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H0049aa....................................................by STATE AFFAIRS TORT CLAIMS - Amends existing law relating to tort claims to revise the definition of "employee"; to provide that a governmental entity shall provide a defense and indemnification against any claims brought against an employee in the employee's individual capacity when the claims are related to the course and scope of employment; and to provide for the right to a hearing following the dismissal of a claim. 01/25 House intro - 1st rdg - to printing 01/26 Rpt prt - to St Aff 02/09 Rpt out - to Gen Ord 02/16 Rpt out amen - to engros 02/17 Rpt engros - 1st rdg - to 2nd rdg as amen 02/18 2nd rdg - to 3rd rdg as amen 02/23 3rd rdg as amen - PASSED - 66-4-0 AYES -- Anderson, Andrus, Barraclough, Bastian, Bayer, Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Bradford, Cannon, Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest, Henderson, Jaquet, Jones, Kemp, Lake, LeFavour, Loertscher, Martinez, Mathews, McGeachin, Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sayler, Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood, Mr. Speaker NAYS -- Barrett, Ellsworth, McKague, Sali Absent and excused -- None Floor Sponsor - Deal Title apvd - to Senate 02/24 Senate intro - 1st rdg - to St Aff 03/21 Rpt out - rec d/p - to 2nd rdg 03/22 2nd rdg - to 3rd rdg 03/23 3rd rdg - PASSED - 31-1-2, 1 vacancy AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett, Burtenshaw, Cameron, Coiner, Corder, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough, Langhorst, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce, Richardson, Schroeder, Stegner, Stennett, Werk, Williams NAYS -- Sweet Absent and excused -- Compton, Little, (District 21 seat vacant) Floor Sponsor - Davis Title apvd - to House 03/24 To enrol 03/28 Rpt enrol - Sp signed 03/29 Pres signed 03/30 To Governor 04/05 Governor signed Session Law Chapter 260 Effective: 07/01/05
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 49 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO TORT CLAIMS; AMENDING SECTION 6-902, IDAHO CODE, TO REVISE THE 3 DEFINITION OF "EMPLOYEE"; AND AMENDING SECTION 6-903, IDAHO CODE, TO PRO- 4 VIDE THAT A GOVERNMENTAL ENTITY SHALL PROVIDE A DEFENSE AGAINST ANY CLAIMS 5 BROUGHT AGAINST AN EMPLOYEE IN THE EMPLOYEE'S INDIVIDUAL CAPACITY AND TO 6 PROVIDE FOR THE RIGHT TO A HEARING FOLLOWING THE DISMISSAL OF A CLAIM. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Section 6-902, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 6-902. DEFINITIONS. As used in this act: 11 1. "State" means the state of Idaho or any office, department, agency, 12 authority, commission, board, institution, hospital, college, university or 13 other instrumentality thereof. 14 2. "Political subdivision" means any county, city, municipal corporation, 15 health district, school district, irrigation district, an operating agent of 16 irrigation districts whose board consists of directors of its member dis- 17 tricts, special improvement or taxing district, or any other political subdi- 18 vision or public corporation. As used in this act, the terms "county" and 19 "city" also mean state licensed hospitals and attached nursing homes estab- 20 lished by counties pursuant to chapter 36, title 31, Idaho Code, or jointly by 21 cities and counties pursuant to chapter 37, title 31, Idaho Code. 22 3. "Governmental entity" means and includes the state and political sub- 23 divisions as herein defined. 24 4. "Employee" means an officer, board member, commissioner, executive, 25 employee, or servant of a governmental entity, including elected or appointed 26 officials, and persons acting on behalf of the governmental entity in any 27 official capacity, temporarily or permanently in the service of the governmen- 28 tal entity, whether with or without compensation, but the term employee shall 29 not mean a person or other legal entity while acting in the capacity of an 30 independent contractor under contract to the governmental entity to which this 31 act applies in the event of a claim. 32 5. "Bodily injury" means any bodily injury, sickness, disease or death 33 sustained by any person and caused by an occurrence. 34 6. "Property damage" means injury or destruction to tangible property 35 caused by an occurrence. 36 7. "Claim" means any written demand to recover money damages from a gov- 37 ernmental entity or its employee which any person is legally entitled to 38 recover under this act as compensation for the negligent or otherwise wrongful 39 act or omission of a governmental entity or its employee when acting within 40 the course or scope of his employment. 41 SECTION 2. That Section 6-903, Idaho Code, be, and the same is hereby 42 amended to read as follows: 2 1 6-903. LIABILITY OF GOVERNMENTAL ENTITIES -- DEFENSE OF EMPLOYEES. (a) 2 Except as otherwise provided in this act, every governmental entity is subject 3 to liability for money damages arising out of its negligent or otherwise 4 wrongful acts or omissions and those of its employees acting within the course 5 and scope of their employment or duties, whether arising out of a governmental 6 or proprietary function, where the governmental entity if a private person or 7 entity would be liable for money damages under the laws of the state of Idaho, 8 provided that the governmental entity is subject to liability only for the pro 9 rata share of the total damages awarded in favor of a claimant which is 10 attributable to the negligent or otherwise wrongful acts or omissions of the 11 governmental entity or its employees. 12 (b) (i) A governmental entity shall provide a defense to its employee, 13 including a defense against any claims brought against the employee in the 14 employee's individual capacity, and be responsible for the payment of any 15 judgment on any claim or civil lawsuit against an employee for money damages 16 arising out of any act or omission within the course and scope of his employ- 17 ment; provided that the governmental entity and its employee shall be subject 18 to liability only for the pro rata share of the total damages awarded in favor 19 of a claimant which is attributable to the act or omission of the employee; 20 (ii) provided further, that to the extent there is valid and collectible, 21 applicable insurance or any other right to defense or indemnification legally 22 available to and for the protection of an employee, while operating or using 23 an automobile, aircraft or other vehicle not owned or leased by the governmen- 24 tal entity and while acting within the course and scope of his/her employment 25 or duties, the governmental entity's duty hereunder to indemnify the employee 26 and/or defend any such claim or lawsuit arising out of the operation or use of 27 such personal automobile, aircraft or vehicle, shall be secondary to the obli- 28 gation of the insurer or indemnitor of such automobile, aircraft or vehicle, 29 whose obligation shall be primary; and (iii) provided further, this paragraph 30 shall not be construed to alter or relieve any such indemnitor or insurer of 31 any legal obligation to such employee or to any governmental entity 32 vicariously liable on account of or legally responsible for damages due to the 33 allegedly wrongful error, omissions, conduct, act or deed of such employee. 34 (c) The defense of its employee by the governmental entity shall be 35 undertaken whether the claim and civil lawsuit is brought in Idaho district 36 court under Idaho law or is brought in a United States court under federal 37 law. The governmental entity may refuse a defense or disavow and refuse to pay 38 any judgment for its employee if it is determined that the act or omission of 39 the employee was not within the course and scope of his employment or included 40 malice or criminal intent. 41 (d) A governmental entity shall not be entitled to contribution or indem- 42 nification, or reimbursement for legal fees and expenses from its employee 43 unless a court shall find that the act or omission of the employee was outside 44 the course and scope of his employment or included malice or criminal intent. 45 Any action by a governmental entity against its employee and any action by an 46 employee against the governmental entity for contribution, indemnification, or 47 necessary legal fees and expenses shall be tried to the court in the same 48 civil lawsuit brought on the claim against the governmental entity or its 49 employee. 50 (e) For the purposes of this act and not otherwise, it shall be a rebut- 51 table presumption that any act or omission of an employee within the time and 52 at the place of his employment is within the course and scope of his employ- 53 ment and without malice or criminal intent. 54 (f) Nothing in this act shall enlarge or otherwise adversely affect the 55 liability of an employee or a governmental entity. Any immunity or other bar 3 1 to a civil lawsuit under Idaho or federal law shall remain in effect. The fact 2 that a governmental entity may relieve an employee from all necessary legal 3 fees and expenses and any judgment arising from the civil lawsuit shall not 4 under any circumstances be communicated to the trier of fact in the civil law- 5 suit. 6 (g) When a claim asserted against an employee in the employee's individ- 7 ual capacity is dismissed by the court, the dismissed party shall have the 8 right to a hearing pursuant to the provisions of section 12-123, Idaho Code.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005Moved by Jones Seconded by Garrett IN THE HOUSE OF REPRESENTATIVES HOUSE AMENDMENT TO H.B. NO. 49 1 AMENDMENT TO SECTION 2 2 On page 2 of the printed bill, delete lines 13 and 14 and insert: "includ- 3 ing a defense and indemnification against any claims brought against the 4 employee in the employee's individual capacity when the claims are related to 5 the course and scope of employment, and be responsible for the payment of 6 any". 7 CORRECTION TO TITLE 8 On page 1, delete lines 4 and 5 and insert: "VIDE THAT A GOVERNMENTAL 9 ENTITY SHALL PROVIDE A DEFENSE AND INDEMNIFICATION AGAINST ANY CLAIMS BROUGHT 10 AGAINST AN EMPLOYEE IN THE EMPLOYEE'S INDIVIDUAL CAPACITY WHEN THE CLAIMS ARE 11 RELATED TO THE COURSE AND SCOPE OF EMPLOYMENT AND TO".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature First Regular Session - 2005IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 49, As Amended BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO TORT CLAIMS; AMENDING SECTION 6-902, IDAHO CODE, TO REVISE THE 3 DEFINITION OF "EMPLOYEE"; AND AMENDING SECTION 6-903, IDAHO CODE, TO PRO- 4 VIDE THAT A GOVERNMENTAL ENTITY SHALL PROVIDE A DEFENSE AND INDEMNIFICA- 5 TION AGAINST ANY CLAIMS BROUGHT AGAINST AN EMPLOYEE IN THE EMPLOYEE'S 6 INDIVIDUAL CAPACITY WHEN THE CLAIMS ARE RELATED TO THE COURSE AND SCOPE OF 7 EMPLOYMENT AND TO PROVIDE FOR THE RIGHT TO A HEARING FOLLOWING THE DIS- 8 MISSAL OF A CLAIM. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Section 6-902, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 6-902. DEFINITIONS. As used in this act: 13 1. "State" means the state of Idaho or any office, department, agency, 14 authority, commission, board, institution, hospital, college, university or 15 other instrumentality thereof. 16 2. "Political subdivision" means any county, city, municipal corporation, 17 health district, school district, irrigation district, an operating agent of 18 irrigation districts whose board consists of directors of its member dis- 19 tricts, special improvement or taxing district, or any other political subdi- 20 vision or public corporation. As used in this act, the terms "county" and 21 "city" also mean state licensed hospitals and attached nursing homes estab- 22 lished by counties pursuant to chapter 36, title 31, Idaho Code, or jointly by 23 cities and counties pursuant to chapter 37, title 31, Idaho Code. 24 3. "Governmental entity" means and includes the state and political sub- 25 divisions as herein defined. 26 4. "Employee" means an officer, board member, commissioner, executive, 27 employee, or servant of a governmental entity, including elected or appointed 28 officials, and persons acting on behalf of the governmental entity in any 29 official capacity, temporarily or permanently in the service of the governmen- 30 tal entity, whether with or without compensation, but the term employee shall 31 not mean a person or other legal entity while acting in the capacity of an 32 independent contractor under contract to the governmental entity to which this 33 act applies in the event of a claim. 34 5. "Bodily injury" means any bodily injury, sickness, disease or death 35 sustained by any person and caused by an occurrence. 36 6. "Property damage" means injury or destruction to tangible property 37 caused by an occurrence. 38 7. "Claim" means any written demand to recover money damages from a gov- 39 ernmental entity or its employee which any person is legally entitled to 40 recover under this act as compensation for the negligent or otherwise wrongful 41 act or omission of a governmental entity or its employee when acting within 42 the course or scope of his employment. 2 1 SECTION 2. That Section 6-903, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 6-903. LIABILITY OF GOVERNMENTAL ENTITIES -- DEFENSE OF EMPLOYEES. (a) 4 Except as otherwise provided in this act, every governmental entity is subject 5 to liability for money damages arising out of its negligent or otherwise 6 wrongful acts or omissions and those of its employees acting within the course 7 and scope of their employment or duties, whether arising out of a governmental 8 or proprietary function, where the governmental entity if a private person or 9 entity would be liable for money damages under the laws of the state of Idaho, 10 provided that the governmental entity is subject to liability only for the pro 11 rata share of the total damages awarded in favor of a claimant which is 12 attributable to the negligent or otherwise wrongful acts or omissions of the 13 governmental entity or its employees. 14 (b) (i) A governmental entity shall provide a defense to its employee, 15 including a defense and indemnification against any claims brought against the 16 employee in the employee's individual capacity when the claims are related to 17 the course and scope of employment, and be responsible for the payment of any 18 judgment on any claim or civil lawsuit against an employee for money damages 19 arising out of any act or omission within the course and scope of his employ- 20 ment; provided that the governmental entity and its employee shall be subject 21 to liability only for the pro rata share of the total damages awarded in favor 22 of a claimant which is attributable to the act or omission of the employee; 23 (ii) provided further, that to the extent there is valid and collectible, 24 applicable insurance or any other right to defense or indemnification legally 25 available to and for the protection of an employee, while operating or using 26 an automobile, aircraft or other vehicle not owned or leased by the governmen- 27 tal entity and while acting within the course and scope of his/her employment 28 or duties, the governmental entity's duty hereunder to indemnify the employee 29 and/or defend any such claim or lawsuit arising out of the operation or use of 30 such personal automobile, aircraft or vehicle, shall be secondary to the obli- 31 gation of the insurer or indemnitor of such automobile, aircraft or vehicle, 32 whose obligation shall be primary; and (iii) provided further, this paragraph 33 shall not be construed to alter or relieve any such indemnitor or insurer of 34 any legal obligation to such employee or to any governmental entity 35 vicariously liable on account of or legally responsible for damages due to the 36 allegedly wrongful error, omissions, conduct, act or deed of such employee. 37 (c) The defense of its employee by the governmental entity shall be 38 undertaken whether the claim and civil lawsuit is brought in Idaho district 39 court under Idaho law or is brought in a United States court under federal 40 law. The governmental entity may refuse a defense or disavow and refuse to pay 41 any judgment for its employee if it is determined that the act or omission of 42 the employee was not within the course and scope of his employment or included 43 malice or criminal intent. 44 (d) A governmental entity shall not be entitled to contribution or indem- 45 nification, or reimbursement for legal fees and expenses from its employee 46 unless a court shall find that the act or omission of the employee was outside 47 the course and scope of his employment or included malice or criminal intent. 48 Any action by a governmental entity against its employee and any action by an 49 employee against the governmental entity for contribution, indemnification, or 50 necessary legal fees and expenses shall be tried to the court in the same 51 civil lawsuit brought on the claim against the governmental entity or its 52 employee. 53 (e) For the purposes of this act and not otherwise, it shall be a rebut- 54 table presumption that any act or omission of an employee within the time and 3 1 at the place of his employment is within the course and scope of his employ- 2 ment and without malice or criminal intent. 3 (f) Nothing in this act shall enlarge or otherwise adversely affect the 4 liability of an employee or a governmental entity. Any immunity or other bar 5 to a civil lawsuit under Idaho or federal law shall remain in effect. The fact 6 that a governmental entity may relieve an employee from all necessary legal 7 fees and expenses and any judgment arising from the civil lawsuit shall not 8 under any circumstances be communicated to the trier of fact in the civil law- 9 suit. 10 (g) When a claim asserted against an employee in the employee's individ- 11 ual capacity is dismissed by the court, the dismissed party shall have the 12 right to a hearing pursuant to the provisions of section 12-123, Idaho Code.
STATEMENT OF PURPOSE RS 14668 This bill is to eliminate some current confusion over the scope of the state's responsibility to provide a legal defense to its employees when they are sued in their personal capacity for actions related to their job. The bill clarifies that the term employee includes board members and other executives who are entitled to the same legal defense as other employees of state agencies. It further provides that a simple allegation by a plaintiff in a lawsuit that an employee was acting outside the course and scope of their employment does not require that employee to hire a private attorney. Finally, it makes clear that people and attorneys who pursue frivolous allegations against people serving on boards and commissions of the State of Idaho are subject to sanctions by the court. FISCAL NOTE This bill will have no fiscal impact. Contact Name: Rep. Bill Deal Phone: 208-332-1000 STATEMENT OF PURPOSE/FISCAL NOTE H 49