A Menu of Suggested Provisions for Public Health Mutual Aid Agreements

Liability, Immunity, and Indemnity

Descriptive Note

Constitutional provisions, including those relating to governmental or sovereign immunity, and statutes, including tort claims acts, volunteer protection acts, Good Samaritan laws, EMAC, and other emergency response statutes will strongly influence the content of mutual aid provisions concerning liability, immunity from liability, or indemnity. EMAC, Article VI, for example, provides:

Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connections therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.

The ESAR-VHP Legal and Regulatory Issues Report and UEVHPA, cited as potential resources in the preceding section, may also be of assistance in analyzing and resolving legal issues, and in drafting agreement provisions, relating to liability, immunity, or indemnity. Obviously, involvement of legal counsel is particularly critical at all times when dealing with these complex legal issues.

Optional sample provisions

Establishing EMAC-like liability protection:

• Any person or entity of a Party rendering aid to another Party pursuant to this Agreement is considered an agent of the requesting Party for tort liability and immunity purposes. Any person or entity rendering aid to another Party pursuant to this Agreement is not liable on account of any act or omission in good faith while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith does not include willful misconduct, gross negligence or recklessness.
  
   

Conditionally indemnifying the responding party:

• The receiving Party, to the extent authorized by the laws of the State, agrees to indemnify and hold harmless the responding Party from liability.
  
   
• Each Party requesting aid pursuant to this Agreement expressly agrees to hold harmless, indemnify and defend the Party rendering aid and its personnel from any and all claims, demands, liability, losses, suits in law or in equity which are made by a third party. This indemnity shall include attorney fees and costs that may arise from providing aid pursuant to this Agreement. Provided, however, that all employee benefits, wage and disability payments, pensions, worker’s compensation claims, damage to or destruction of equipment and clothing, and medical expenses of the Party rendering aid shall be the sole and exclusive responsibility of the respective Party for its employees, provided, however, that such claims made by a third party are not the result of gross negligence or willful misconduct on the part of the Party rendering aid.

Retaining liability (no immunity or indemnity):

• Each Party to this Agreement shall be responsible for its own acts and omissions and those of its officers, employees and agents. No Party to this Agreement shall be responsible for the acts and omissions of entities or individuals not a party to this Agreement.
  
   
• Each Party shall be responsible for any claim or cause of action made against the Party or its employees arising under the performance of duties under this Agreement, and none of the Parties shall be required to indemnify, defend or hold harmless the other Parties for any such claim or cause of action.
  
   
• Each Party shall be liable for its actions in accordance with this Agreement and federal and state law, as applicable, including law of sovereign and governmental immunity. No term or terms of this Agreement may be construed as an express or implied waiver of sovereign and governmental immunity.
  
   
• Each Party shall be responsible for damages to or loss of its own equipment and waives the right to sue any other Party for any damages to or loss of its equipment, even if the damages or losses were caused wholly or partially by the negligence of any other Party, its officers, employees, or volunteers.

Absolving parties from liability for withholding or withdrawing aid:

• No party to this Agreement or any officer of any Party shall be liable to any other Party or to any other person for failure of any Party to furnish assistance to any other Party, or for recalling assistance.
• The execution of this Agreement shall not give rise to any liability or responsibility for failure to respond to any request for assistance made in pursuance of this Agreement.

Granting release or waiver of claims:

• Each Party agrees and hereby releases and waives all claims against all other Parties with respect to any loss, damage, personal injury, or death sustained by that Party, its employees, or third parties as a result of its participation in the activities covered by this Agreement, except to the extent that such claim alleges gross negligence or willful and wanton misconduct by a Party participating in this Agreement.