How Helpful Are Charitable Immunity Laws?

Many states have enacted charitable immunity laws as a way to help protect volunteer workers from being sued in connection with their volunteer service. In some instances, charitable immunity laws can offer valuable protection to volunteer ministry workers; however, they do not offer the broad immunity from litigation that many may think.

Why do charitable immunity laws provide limited protection?

• Charitable immunity laws vary significantly by state. Although a few states offer broader protection to volunteer ministry workers, most state laws provide either very limited charitable immunity protection or no protection at all.

• Charitable immunity doesn't apply to the ministry organization itself. Charitable immunity laws apply to individuals and not to organizations. Even if a ministry leader or ministry worker is able to avoid involvement in a lawsuit; in general, the ministry organization can still be sued.

• Only those serving on a volunteer basis are protected. Charitable immunity laws are typically intended to protect only volunteer workers from lawsuits. Some state laws further limit this protection to volunteer members of a governing board of the charitable institution. So ministry workers who receive compensation often can still be sued if their work on behalf of the ministry results in injury to others. In some states, a volunteer worker who’s not serving in the role of a board member can also be sued.

• Charitable immunity laws frequently prevent only certain people from suing. In most states, charitable immunity laws are fairly narrow in defining who’s prohibited from filing lawsuits against ministry workers. Often, only those individuals who are considered to be “beneficiaries” of the ministry will be prevented from filing suit. Others who are not clearly benefiting from the ministry can still sue the ministry and its volunteers. Accordingly, an individual who is injured when picking up free canned goods from a food pantry may be prevented from filing suit against volunteer workers at the pantry. However, anyone who isn’t directly benefitting from the ministry—from bystanders to regular church attendees—will still retain the right to sue.

• Suit can still be filed in connection with certain activities and exposures. Many common causes of litigation fall outside of charitable immunity protection. These exempted activities and situations typically include employment-related claims, automobile accidents, and sexual misconduct allegations. Even if a church leader who wasn’t directly involved in any of these exempted activities, they can still be named in a lawsuit resulting from them.

• Charitable immunity applies only to certain types of wrongdoing. Charitable immunity laws do not protect any volunteer from a lawsuit alleging that he or she engaged in intentional or criminal acts. They also don’t apply to claims of gross negligence or willful and wanton misconduct. The protection of charitable immunity laws applies only to lawsuits alleging that the injury or harm was brought about by negligence on the part of the volunteer ministry worker.

• Charitable immunity does not apply to every kind of court award. While charitable immunity laws apply most commonly to compensatory damage awards, charitable immunity does not protect ministries or their volunteers from non-compensatory fines or penalties that a court may impose.

• Legal defense costs will still likely be incurred. Even if your state’s charitable immunity law applies to a lawsuit naming a ministry volunteer, it’s still typically the responsibility of the volunteer to respond in court and seek to be removed from the lawsuit. To accomplish this, the volunteer will likely need to retain an attorney and may need to go through some amount of legal “discovery” before they are in a position to seek a dismissal from the lawsuit. Even if the volunteer prevails in his or her efforts to apply the charitable immunity law, he or she is likely to have incurred several thousand dollars in legal fees to “win the case.”

Charitable immunity laws are typically intended to protect only volunteer workers from lawsuits. Some state laws further limit this protection to volunteer members of a governing board of the charitable institution.

Federal volunteer protection act helps protect from litigation

The federal government enacted the Volunteer Protection Act in 1997. The intention of the law was to offer volunteers in every state some protection from litigation. This federal law specifically preempts (supersedes) any state charitable immunity law if the federal act is broader than the state’s law.

While helpful, many of the limitations discussed previously also are present in the federal act and significantly dilute the potential protection of ministry volunteers that the act provides. In addition, nothing in the federal act prevents the charitable organization (or its insurer) from suing the volunteer to recover any amount that the organization was responsible to pay as a result of the volunteer’s actions. If a state charitable immunity law is broader than the federal act in any respect, then the broader state-based protection applies.

Should your ministry purchase insurance to help protect volunteers?

Most liability coverages protect not only the ministry organization, but also its employees and volunteers. Directors and Officers insurance provides coverage for financial loss to others resulting from board activity. D & O insurance typically will cover acts of ministry leaders that fall outside the protection of state or federal charitable immunity laws. D & O coverage, along with general liability coverage, auto insurance, and other specialty coverages help fill the many gaps noted above. By purchasing insurance, the ministry can help fill these gaps, and thereby keep its volunteers from having to pay for covered defense costs and court awards out of their own pocket.

Check with your attorney

As you can see from the above analysis, the extent to which a ministry volunteer will be protected from litigation in relation to his or her ministry work varies widely from state to state. The federal Volunteer Protection Act also must be considered when assessing the available protection that volunteers may obtain. If you’re uncertain of the protection that ministry volunteers have in your state, ask a local attorney to review the applicable state and federal charitable immunity laws with you.