Attorney General Opinion No.

The Honorable Audrey Langworthy State Senator, Seventh District 6324 Ash Prairie Village, Kansas 66208

The Honorable Barbara P. Allen State Representative, Twenty-First District 8136 Rosewood Drive Prairie Village, Kansas 66208

Dear Senator Langworthy and Representative Allen:

In the interest of expediency we have consolidated your questions concerning whether a retired professional engineer who volunteers his services to a not-for-profit corporation is protected from negligence actions by K.S.A. 1993 Supp. 60-3601.

Subsection (b) of the statute states:

"(b) If a nonprofit organization carries general liability insurance coverage, a volunteer of such organization shall not be liable for damages in a civil action for acts or omissions as such volunteer unless: (1) Such conduct constitutes willful or wanton misconduct or intentionally tortious conduct; or (2) such volunteer is required to be insured by law or is otherwise insured against such acts or omissions but, in such case, liability shall be only to the extent of the insurance coverage."

The statute provides protection from liability for damages in a civil action for acts or omissions as a volunteer unless the conduct is (1) willful or wanton misconduct or intentionally tortious conduct; or (2) the volunteer is required by law to be insured or is otherwise insured against such act. When a statute is plain and unambiguous, effect must be given the intention of the legislature as expressed, rather than determine what the law should or should not be. Martindale v. Tenny,250 Kan. 621, 626 (1992) citing Randall v. Seeman, 228 Kan. 395 (1980).

Unlike health care providers who are required by law (K.S.A. 40-3402) to carry liability insurance, a professional engineer is not required to be insured against negligence actions. See K.S.A. 74-7001 et seq. Thus in our opinion, in the absence of willful or wanton misconduct or intentionally tortious conduct, a professional engineer who volunteers for a not-for-profit organization which carries general liability insurance is protected from liability for acts or omissions resulting in negligence actions.

We note that we have presumed for purposes of your question that the professional engineer comes within the definition of a volunteer found at K.S.A. 1993 Supp. 60-3601(a)(3). A volunteer is defined as a person who performs professional services for a not-for-profit organization without any compensation for such services other than actual or necessary expenses incurred in connection with the services performed. Additionally, the not-for-profit organization must have registered as a "501(c)" organization pursuant to section 501(c) of the internal revenue code, 26 U.S.C. § 501 and must have the requisite "general liability insurance" that is tailored to meet the potential kinds of liability loss exposures particular to the organization's liability insurance needs and consistent with the services or products that the organization provides.See Attorney General Opinion No. 87-174 (dealing with general liability insurance coverage); see also Kansas Nonprofit Organizations — what should you know about Senate Bill No. 28? Kansas Insurance Department (June 1987).

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Guen Easley Assistant Attorney General

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