Providing Emergency Assistance Out of State

Employees of Minnesota cities often deploy to natural disasters and other emergencies outside of Minnesota. In light of the very destructive tornadoes that caused catastrophic damage in Oklahoma this week, Minnesotans may again be called upon to provide emergency assistance.

Before a Minnesota city deploys its personnel or equipment to an emergency, it is important to consider liability concerns. For example, what happens if an employee is negligent, and a third party is injured? In addition, who will be responsible if employees are injured or the city’s equipment is damaged? Cities should document these matters in a written agreement.

Do not self-deploy
While it may seem like a good idea to just send assistance when a large natural disaster occurs, a city should never self-deploy resources. Rather, the city should only send resources through some coordinated effort to provide the resources that are actually needed. If a city did self-deploy, it would likely be on its own for liability if something bad happened.

While the city’s LMCIT coverage would respond to claims against the city, it may not be enough. Minnesota employees are probably not covered by the tort caps in another state. Thus, the city could be taking on unlimited liability far in excess of its LMCIT coverage. From a liability standpoint, the city should try to transfer liability to another entity.

EMAC
The state of Minnesota, along with all other states, participates in the Emergency Management Assistance Compact (EMAC). EMAC is an interstate agreement that each state adopts by statute (see Minnesota Statutes, section 192.89) in order to provide an orderly mechanism through which emergency assistance can be requested and offered. EMAC is coordinated by the National Emergency Management Association and, at the state level, through Minnesota Homeland Security and Emergency Management (HSEM).

Although EMAC is a state-to-state arrangement, much of the actual emergency assistance is provided by local government employees rather than by state employees.

When EMAC is activated, HSEM is notified of any need for assistance, and HSEM in turn notifies local responders. The city providing assistance will sign an intergovernmental agreement with HSEM that specifies the terms and conditions under which assistance will be provided outside Minnesota. Both section 192.91 and the current version of HSEM’s intergovernmental agreement provide that the city’s employees are deemed to be state of Minnesota employees for purposes of tort liability.

This provides two important protections for city employees responding under EMAC:

  • It gives city employees immunity for liability claims arising from their acts or omissions while providing disaster assistance to another state. There’s an exception for “willful misconduct, gross negligence, or recklessness.”
  • It provides that city employees providing interstate disaster assistance under EMAC are considered agents of the requesting state for tort liability and immunity purposes. This basically makes the requesting state responsible to defend and indemnify the sending city’s employees if they’re sued.

In most cases, therefore, liability should not be a concern for a city providing assistance in another state under EMAC. However, if it were to somehow happen that there was a liability claim against an LMCIT member city, and it was not handled by the state receiving the assistance, the city’s LMCIT liability coverage would respond to that claim, just like any other liability claim against the city.

As is the case with providing assistance within the state of Minnesota under the emergency assistance statute, the sending city remains responsible under workers’ compensation laws for their employees’ injuries. A city’s LMCIT workers’ compensation coverage would continue to apply under an EMAC response.

EMAC also provides for the state receiving assistance to reimburse the party providing assistance for damage to the assisting party’s equipment. If for some reason an LMCIT member city wasn’t reimbursed by the receiving state for damage to its equipment or vehicles, the city’s LMCIT property and/or auto physical damage coverages would apply, just as with any other instance of damage to city vehicles or equipment.

Non-EMAC response
Minnesota cities may send assistance out of state, even if assistance under EMAC has not been requested. Under Minnesota Statutes, section 12.27, subdivision 4, Minnesota’s governor “may dispatch state equipment and personnel as deemed necessary if there is an emergency or disaster outside of this state.” Assistance may also be coordinated through some statewide organization and, in some cases, a governmental entity in another state may request mutual aid assistance.

No matter how the assistance is provided, it is important to have a written agreement in place. LMCIT suggests that cities follow the format of the LMCIT Model Mutual Aid Agreement (pdf). Most importantly, liability should be transferred to the entity that is requesting assistance. The agreement should also address how employee injuries will be handled as well as damage to the city’s equipment and property. Lastly, it is important that the city be entitled to full reimbursement of all costs related to providing the assistance.

LMCIT assistance
If your city will be sending assistance to an emergency out of state, the city attorney should review the written agreement before assistance is deployed. In addition, LMCIT will review the agreements free of charge to make sure that there are appropriate liability provisions in the agreement. Agreements or questions should be directed to Chris Smith, LMCIT risk management attorney, at csmith@lmc.org or (651) 281-1269.