law in any state, regarding the liability of volunteers for nonprofits, unless a State law provides a better protection for the volunteer. Under the federal law, volunteer directors, officers, and "trustees"(agents or fiduciaries) of qualifying nonprofits are personally liable for damages only when their misconduct is determined by a court to be willful, intentionally criminal, or derived from the operation of a motor vehicle. This federal law is new enough that there is as yet no federal case law ruling that the federal Volunteer Service Protection Act preempts state law in Maryland, Virginia, or Washington, D.C.
For some volunteers in some situations, in each of these three jurisdictions, the federal law will provide the better protection, but not always. Therefore, unless and until case law develops that specifically decides whether the federal statute preempts the state law in some or all cases, it appears that, for each volunteer's allegedly wrongful act,
VIRGINIA - Summary:
In effect since 1987, Virginia's statute for volunteers of nonprofits is generally more protective than U.S.C. ? 14503, so in Virginia, state law will usually prevail. The only circumstance in Virginia that, on the face of the two statutes, would give a volunteer better protections under the federal statute, is if the volunteer injures a plaintiff during the operation of a vehicle that is not required to be licensed (such as a bicycle, scooter, or riding lawnmower).
Liability Trends Today
Today, under either the federal statute or the VA statute, any proven criminal act of a volunteer, that results in damages to a plaintiff, will expose the volunteer to liability without protection of any immunity statute. Generally, if sued by a civil plaintiff, the defendant volunteer will want to claim the protection of the VA statute, Civil remedies ?8.01-220.1:1. Under that law, neither the corporation nor the volunteer is required to have any insurance coverage to be immune from liability. However, there is no shelter under either statute if the volunteer's act is determined by the court to be willful or criminal. Other exceptions to protection under the Virginia statute would be for acts of the volunteer that are not actually done in his/her narrowly construed role as a volunteer for the nonprofit. The Virginia Supreme Court has ruled that even if one is a regular volunteer of a charity, and is acting as a volunteer that very day, and on the premises of the charity, if the vo
It Matters Whom You Injure.
In the Mooring case, the court made the distinction that people working as volunteers to cater an event for a charity, are not immune from liability for injuries inflicted. In the Mooring case, a college professor, who volunteered regularly at a Boys and Girls Club, was held not to be acting for the charity at the time the plaintiff was injured because the professor was in the process of supervising his student teachers presenting a health class at the Club. Even though he and the student teachers were working without compensation, the court found he was primarily engaged in tending to his student teachers. This could be an example of the old adage that hard cases make bad law. In that case, a little boy lost his thumb (amputated) when the professor accidentally closed the classroom door on it. It might be that the severity of the injury had something to do with the court's desire to find someone liable for the child's loss. However, that case did create a strict standard for whethe
Make It Clear You are Volunteering Directly for the Charity.
Two years later, in another apparent stretch to find a deep pocket for children's injuries, the same court held that employees and owners of a private corporation who are volunteering their services to cater an event for a charity, are NOT covered under the Virginia immunity law, because the acts were being done at the behest of the corporation they ordinarily worked for, and not for the charity they were all working for that day. Bhatia v. Mehak, Inc., 262 Va. 544 (2001). The result, (happily for the injured children in that case), was that the plaintiffs could recover for their injuries that had been caused by mere negligence of the defendants. Had the court decided in either the Mooring or the Bhatia case (both supra) that the defendants were volunteers for the charity on the occasion of the injury, all the defendant volunteers would have been immune from liability because their acts were not willful or criminal, but merely negligent.
Lessons in the Law.
The lessons to be learned from the Virginia appellate decisions, are: 1) volunteers should make it clear they are volunteering their services directly to the charity and not for, or at the behest of, another corporation by which they are normally employed, and 2) charities should carry insurance against the chance that for severe injuries accidentally inflicted, courts are more likely to find an individual volunteer to have been acting outside the scope of his role as a volunteer for the charity - because that allows recovery for a plaintiff for mere negligence of the defendant "volunteer."
Some Limits on the Liability of Compensated Directors and Officers.
The same statute, in a separate section, Virginia Civil Remedies ?8.01-220.1:1, at part (B), now also limits the amount of damages for which compensated directors, officers, and trustees of IRC ?501 (c) or IRC ?528 (homeowner associations) corporations may be held liable. Damages can't exceed that individual's "compensation" for the twelve months prior to the wrongdoing, for damages arising out of a single transaction, occurrence or course of conduct. This limit applies only so long as the compensated director's wrongful conduct is not determined by a court to be willful, criminal or derived from the operation of a motor vehicle. Given the fact that there are no appellate cases that have been decided under this statute, and the tendency of the Virginia Court of Appeals to hold the corporate veil intact except where necessary to compensate vulnerable, injured beneficiaries of a charity, we should expect that: compensated directors and officers of charitable corporations will rarely be
A big problem not solved by either the federal, or the Virginia volunteer immunity statutes (or Maryland or DC's ) is that a director, officer, or volunteer accused of wrongdoing is not relieved of the expense and worry of defending a well drafted suit, and the director is still exposed to the jury's consideration of punitive damages, because the suit will be one for an intentional wrong. So, good officers' and directors' insurance is still key for protection.
MARYLAND Federal Statute Usually is Better for Maryland Volunteers - Maryland statute less favorable to Volunteers than Virginia Statute
Maryland's statute that protects volunteers of nonprofits, Courts & Judicial Proceedings ? 5-407, must be compared on a case-by-case basis with protections offered by the federal statute. (See the chart attached) Generally, unless the defendant volunteer is a health care provider, or knew or should have known of the misconduct of a colleague within the corporation (and by act or omission approved it or ratified it) the volunteer will be better off claiming the protection of the federal statute. Where a volunteer's alleged wrongdoing is the approval of, cooperation in, or failure to stop the wrongdoing of another, the Maryland statute is on its face less protective than the federal version, and significantly less protective of volunteers than is the Virginia statute.
Negligence Alone is Enough to Subject Volunteers to Liability Under Maryland Law.
The weakest part of the protection afforded by the Maryland statute is also arguably a good thing for volunteers. The Maryland statute allows liability of a volunteer for wrongful conduct that is negligent (Courts & Judicial Proceedings ? 5-407(b)(1)) but falls short of intentional or willful misconduct - for instance, for approval of or participation in an act of another that the volunteer should have known, but did not know, was wrong. That's either more exposure to suit or less exposure to large judgments, depending on how you look at it. The federal statute invites a plaintiff to tailor the wording of the suit so that the volunteer is sued for intentional or willful misconduct - because if not, then the plaintiff can't recover at all.
This raises the stakes for the sued volunteer because in a suit for intentional tort, evidence of the defendant's net worth and all his finances are admissible for the jury to see and hear (and the volunteer's complete driving record if the operat
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