2005 Legislation
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HOUSE BILL NO. 49 – Gov’t entity, tort claims, employee

HOUSE BILL NO. 49

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Bill Status



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

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN 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.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                                                     Moved 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".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN 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 / Fiscal Impact



                       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