Volunteer fire departments are at risk

bortiz@herald-leader.comAugust 14, 2008 

FRANKFORT ­— In small-town Kentucky, volunteer firefighters are part tradition, part public service.

The state has more volunteer fire departments than cities — 767, according to the Kentucky Fire Commission.

The Kentucky Supreme Court on Wednesday heard oral arguments in a case that the Kentucky League of Cities says could mean the end to small-town volunteer fire departments.

“It would be dire because it would be a very chilling effect on volunteers, which is what many, many of our small communities rely on to provide fire services,” said Sylvia Lovely, executive director and chief executive officer of the Kentucky League of Cities.

State law has long prohibited lawsuits against volunteer fire departments — and volunteer firefighters — by extending sovereign immunity to them.

A firefighter cannot, for example, be sued because a homeowner thinks a fire wasn't put out fast enough.

But the Kentucky Court of Appeals ruled that law unconstitutional last year.

That ruling was tested Wednesday, when arguments were heard in a lawsuit filed by a motorcycle salvage yard in tiny Caneyville, a Western Kentucky town of 637.

The suit was dismissed at the trial court level, but was reinstated by the Court of Appeals.

Orville and Cathy Green's business suffered $200,000 in damages because volunteer firefighters bungled their response, says their lawyer, Alton Cannon of Leitchfield.

‘A lot of tears shed'

The Greens are just now returning to the same financial condition they were in before the fire, which was five years ago, Cathy Green said.

“There are still some things we miss,” she said in an interview. Orville Green has tinkered with motorcycles on and off his entire life. After a 1988 truck accident, he started working on bikes again to pass time.

The hobby morphed into a small business, Green's Motor­cycle Salvage.

On the ice-cold morning of Dec. 3, 2003, a shed at the back of the business's property caught fire, possibly because of an electrical short, Cathy Green said.

The Caneyville Volunteer Fire Department was called, and it arrived with a small firetruck.

It soon became apparent, Green said, that the volunteers were not equipped to handle the fire. He begged them to call the professional, paid fire department to the east in Leitchfield.

“We were begging for more help the whole time and they wouldn't do nothing about it,” Green said.

Cathy Green says the volunteers underestimated the fire.

By the time volunteers changed their mind, it was too late. The fire had consumed another building which housed all of Green's inventory, equipment and tools.

Green's buildings were insured. The motorcycles and parts were not.

“We weren't planning on anything like this,” Green said.

An insurance company replaced the buildings. But the Greens had to borrow money to buy new tools and motorcycles. They also had to endure the trauma of seeing their business go up in flames.

“It was rough, don't you worry,” Orville Green said.

Added Cathy Green: “A lot of tears shed, trust me.”

Right to sue

Cannon, the Greens' attorney, says the state constitution guarantees the couple's right to sue Caneyville for negligence, under what's known in legal circles as the jural rights doctrine. The doctrine, which is unique to Kentucky, is derived from three sections in the state constitution that protect an individual's right to sue.

Insurance companies have long sought to have the Supreme Court overturn the doctrine because the doctrine has been used to thwart tort reform in Kentucky.

Caneyville's lawyer, Greg Stivers of Bowling Green, echoed those arguments to the Supreme Court on Wednesday.

Caneyville is insured by the Kentucky League of Cities.

The state constitution also recognizes sovereign immunity, which prohibits lawsuits against the state and counties in most cases. But it does not protect municipalities.

A Kentucky law extends immunity to firefighters.

Cannon says calling volunteer firefighters part of the state is like calling a dog a horse.

“Was is it Shakespeare who talked about a rose by any other name?” he said.

Cannon says the lawsuit will not hurt small-town fire departments, noting that virtually all of them have insurance. He called sovereign immunity a freebie for insurance companies.

But Lovely said an adverse ruling would cause a substantial increase in insurance premiums. That, in turn, would hurt the small towns that have so little money that they couldn't afford a paid fire department to begin with.

Volunteer fire departments are a major provider of services in rural areas. Pike County, for instance, has 27 fire departments. Only one of them is paid, said Ronnie Day, executive director of the Kentucky Fire Commission.

Caneyville's mayor, James P. Embry, said higher insurance premiums would be a real burden on his town.

“It would be hard to come up with more money, that's for sure,” he said.

A law blogger and retired judge said it's unlikely that the Supreme Court will overturn the jural rights doctrine, which has become an ingrained part of Kentucky case law.

That would mean a blanket ban on lawsuits would not stand.

But Stan Billingsley, who runs lawreader.com, says that volunteer firefighters might still be protected by qualified immunity if they make their decisions in good faith.

The state constitution was crafted in the Gilded Age in 1890, a time when railroads and large corporations were seen as having abused their power and were largely distrusted by the public.

Billingsley said the Supreme Court has discussed “the danger of giving the legislature the power to ‘favor large corporations and railroads' by limiting claims against them.”

Reach Brandon Ortiz at (859) 231-1443 or 1-800-950-6397, Ext. 1443.

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