GEORGE LEFTOFF, ESQ. Attorney for Franklin Square and Munson Fire District

We acknowledge receipt of your letter asking for an opinion whether, when members of your fire department attend funeral services for a member or former member of your fire department or a member of another fire department, the members are covered under the provisions of the Volunteer Firemen's Benefit Law in the event of injury or death. You also ask whether it is proper to use a piece of fire apparatus to transport the body of a deceased member or former member of your fire department for burial.

We assume that your fire department was organized and is operated under the provisions of Town Law Article 11 (§§ 170-189).

Volunteer Firemen's Benefit Law § 5 subdivision 1 lists the duties and activities in relation to which benefits are paid and provided by that statute. The only possible duty or activity so provided in section 5 subdivision 1 which could be applicable to attendance at funerals is paragraph e, which provides as follows:

"e. While, within the state, any adjoining state or in Canada and pursuant to orders or authorization, attending or participating in any drill, parade, inspection or review in which his fire department, fire company, or any unit thereof, is engaged, including necessary travel directly connected therewith."

Volunteer Firemen's Benefit Law § 5 subdivision 2 provides that benefits shall not be paid and provided pursuant to that statute in instances which are then listed. One of the instances listed in paragraph b thereof, is as follows:

"b. Practice for and participation in any recreational, social, or fund raising activity other than a fund raising activity for which coverage is provided under paragraph m of subdivision one of this section."

In our opinion, attendance by a member of a fire department at the funeral of a member or a former member of that fire department or a member of another fire department does not constitute attending or participating in a drill, parade, inspection, or review in which his fire department is engaged but on the contrary it does constitute participation in a social activity as such term is used to connote time spent or taken in the company of people having a similar interest in an activity participated in by members of organized society.

In our opinion, members of your fire department are not covered by the provisions of the Volunteer Firemen's Benefit Law when attending a funeral of a member or former member of your fire department or a member of another fire department; this is the case whether such attendance is pursuant to orders of or permission from the chief or the fire district commissioners.

We find no specific statutory authorization either in Town Law § 176 or elsewhere for use of fire department apparatus to transport the body of a deceased fireman or former fireman for a burial except as such use might be construed to be a public drill, parade, inspection, or review of the fire district, fire department or any fire company or other unit thereof. We have reservations as to whether such use of apparatus would be construed by a court as having been contemplated by the Legislature in the enactment of the applicable legislative framework. In the event a court finds that such use was not contemplated by the legislation then the immunity statute (General Municipal Law § 205-b) would not come into operation, the Volunteer Firemen's Benefit Law would not provide protection for any member who might be injured or killed participating in that activity and personal liability might well be asserted, perhaps successfully, against participants, officers authorizing participation and the Board of Fire Commissioners.