Of course, CAP carries commercial liability insurance to protect itself from the expenses that might be incurred in defending the member and paying any damages. Your role as a CAP member will again to be report the accident or incident, to cooperate with the CAP and its insurer’s investigators and attorneys, and to refrain from talking about the accident or incident with anyone except as instructed by the CAP General Counsel.
A special kind of corporate activity involves performing investigations and inquiries. Under our regulations, only wing commanders and certain investigating officers are authorized to perform investigations and inquiries. These personnel may be granted indemnification for legal fees and damages against them stemming from allegations of wrongful conduct or negligence during the course of their investigations or inquiries.
CAP members who perform unauthorized or improperly authorized investigations may be personally responsible for their legal expenses and judgments against them if a court upholds a claim of negligence, or slander or libel against a member. Similarly, a member who is sued individually under a claim of unlawful discrimination or violation of other laws may find that he/she is individually responsible for his/her legal fees and any judgment against him/her by a competent court of law.
The last section of this article discussed liability issues…situations where others are making claims against you or against CAP for damage to their property or injury to them. In this section we will examine what happens when your property is damaged or when you are injured or killed during the course of a CAP activity.
We saw above that in a liability case it really doesn’t matter to you, the member, whether it was an AFAM or a corporate mission during which the damage occurred. In either case someone else will bear the costs and the bottom line to you will be zero. That is not the case if you are injured or your personal property is damaged.
The Air Force, through public regulations and by policy, has established that it will not pay for a member’s personal property damaged or destroyed during the course of an AFAM. It is incumbent on a member to carry his/her own property damage insurance on his/her motor vehicle, aircraft, and any other property that the member may chose to use during an AFAM. Neither the government, nor CAP will pay you or reimburse you for damage to your own property.
Congress, by a special law found in Title 5 of the U.S. Code, has authorized the federal government to treat you as if you were a government employee at the time of your injury or death. You will become eligible for certain benefits under the Federal Employment Compensation Act, based, in part, on what a government employee with a grade level of GS-9 (step 1) would receive if he/she were injured or killed on the job. To come under this special law, your injury or death must have occurred while performing an AFAM, These benefits include medical and hospitalization costs to treat your injuries, rehabilitation costs and, in some cases, the cost of retraining for another career. If you are killed or totally and permanently disabled, you or your surviving dependents may be eligible for pension benefits. There is also a small burial benefit. Benefits also depend on whether or not you or your survivors are collecting or eligible for social security benefits and the burial benefit cannot be claimed if you are also eligible for VA burial benefits. Claims are made through the Air Force and are administered by the Department of Labor. If you are injured during an AFAM, you are responsible to report the claim through CAP channels and for cooperating with the Air Force and Department of Labor investigators and attorneys.
Civil Air Patrol carries general commercial liability insurance, part of which covers injuries to members sustained during corporate activities. If you are injured or killed during the course of a corporate activity, the benefits are not as generous as the government benefits but are still very significant. If you are killed, CAP pays a one-time benefit of $10,000 to your next of kin. There is no pension and you are not deemed to be a government employee or a CAP employee. If you are injured, you can make a claim against CAP through the office of the General Counsel at National Headquarters. Generally, CAP will pay medical, hospital and rehabilitation expenses up to its insurance policy’s limits.
* * *
This has been a discussion of the general legal principles, laws, and factors used in determining liability issues and benefits coverage for members of Civil Air Patrol. It is intended to provide a broad understanding of the way the federal government and CAP provide protection for members. Each case is unique and turns on the specific facts of the case.
For additional information, please refer to CAPR 900-5 and the following links for Federal Tort Claims Act and the Federal Employer Compensation Act as they apply to Civil Air Patrol. And of course, don’t forget your local CAP Legal Officer.