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Although there exists a Model State Volunteer Service Act, discussed in Chapter 2, no state has enacted it in its entirety. Indeed, as seen in Chapter 3, there is extensive diversity among state volunteer protection laws. No one state has exactly the same protection and coverage as another. The exact scope of protection under a particular statute depends, in part, on the definitions used, especially for terms such as volunteer, nonprofit organization and compensation. Some states have a number of protection laws each of which focus on a different type of volunteer. The provisions of such laws are rarely uniform even within a state. For example, the definition of the same term may differ between statutes or excluded conduct may be different under different statutes. Some states grant protection only to specific types of volunteers, such as uncompensated officers and directors; other states protect a broader range of volunteers.
As noted in Chapter 3, protected volunteers are often defined according to the entity for whom they provide services. States that attempt to protect a broader range of volunteers usually focus on volunteers of nonprofit entities. Some state statutes limit protection to volunteers of nonprofit organizations that are exempt from federal or state taxation; other states employ a more traditional meaning of nonprofit in the sense of charitable; and still others take a broader, and in some cases unusual, view of what constitutes nonprofit organizations. This latter approach may be taken to ensure inclusion of volunteers of a particular entity that would not otherwise be considered nonprofit. In addition to covering volunteers of nonprofits, some states include volunteers of governmental entities or hospitals.
Although Arizona extends protection to a nonprofit entity for whom the volunteer provides services, other states protect only the individual volunteer and not the entity itself. Indeed, a few states condition protection of the volunteer on the entity or, in the alternative, the individual volunteer having applicable liability insurance coverage in a certain minimal amount to ensure injured individuals have adequate compensation. Some other states, while not immunizing an entity, impose a cap, equal to the statutory minimum amount of liability insurance coverage required, on the amount of damages that may be recovered against an entity. Accordingly, an entity that has an applicable insurance policy in effect may be liable in an amount only up to the statutory minimum.
All states impose some restrictions on the protection granted to volunteers. For example, certain types of conduct are usually excluded, ranging from conduct that is wanton and willful, fraudulent, reckless, in bad faith, intentionally tortious, illegal, or grossly negligent; and in a few cases, even ordinary negligence may exclude protection. In a number of states, conduct involving the operation of a motor vehicle is excluded. Several states have broadened the exclusion to include operation of other types of vehicles as well, such as airplanes, boats, etc. Sometimes the exclusion is limited to the amount of applicable insurance coverage. The effect of such a provision is to limit any damages to the amount of any insurance recoverable and protects an individual volunteer from liability beyond the limits of insurance coverage. In addition, federal claims and acts or omissions that occurred prior to the effective date of the immunity provisions are excluded. Many states also exclude actions brought by the state attorney general or another state officer.
One primary assumption in H.R. 60, H.D. 1, was that Hawaii has one of the most restrictive volunteer protection laws in the nation. After comparing Hawaii's laws, which afford protection only to uncompensated officers and directors of nonprofit corporations and volunteers providing services to state agencies, with those of other states, one must conclude that Hawaii indeed has one of the more limited volunteer protection provisions. If the Legislature is inclined to broaden the scope of protection, it would need to consider a number of issues including, but not limited to, the following: which volunteers would be covered and how would they be identified (e.g., volunteers of nonprofit organizations, volunteers of hospitals or other for profit entities; sports volunteers, or volunteers of county agencies); would protection be limited to uncompensated individuals and how would "compensation" be defined?; if volunteers of nonprofit organizations are included, how would nonprofit organizations be defined?; would protection of a volunteer be conditioned upon the volunteer or the entity for whom the volunteer provides services having liability insurance coverage; would entities be protected also or, if not, would there be a cap on their liability?; what conduct would be excluded from protection? would conduct involving a motor vehicle be excluded and, if so, would the exclusion from immunity be limited to the amount of applicable insurance coverage?
Chapter 4 summarized the responses of nonprofit organizations, the State and the counties that were surveyed in an attempt to obtain information on liability issues surrounding the use of volunteers. The survey of the nonprofit organizations revealed that, not surprisingly, volunteers contribute substantially to the invaluable work of many nonprofit organizations. Indeed, some organizations clearly could not continue to operate without volunteer services. Moreover, given the current state of Hawaii's economy, the efforts of volunteers undoubtedly will become even more critical to an organization's operations. Nevertheless, organizations appear aware that use of volunteers may increase their exposure to liability. Over half of the nonprofit organizations responding to the Bureau's questionnaire indicated they have a risk prevention or safety program in effect that covers their volunteers. Also, most indicated they have either formal supervision over volunteers or at least written guidelines in place for volunteers.
Although a perception lingers that use of volunteers increases the threat of lawsuits demanding astronomical damages, this does not appear to be the reality experienced by Hawaii's nonprofits. Only three of the nonprofit organizations responding to the Bureau's questionnaire indicated that any suit involving a volunteer had been filed or threatened; and one of these involved an injury to a volunteer, as opposed to an injury caused as a result of a volunteer's acts or omissions. Moreover, none of the twenty-five responding organizations reported knowing of any other nonprofit organization that had been sued or threatened with suit. Finally, only two respondents reported having had an insurance claim filed relating to a volunteer. Of these, one indicated the claim was for medical only and was "small."
Another assumption in H.R. 60, H.D. 1 was that nonprofit organizations relying upon volunteers find it difficult or expensive to obtain liability insurance as a result of this reliance. The nonprofit organizations' responses do not appear to give great support to this assumption. Of those nonprofit organizations responding to the Bureau's questionnaire, only three indicated they are neither self-insured nor have liability insurance that covers volunteers. Of these: one relies upon the individual volunteers having personal insurance to cover their actions; one indicated they used to carry liability coverage for volunteers, but had to drop it because of budget cuts; and one responded it has no liability insurance at all because the organization has only one volunteer and no employees. Two-thirds of the respondents reported having liability insurance coverage for volunteers. The others indicated they are self-insured. In addition, many have coverage for injuries to a volunteer. Also, most have directors and officers liability coverage. Moreover, all but one nonprofit indicated they had never had a problem obtaining insurance coverage. The one reporting a problem attributed it to the insurance market and eventually found another carrier. Three respondents reported an insurer's failure to renew, but only one was related to the nonprofit organization's financial condition. The other two explained that the insurer dropped that type of coverage for all its insureds. Only one respondent reported a reduction in coverage as a result of Hurricane Iniki. Although the responses did reflect some concern over insurance costs, most of the comments did not relate to liability coverage. Furthermore, cost increases appear to be the result of other factors in the insurance market unrelated to the use of volunteers.
Only the State and Hawaii and Kauai counties responded to the Bureau's questionnaire concerning use of volunteers by government agencies. Similar to the nonprofit organizations, the State and counties indicated an awareness that using volunteers could potentially increase their exposure to liability. To address and reduce the potential risk posed by volunteers, both the State and Kauai County have instituted risk prevention or safety programs and have imposed certain reporting requirements. Furthermore, although Hawaii County reported a claim pending because of the alleged actions of several volunteers and the Attorney General reported a prior suit against the State involving an injury incurred by a volunteer, it would appear, at least based upon the responses received, that neither the State nor Kauai or Hawaii county has experienced substantial liability because of the actions of volunteers.
Although somewhat peripheral, one significant point concerning the access to confidential records by volunteers of government agencies has come to light that bears mentioning. This concern was raised by the Honolulu Corporation Counsel in a memorandum opinion, in which it opined that, by permitting volunteers access to confidential information, a county agency and its employees may be liable for disclosing confidential information to the general public, in violation of state and county law.282 In addition, the Honolulu Corporation Counsel contended that state and county laws restricting employees from disclosing confidential information to third parties do not apply to volunteers because they are not considered "employees" of the city and county.283 Thus, the Corporation Counsel concluded that there are no restrictions on and concomittant penalties to discourage such disclosure by volunteers.284
It is not clear whether the State Office of Information Practices or the State Attorney General would take this same view with respect to volunteers of state agencies who, unlike county volunteers, are treated as employees of the State for purposes of state tort liability under chapter 662 of the Hawaii Revised Statutes.285 Likewise, volunteers of Kauai county are considered county employees for purposes of section 8.04 of the Kauai county charter, dealing with the powers and duties of the county attorney to represent all officers and employees of the county in all matters relating to their official duties.286 Furthermore, it would appear that at least "good faith" disclosures are protected under section 92F-16, Hawaii Revised Statutes. Nevertheless, to ensure adequate protection of confidential government records and volunteers who may have access to them, chapter 90 of the Hawaii Revised Statutes, (dealing with state volunteers) could be amended to clarify that volunteers are considered employees for purposes of chapter 92F (Uniform Information Practices Act). Because county volunteers are not covered under chapter 90, the counties may need to adopt a similar provision to ensure protection of their own volunteers and agencies, with respect to disclosure of confidential information, or chapter 90 could be amended to apply to the counties as well as the State.
The meager response rate to the Bureau's survey of insurers, discussed in Chapter 5, precludes any meaningful conclusions. Nevertheless, the responses, such as they are, tend to corroborate those of the nonprofit organizations that they have experienced neither a substantial increase in liability insurance costs nor difficulty in obtaining liability insurance coverage because of their reliance on volunteers. Only one insurer reported an increase in property-casualty rates, but the 6.4 percent increase was attributed to the Hawaii hurricane relief fund assessment charge. Furthermore, all three insurers completing the questionnaire were unanimous in their responses that: they have not refused to renew a nonprofit insured's policy; their reinsurer has not limited either the amounts or kinds of coverage they can offer to nonprofits; and they have not experienced an increase in the amount they must pay for reinsurance for nonprofits.
It should be noted that one insurer, who did not complete the Bureau's questionnaire, confirmed a reluctance to insure nonprofits for reasons that, while including the use of volunteers, have more to do with the nature of nonprofit entities. Nevertheless, two other insurers who have either no nonprofit insureds or only one such insured indicated the reason behind these low numbers is not a reluctance to insure nonprofits but stems from the fact that either nonprofits have not applied to them for insurance or nonprofits have rejected their proposals.
With respect to the number of claims filed against nonprofits during the past twenty-four months, two of the insurers reported a total of fifty-one claims filed. This number appears to contrast sharply with the report of one claim each by two nonprofit organizations. However, the nonprofits were reporting only claims involving a volunteer; whereas the insurers were reporting all claims against nonprofits.
In summary, although the situation for Hawaii volunteers and nonprofit entities does not appear to be as dismal as it may have been at the height of the insurance crisis, Hawaii nevertheless lags behind most other states in providing protection to volunteers and the entities they serve. Given the current state of the economy and the concomitant need to rely increasingly upon volunteer services, the State would be wise to take measures to limit the liability of volunteers in order to ease their concerns regarding personal liability associated with volunteer work and to maximize this vital human resource. As a starting point for consideration, if the intent is to put Hawaii in the mainstream with respect to volunteer services protection laws, the following elements could be included:
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