Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Morning, and welcome to the House Environment Committee. This morning, we are getting up to speed on an amendment on actually, it was s two eighteen, the chloride BMP training program that went through our judiciary committee first. Welcome, chair. Yeah. Martin Malone, representative from South Burlington and chair of

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: the House Judiciary Committee. We heard from witnesses this morning on this bill. We heard from the sponsor of the bill. We heard from somebody from the Vermont League of Cities and Towns, and then an attorney representing Vermont Trial Attorneys Association. So, we voted to find the amendment unfavorable in a straw poll of seven twenty two. Primary reason for that is really process related. This is a fairly complex area of law. To change it on a floor amendment, really isn't appropriate. And this really came, primarily from my vice chair, representative Burditt, who was very concerned about proceeding on such short notice, particularly because really the underlying this bill, or the amendment, it touches on insurance. That the conversation became very confusing for me because I don't do insurance because that is Commerce Committee. And this is something that really needs, I think, significant time in the Commerce Committee and possibly government operations as well because it involves municipality governance. It needs more time, it needs more eyes to really do this appropriately. So that's really on process side of this. The other side of it is looking at so we're looking at municipalities, but looking at people who may be injured. And if an individual, because of carelessness of a municipal employee, suffers a catastrophic injury. And there was an example of a case that didn't involve salt or slip and fall, but it's the one case that maybe folks have heard about in Addison County that I believe was in Brandon, and a lamp post that individuals had neglected for a very long time in the municipality. Fell over and struck a 30 year old woman in the head and rendered her quadriplegic. And so this person is an example where you could have a catastrophic injury and in that situation, insurance paid for that. If this was in place, it's not clear that, know, well, I think it's clear that this cap would have been $500,000 which would not be nearly enough to help this person for the rest of their life. That's just one example. But the point is that putting the cap on, it's like who's going to have to pay if the cap's not there? It's gonna be insurance company. We have no evidence was provided to us that this would in any way impact the premiums. This in in fact, the Vermont League of Cities and Towns witness said this is a very small protection for municipalities, which says to me that very unlikely it's going to affect insurance premiums. It would if the cap was there, the individual would have to take care of their medical cares and for the rest of their life. And that could be in Medicaid, it could be in under insurance. It could be by the state. If somebody's rendered disabled, the state doesn't turn their back on the individual. And so ultimately taxpayers could be paying for an individual who gets a catastrophic injury and doesn't have a way to get the funds from insurance companies because there's a cap. So that's the other issue. That's, you know, the bottom line is with a lot more testimony, we would definitely need a lot more testimony to understand the impacts on insurance rates and municipalities, and not just this committee, but underlying that is this basic fundamental need to take care of individuals if there's been carelessness by government. So that's kind of what we heard, and so I'm happy to answer questions.

[Rep. Amy Sheldon (Chair)]: Representative Hoyt.

[Rep. Michael Hoyt (Member)]: Pardon. Thanks. Did you did the sponsor mention anything? Oh, here we go. About the the reasons for those particular monetary amounts as being caps? 500 and I think the aggregate is like 2,000,000. Is that

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: Yeah. So taken from some Yeah. That my understanding is that there's a state law that is a cap. There's a state law has a cap that that cap, and the municipality wants to have essentially the same cap.

[Michael O’Grady (Legislative Counsel)]: Okay, gotcha.

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: I will note that in the state law 12 VSA 5,601, it does have this cap, but it does also specifically, in subsection F, says that the limitations, this cap on limitations doesn't apply to claims against the state of Vermont to the extent there exists coverage under a policy. Okay. Liability insurance purchased by the secretary administration. So there is this kind of other way to get more than what's the cap in this under state law.

[Rep. Michael Hoyt (Member)]: Gotcha. Thank you.

[Rep. Amy Sheldon (Chair)]: Representative Lawson. Yep.

[Rep. Sarah “Sarita” Austin (Clerk)]: So I'm assuming that the person who was injured had a right to sue because it seems like best practices weren't followed with the light post. So where does that fall in? Because my understanding with the chloride bill is as long as the operator is following best practices and keeping records, a cap on that. Right? There's not a cap.

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: It's an affirmative defense. Right. And so if the municipality is following those rules that are in the bill that you folks know much better than I do, then they have an affirmative defense against any kind of damage claim that occurs. And I will also point out that defense doesn't work if it's gross negligence. Right. Really recklessness. This amendment would put a cap on a finding of gross negligence as well to the extent that the municipality is because the municipality isn't always and Mike could get into this if you wanna get dig into it. But miss municipality isn't always on the on the hook for gross negligence, but they can be, and this would cap.

[Rep. Sarah “Sarita” Austin (Clerk)]: And so would it be $500,000 for anything, not just slipping on isocosic chloride? It would be a plow truck hitting a car or, you know, would it be any accident that the municipality

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: would be in? Just as it relates to SALT. Just as it relates. It's my understanding of of the amendment, is relatively narrow in that respect.

[Rep. Christopher “Chris” Pritchard (Member)]: Okay. Thank you.

[Rep. Amy Sheldon (Chair)]: I I guess I'm wondering about a disincentive. I don't the first line of this amendment is if a municipal salt applicator or municipality does not qualify from the affirmative defense, so they would not qualify if they weren't following the BMPs or hadn't hadn't done the training. So this is, a incentive to not follow the BMPs and do the training. I'm seeing nodding from our legislative council. Do you wanna just speak to that, Michael?

[Michael O’Grady (Legislative Counsel)]: Well, I think it goes back to the original or the intent of this is to put the cap on liability regardless of whether or not the affirmative defense was met. It's comparable to the state court claims act which you get to put a cap on the amount of the award albeit it's a little bit different because the state does have insurance as well. But that's that's what this amendment would do. It's like regardless if you meet the affirmative defense, you still have that cap on your liability from your municipal, chloride application.

[Rep. Amy Sheldon (Chair)]: And thank you for joining us, representative. I'm sorry. This is a little bit of an unusual scenario that we're in. But if you wanna I'm not sure we have time for, like, your whole presentation, but if you could just tell us why you're sponsoring this. Thanks, Mark. What what's the problem you're trying

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: to solve here? Sure. Michael Hoyt in Hairy City. What I'm trying to solve is, one, an inequity that's been in place since apparently 1960s, which municipalities don't get the same liability caps as the state of Vermont does. And I found out this morning also that our neighboring states also have liability caps regarding this that are even lower than what I have presented here. But the issue that I'm trying to prevent or to solve with this is a long standing concern that the LCT has mentioned over and over again regarding this bill is that there's no liability cap. They have asked for it. They've wanted I think you guys took testimony on 86 last year regarding it, and there was significant amount of conversation about having the cap put into that bill. Unfortunately, it did not. I was going to do the amendment for that as well. We need to protect our municipalities. You know, our communities, our municipalities, they're there for us. The cap the helps with containing costs. We did hear from, I think it was Brandon, was that correct? Was the the guy that was involved in the lawsuit from Brandon? It was like $9,000,000 That's a that's a lot of money for a municipality to pick up. That's my understanding. I'm not entirely sure of that particular thing, but it's it's to protect our municipalities.

[Rep. Amy Sheldon (Chair)]: It would have been their insurance that picked it up.

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: I'm not sure if the insurance actually picked it up. We didn't get enough details on it because there wasn't enough time.

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: I think the the what's I think

[Michael O’Grady (Legislative Counsel)]: they say that the insurance would

[Rep. Amy Sheldon (Chair)]: I believe that Christopher Bailey. Okay. Yeah. Sorry. And

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: here's the thing. Right? Like, one of the things that the LCT has said is that if you want buy in, this is one way to do it. People, you know, they're not municipalities are not gonna take that chance. That's what VLCT has said. They're not gonna take the chance on trying to reduce their salt if they're facing liability claims.

[Rep. Amy Sheldon (Chair)]: I think that's what the bill does, is try to reduce the liability exposure, folks who reduce their salt.

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: Yeah. The problem is is that with with attorneys, you can get through just about anything. But

[Rep. Amy Sheldon (Chair)]: Before we ask questions, I just wanna have a clarifying point. I think legislative council said that so there's this state cap that this parallels, but then you said, but the state has insurance. So does that mean that the insurance would go beyond the cap? And the town wouldn't this would cap the insurance claim at the town?

[Michael O’Grady (Legislative Counsel)]: Amendment uses the same cap, the 502,000,000 cap, but municipalities don't have that same provision about coverage for statewide actions.

[Rep. Amy Sheldon (Chair)]: Sorry, say that again. They don't have the provision.

[Michael O’Grady (Legislative Counsel)]: So there's a whole department at the agency of administration, the risk assessment department, and they carry insurance for multiple different policies or for state buildings and state agencies and state acts. And so effectively there's that $500,000.2000000 dollars cap. But if you can prove something like gross negligence or if you can prove, say, the person was significantly harmed, there are instances where the state insurance coverage also provides.

[Rep. Amy Sheldon (Chair)]: So just

[Rep. Christopher “Chris” Pritchard (Member)]: to really further clarify what you just said, if we took that example where someone had that horrible injury, it became quadriplegic, and if there had been a cap at the municipality level, they would have only received 500,000 instead of 9,000,000. In the state's case, they may have received 9,000,000, even with the state the way the state's structured statute is. If it was I mean,

[Michael O’Grady (Legislative Counsel)]: you you would have to they did in that case. They went to mediation. They vetted the cost, how much it would cost to support that person over time, and then they agreed to remove the insurance company with the

[Rep. Christopher “Chris” Pritchard (Member)]: settlements. But that's different than how this provision would work for municipalities.

[Michael O’Grady (Legislative Counsel)]: This would have a cap because it doesn't have that if you go up the state can also cap carry insurance.

[Rep. Amy Sheldon (Chair)]: Oh, Katalivia, then Pritchard.

[Rep. Michael “Mike” Tagliavia (Member)]: Okay. That was one question answered. The other question I think I have is for, representative Lalonde. You mentioned something about possibly having commerce look at this with relation to insurance. In the interest of covering all our bases and not finding out that we have unintended consequences that we didn't think of, Is it in our best interest to let Commerce take a look at this and not have it go to the floor today only because we need to deliberate or one of our committees needs to deliberate a little bit more?

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: So I don't think so. I mean, I think as as representative verdict suggested, this is a bill that is going to need should need get significant time and should be a bill on its own and should be one that is taken up next biennium. Because it is fairly complicated, we're gonna have to find out a lot of information. We started trying to explore information about the last fifteen years of what kind of damage claims are we talking about, to really find out if there's any cost savings in this, because it was definitely not clear, and Vermont League of Cities and Towns couldn't say there were cost savings either, because those cost savings come through the insurance premiums. So to delay this at this point doesn't make sense. It's the kind of thing. So just I do know that this is something that the the Vermont League of cities and towns have been trying to get for years and and hasn't hasn't gotten there. But on a floor amendment and this bill doesn't seem to be the right path. And and frankly, at the end of last month when we first took this up and had Vermont League of Cities and Towns in, they took no position on the bill. They said they couldn't either support it or oppose it. They did not specifically bring up this as a concept that they could have could have supported the bill on. So if if in fact you know this particular amendment. So no, I would say delaying, because it really should get some significant time on its own. And it's not necessarily just that committee. I mean, it's one of those kind of multiple committee type issue, that we need to properly vet.

[Rep. Christopher “Chris” Pritchard (Member)]: Thank

[Rep. Michael Hoyt (Member)]: you. So I just wanna understand one part of this. Does that mean if the if the cap is in effect, that that that really isn't is that give the insurance company an out? As as I read and I think as

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: you know, that's maybe a better question for for the legislative council.

[Michael O’Grady (Legislative Counsel)]: I wouldn't say it's it's an out. It's just a limit on what they would have to pay. But they wouldn't have to pay

[Rep. Michael Hoyt (Member)]: But is it limited to that cap?

[Michael O’Grady (Legislative Counsel)]: Be limited to that cap. Whereas in the state, it says the limitations do not apply to claims against the state to the extent that there exists coverage under a policy of liability insurance purchased by the Secretary of Administration. So that cap doesn't apply if risk assessment has an insurance policy, which they do, and you're all covered by it. So you don't have that corresponding vision about insurance exceeding the cap.

[Rep. Christopher “Chris” Pritchard (Member)]: Go ahead. Mean, update.

[Rep. Rob North (Member)]: Again, just sort a follow-up on that. So it it my understanding, the original intent of this from the LCT was to exactly match at the municipal level what the state enjoyed, But it seems like the reason why it's falling down is because it's not the same. It doesn't match. It's the equivalent language. It is what the state enjoyed.

[Rep. Michael Hoyt (Member)]: So why didn't when we when we were creating this amendment make it just simply match the language that the state enjoys?

[Michael O’Grady (Legislative Counsel)]: So I did, but the clerk said that I was not gonna be germane.

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: Can I speak? Yes. So it wasn't the reason why it wouldn't germane is because it was put into the tort section. That's the reason why it wasn't remain. And and so this is a really good conversation to have because the intent was exactly what, representative North just said, which is the same protections as the state of Vermont and the liabilities. And I I clearly well, I'm not an attorney, so I do apologize for that. But to the way that I submitted it originally was it was through the tort section of it and then applied to everything. And when I was told that there was going to be some germane issues, I I said, let's scale it back to only apply to salt, to the the salt applicators. The the intent of it is to have the same structure as the Vermont, the the those liability caps that Vermont currently has, just only applying to salt for municipalities.

[Michael O’Grady (Legislative Counsel)]: But right now, the state has insurance policies that exceed those paths.

[Rep. Amy Sheldon (Chair)]: Yeah, and the towns may

[Rep. Michael Hoyt (Member)]: or may not.

[Michael O’Grady (Legislative Counsel)]: And the towns may or may not. And so you you will have potential for differences between the two liability protections.

[Rep. Amy Sheldon (Chair)]: Right. And this is just a felt bill. Representative Tagliavia. Do we

[Rep. Michael “Mike” Tagliavia (Member)]: have any idea was there any discussion on how many small towns, given this discussion, might find themselves between a rock and a hard place because of a lawsuit that comes out of this?

[Michael O’Grady (Legislative Counsel)]: Remember, the towns don't have to participate in this at all. They don't have to participate. They don't it's a voluntary program.

[Rep. Michael “Mike” Tagliavia (Member)]: Ones that decide they want to for whatever benefit they see, what about those? Has there been any look at the financial worst case scenario, has there been any look to see if a cap versus no cap has any benefit to a town that does sign on?

[Michael O’Grady (Legislative Counsel)]: I mean, the cap has the benefit of limiting the liability. So if there would be an inability to assurpiate from the defense or behavior was grossly negligent, the municipality would still assert the cap of 500,000, and they wouldn't have to show anything. They would just have the cap.

[Rep. Amy Sheldon (Chair)]: But that question, this is that that first line keeps getting me. If the SALT applicator doesn't qualify, then they get this. So, actually, it's for people who aren't participating in the program.

[Michael O’Grady (Legislative Counsel)]: Or they don't or they don't. They are participating, but weren't keeping records. They grossly negligent. Yeah. So then they would get the cap. Okay.

[Rep. Amy Sheldon (Chair)]: Alright. Final questions? Representative Chittenden?

[Rep. Christopher “Chris” Pritchard (Member)]: Well, I just want to remind the committee that we took testimony from the League last year on 86 about their request for all municipalities, not about SALT, for this cap to apply to all municipalities to reflect the cap that's in state, for state employees. And so did judiciary. And judiciary took quite a bit of testimony last year and decided they couldn't support it. And it needed a much more robust approach to even consider these things that we're discussing. And so that's why we didn't attach a broader amendment to our bill last year. And also why we switched towards an affirmative defense, which the league was more comfortable with. And so the league does support our bill. That's what they testified to already as it stands. They'd still love the cap. They still really are pushing us as a body to take up this other bill.

[Rep. Amy Sheldon (Chair)]: Representative Austin.

[Rep. Sarah “Sarita” Austin (Clerk)]: Yeah. This is gonna be like kind of a far out question.

[Rep. Amy Sheldon (Chair)]: Oh, where that surprises me. So

[Rep. Sarah “Sarita” Austin (Clerk)]: Michigan, the reason there was lead in the drinking water was because of chloride. And I'm wondering, were there any suits or what happened there? Because chloride is now if it's if we're using a lot of chloride, you know, there's a chance it's getting into our groundwater and rusting our pipes and getting into our drinking water.

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: I know there were a lot of lawsuits, but I don't have any details about those one. Yeah.

[Michael O’Grady (Legislative Counsel)]: So so that wasn't about best management practices for the removal of snow or ice. It was due to chloride, but what they failed to do is they failed to maintain their system according to the Safe Drinking Water Act, and there were multiple failures in their inspection and replacement and then also what's called their disinfectant byproduct rules. They just weren't implementing the law to receive drinking water the way that they needed to. And there's multiple examples of state employee negligence in the application of those laws in Flint and elsewhere in Michigan.

[Rep. Sarah “Sarita” Austin (Clerk)]: But it's possible that chloride could be infiltrating our groundwater, rusting our pipes, and getting into our drinking water. It's is that I mean, is that a remote possibility?

[Michael O’Grady (Legislative Counsel)]: It's possible.

[Rep. Amy Sheldon (Chair)]: We took testimony that it's getting into the groundwater. I think that's really like, but that's a that is not really germane to this. And I do I know that the body is on break right now and waiting for us to wrap up, so we need to move on in this in this conversation. I see. Yeah. So I think we should do

[Rep. Michael Hoyt (Member; Sponsor of the amendment)]: a And straw

[Rep. Amy Sheldon (Chair)]: so is there a motion to I move to find the amendment unfavorable. There you go. Representative Logan moves. But it is just a straw poll, so we just say Right. I'll just say it's one of those reverse ones. If you find the amendment unfavorable, raise your hand. I'm seeing 10. Thank you. 10 finding it unfavorable. And then if you find it favorable, one, just to make sure we got that right, ten, one, zero. That's for Ela. Thank you all. Thank you.

[Rep. Sarah “Sarita” Austin (Clerk)]: Yeah. No.

[Rep. Michael “Mike” Tagliavia (Member)]: Are you