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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 - 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.
]]]] 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".
]]]] 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
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