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[Utah Code Table of Contents]
[TITLE 63. Table of Contents]
63-30-1 Short title.
This act shall be known and may be cited as the "Utah
Governmental Immunity Act."
1965
63-30-2 Definitions.
As used in this chapter:
(1) "Claim" means any claim or cause of action for money or damages against a governmental entity or against an employee.
(2) (a) "Employee" includes a governmental entity's officers, employees, servants, trustees, commissioners, members of a governing body, members of a board, members of a commission, or members of an advisory body, officers and employees in accordance with Section 67-5b-104 , student teachers holding a letter of authorization in accordance with Sections 53A-6-103 and 53A-6-104 , educational aides, students engaged in providing services to members of the public in the course of an approved medical, nursing, or other professional health care clinical training program, volunteers, and tutors, but does not include an independent contractor.
(b) "Employee" includes all of the positions identified in Subsection (2)(a), whether or not the individual holding that position receives compensation.
(3) "Governmental entity" means the state and its political subdivisions as defined in this chapter.
(4) (a) "Governmental function" means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.
(b) A "governmental function" may be performed by any department, agency, employee, agent, or officer of a governmental entity.
(5) "Injury" means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent.
(6) "Personal injury" means an injury of any kind other than property damage.
(7) "Political subdivision" means any county, city, town, school district, public transit district, redevelopment agency, special improvement or taxing district, or other governmental subdivision or public corporation.
(8) "Property damage" means injury to, or loss of, any right, title, estate, or interest in real or personal property.
(9) "State" means the state of Utah, and includes any
office, department, agency, authority, commission, board,
institution, hospital, college, university, or other instrumentality
of the state.
2000
63-30-3 Immunity of governmental entities from suit.
(1) Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility, and from an approved medical, nursing, or other professional health care clinical training program conducted in either public or private facilities.
(2) Subsections (2)(a) through (c) are unique or essential core governmental functions and, notwithstanding the waiver of immunity provisions of Section 63-30-10 , governmental entities, political subdivisions, and their officers and employees are immune from suit for any injury or damage resulting from the implementation of or the failure to:
(a) implement measures to control the causes of epidemic and communicable diseases and other conditions significantly affecting the public health or necessary to protect the public health as set out in Title 26A, Chapter 1, Local Health Departments;
(b) investigate and control suspected bioterrorism and disease as set out in Title 26, Chapter 23b, Detection of Public Health Emergencies Act; and
(c) respond to a national, state, or local emergency, a public health emergency as defined in Section 26-23b-102 , or a declaration by the President of the United States or other federal official requesting public health-related activities.
(3) (a) For the purposes of this chapter only, the following state medical programs and services performed at a state-owned university hospital are unique or essential to the core of governmental activity in this state and are considered to be governmental functions:
(i) care of a patient referred by another hospital or physician because of the high risk nature of the patient's medical condition;
(ii) high risk care or procedures available in Utah only at a state-owned university hospital or provided in Utah only by physicians employed at a state-owned university acting in the scope of their employment;
(iii) care of patients who cannot receive appropriate medical care or treatment at another medical facility in Utah; and
(iv) any other service or procedure performed at a state-owned university hospital or by physicians employed at a state-owned university acting in the scope of their employment that a court finds is unique or essential to the core of governmental activity in this state.
(b) If any claim under this Subsection (3) exceeds the limits established in Section 63-30-34 , the claimant may submit the excess claim to the Board of Examiners and the Legislature under Title 63, Chapter 6.
(4) The management of flood waters and other natural disasters and the construction, repair, and operation of flood and storm systems by governmental entities are considered to be governmental functions, and governmental entities and their officers and employees are immune from suit for any injury or damage resulting from those activities.
(5) Officers and employees of a Children's Justice Center
are immune from suit for any injury which results from their
joint intergovernmental functions at a center created in
Title 62A, Chapter 4a, Child and Family Services.
2003
63-30-4 Act provisions not construed as admission or denial of liability - Effect of waiver of immunity - Exclusive remedy - Joinder of employee - Limitations on personal liability.
(1) (a) Nothing contained in this chapter, unless specifically provided, may be construed as an admission or denial of liability or responsibility by or for governmental entities or their employees.
(b) If immunity from suit is waived by this chapter, consent to be sued is granted, and liability of the entity shall be determined as if the entity were a private person.
(c) No cause of action or basis of liability is created by any waiver of immunity in this chapter, nor may any provision of this chapter be construed as imposing strict liability or absolute liability.
(2) Nothing in this chapter may be construed as adversely affecting any immunity from suit that a governmental entity or employee may otherwise assert under state or federal law.
(3) (a) Except as provided in Subsection (3)(b), an action under this chapter against a governmental entity or its employee for an injury caused by an act or omission that occurs during the performance of the employee's duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.
(b) A plaintiff may not bring or pursue any other civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless:
(i) the employee acted or failed to act through fraud or malice;
(ii) the injury or damage resulted from the conditions set forth in Subsection 63-30-36 (3)(c); or
(iii) in a judicial or administrative proceeding the employee intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry under this section.
(4) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that:
(a) the employee acted or failed to act due to fraud or malice;
(b) the injury or damage resulted from the conditions set forth in Subsection 63-30-36 (3)(c); or
(c) in a judicial or administrative proceeding the employee
intentionally or knowingly gave, upon a lawful oath or in
any form allowed by law as a substitute for an oath, false
testimony material to the issue or matter of inquiry under
this section.
2002
63-30-5 Waiver of immunity as to contractual obligations.
(1) Immunity from suit of all governmental entities is waived as to any contractual obligation. Actions arising out of contractual rights or obligations shall not be subject to the requirements of Sections 63-30-11 , 63-30-12 , 63-30-13 , 63-30-14 , 63-30-15 , or 63-30-19 .
(2) Notwithstanding Subsection (1), the Division of Water
Resources is not liable for failure to deliver water from
a reservoir or associated facility authorized by Title 73,
Chapter 26, Bear River Development Act, if the failure to
deliver the contractual amount of water is due to drought,
other natural condition, or safety condition that causes
a deficiency in the amount of available water.
1991
63-30-6 Waiver of immunity as to actions involving property.
Immunity from suit of all governmental entities is waived
for the recovery of any property real or personal or for
the possession thereof or to quiet title thereto, or to foreclose
mortgages or other liens thereon or to determine any adverse
claim thereon, or secure any adjudication touching any mortgage
or other lien said entity may have or claim on the property
involved.
1965
63-30-7 Waiver of immunity for negligent damage, destruction or loss of seized property.
Immunity from suit of all governmental entities is waived
as to any claim based on the negligent destruction, damage
or loss of goods, merchandise or other property while in
the possession of any officer or agency of state or local
government, including law enforcement officers, if the property
was seized for the purpose of forfeiture under any provision
of state law.
2000
63-30-8 Waiver of immunity for injury caused by defective, unsafe, or dangerous condition of highways, bridges, or other structures.
Unless the injury arises out of one or more of the exceptions
to waiver set forth in Section
63-30-10
, immunity from suit of all governmental entities
is waived for any injury caused by a defective, unsafe, or
dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or
other structure located on them.
1991
63-30-9 Waiver of immunity for injury from dangerous or defective public building, structure, or other public improvement - Exception.
Unless the injury arises out of one or more of the exceptions
to waiver set forth in Section
63-30-10
, immunity from suit of all governmental entities
is waived for any injury caused from a dangerous or defective
condition of any public building, structure, dam, reservoir,
or other public improvement.
1991
63-30-10 Waiver of immunity for injury caused by negligent act or omission of employee - Exceptions.
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:
(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused;
(2) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation of civil rights;
(3) the issuance, denial, suspension, or revocation of or by the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization;
(4) a failure to make an inspection or by making an inadequate or negligent inspection;
(5) the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause;
(6) a misrepresentation by an employee whether or not it is negligent or intentional;
(7) riots, unlawful assemblies, public demonstrations, mob violence, and civil disturbances;
(8) the collection of and assessment of taxes;
(9) the activities of the Utah National Guard;
(10) the incarceration of any person in any state prison, county or city jail, or other place of legal confinement;
(11) any natural condition on publicly owned or controlled lands, any condition existing in connection with an abandoned mine or mining operation, or any activity authorized by the School and Institutional Trust Lands Administration or the Division of Forestry, Fire and State Lands;
(12) research or implementation of cloud management or seeding for the clearing of fog;
(13) the management of flood waters, earthquakes, or natural disasters;
(14) the construction, repair, or operation of flood or storm systems;
(15) the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14 ;
(16) a latent dangerous or latent defective condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them;
(17) a latent dangerous or latent defective condition of any public building, structure, dam, reservoir, or other public improvement;
(18) the activities of:
(a) providing emergency medical assistance;
(b) fighting fire;
(c) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(d) emergency evacuations;
(e) transporting or removing injured persons to a place where emergency medical assistance can be rendered or where the person can be transported by a licensed ambulance service; or
(f) intervening during dam emergencies; or
(19) the exercise or performance or the failure to exercise
or perform any function pursuant to Title 73, Chapter 5a,
Dam Safety, or Title 73, Chapter 10, Board of Water Resources
- Division of Water Resources, which immunity is in addition
to all other immunities granted by law.
2001
63-30-10.5 Waiver of immunity for taking private property without compensation.
(1) As provided by Article I, Section 22 of the Utah Constitution, immunity from suit of all governmental entities is waived for the recovery of compensation from the governmental entity when the governmental entity has taken or damaged private property for public uses without just compensation.
(2) Compensation and damages shall be assessed according
to the requirements of Title 78, Chapter 34, Eminent Domain.
1991
63-30-10.6 Attorneys' fees for records requests.
(1) Immunity from suit of all governmental entities is waived for recovery of attorneys' fees under Sections 63-2-405 and 63-2-802 .
Notwithstanding Section 63-30-11 :
(a) a notice of claim for attorneys' fees under Subsection (1) may be filed contemporaneously with a petition for review under Section 63-2-404 ; and
(b) Sections 63-30-14 and 63-30-19 shall not apply.
(2) Any other claim under this chapter that is related
to a claim for attorneys' fees under Subsection (1) may be
brought contemporaneously with the claim for attorneys' fees
or in a subsequent action.
1992
63-30-11 Claim for injury - Notice - Contents - Service - Legal disability - Appointment of guardian ad litem.
(1) A claim arises when the statute of limitations that would apply if the claim were against a private person begins to run.
(2) Any person having a claim for injury against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority shall file a written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental.
(3) (a) The notice of claim shall set forth:
(i) a brief statement of the facts;
(ii) the nature of the claim asserted; and
(iii) the damages incurred by the claimant so far as they are known.
(b) The notice of claim shall be:
(i) signed by the person making the claim or that person's agent, attorney, parent, or legal guardian; and
(ii) directed and delivered to:
(A) the city or town recorder, when the claim is against an incorporated city or town;
(B) the county clerk, when the claim is against a county;
(C) the superintendent or business administrator of the board, when the claim is against a school district or board of education;
(D) the president or secretary of the board, when the claim is against a special district;
(E) the attorney general, when the claim is against the State of Utah; or
(F) a member of the governing board, the executive director, or executive secretary, when the claim is against any other public board, commission, or body.
(4) (a) If the claimant is under the age of majority, or mentally incompetent and without a legal guardian at the time the claim arises, the claimant may apply to the court to extend the time for service of notice of claim.
(b) (i) After hearing and notice to the governmental entity, the court may extend the time for service of notice of claim.
(ii) The court may not grant an extension that exceeds the applicable statute of limitations.
(c) In determining whether or not to grant an extension, the court shall consider whether the delay in serving the notice of claim will substantially prejudice the governmental entity in maintaining its defense on the merits.
(d) (i) If an injury that may reasonably be expected to result in a claim against a governmental entity is sustained by a potential claimant described in Subsection (4)(a), that government entity may file a request with the court for the appointment of a guardian ad litem for the potential claimant.
(ii) If a guardian ad litem is appointed under this Subsection
(4)(d), the time for filing a claim under Sections
63-30-12
and
63-30-13
begins when the order appointing the guardian
is issued.
2000
63-30-12 Claim against state or its employee - Time for filing notice.
A claim against the state, or against its employee for
an act or omission occurring during the performance of the
employee's duties, within the scope of employment, or under
color of authority, is barred unless notice of claim is filed
with the attorney general within one year after the claim
arises, or before the expiration of any extension of time
granted under Section
63-30-11
, regardless of whether or not the function
giving rise to the claim is characterized as governmental.
1998
63-30-13 Claim against political subdivision or its employee - Time for filing notice.
A claim against a political subdivision, or against its
employee for an act or omission occurring during the performance
of the employee's duties, within the scope of employment,
or under color of authority, is barred unless notice of claim
is filed with the governing body of the political subdivision
according to the requirements of Section
63-30-11
within one year after the claim arises, or
before the expiration of any extension of time granted under
Section
63-30-11
, regardless of whether or not the function
giving rise to the claim is characterized as governmental.
1998
63-30-14 Claim for injury - Approval or denial by governmental entity or insurance carrier within ninety days.
Within ninety days of the filing of a claim the governmental
entity or its insurance carrier shall act thereon and notify
the claimant in writing of its approval or denial. A claim
shall be deemed to have been denied if at the end of the
ninety-day period the governmental entity or its insurance
carrier has failed to approve or deny the claim.
1965
63-30-15 Denial of claim for injury - Authority and time for filing action against governmental entity.
(1) If the claim is denied, a claimant may institute an action in the district court against the governmental entity or an employee of the entity.
(2) The claimant shall begin the action within one year
after denial of the claim or within one year after the denial
period specified in this chapter has expired, regardless
of whether or not the function giving rise to the claim is
characterized as governmental.
1987
63-30-16 Jurisdiction of district courts over actions - Application of Rules of Civil Procedure.
(1) The district courts shall have exclusive original jurisdiction over any action brought under this chapter.
(2) An action brought under this chapter may not be tried
as a small claims action and shall be governed by the Utah
Rules of Civil Procedure to the extent they are consistent
with this chapter.
1999
63-30-17 Venue of actions.
Actions against the state may be brought in the county
in which the claim arose or in Salt Lake County. Actions
against a county may be brought in the county in which the
claim arose, or in the defendant county, or, upon leave granted
by a district court judge of the defendant county, in any
county contiguous to the defendant county. Leave may be granted
ex parte. Actions against all other political subdivisions
including cities and towns, shall be brought in the county
in which the political subdivision is located or in the county
in which the claim arose.
1983
63-30-18 Compromise and settlement of actions.
(1) A political subdivision, after conferring with its legal officer or other legal counsel if it does not have a legal officer, may compromise and settle any action as to the damages or other relief sought.
(2) The risk manager in the Department of Administrative Services may:
(a) compromise and settle any claim of $25,000 or less in damages filed against the state for which the Risk Management Fund may be liable;
(b) with the concurrence of the attorney general or his representative and the executive director of the Department of Administrative Services, compromise and settle any claim of $25,000 to $100,000 in damages for which the Risk Management Fund may be liable; and
(3) The risk manager shall comply with procedures and
requirements of Title 63, Chapter 38b, in compromising and
settling any claim of $100,000 or more.
1995
63-30-19 Undertaking required of plaintiff in action.
At the time of filing the action the plaintiff shall file
an undertaking in a sum fixed by the court, but in no case
less than the sum of $300, conditioned upon payment by the
plaintiff of taxable costs incurred by the governmental entity
in the action if the plaintiff fails to prosecute the action
or fails to recover judgment.
1965
63-30-20 Judgment against governmental entity bars action against employee.
Judgment against a governmental entity in an action brought
under this act shall constitute a complete bar to any action
by the claimant, by reason of the same subject matter, against
the employee whose act or omission gave rise to the claim.
1965
63-30-22 Exemplary or punitive damages prohibited - Governmental entity exempt from execution, attachment, or garnishment.
(1) (a) No judgment may be rendered against the governmental entity for exemplary or punitive damages.
(b) The state shall pay any judgment or portion of any judgment entered against a state employee in the employee's personal capacity even if the judgment is for or includes exemplary or punitive damages if the state would be required to pay the judgment under Section 63-30-36 or 63-30-37 .
(2) Execution, attachment, or garnishment may not issue
against a governmental entity.
1991
63-30-23 Payment of claim or judgment against state - Presentment for payment.
Any claim approved by the state as defined by Subsection
63-30-2
(1) or any final judgment obtained against
the state shall be presented to the state risk manager, or
to the office, agency, institution or other instrumentality
involved for payment, if payment by said instrumentality
is otherwise permitted by law. If such payment is not authorized
by law then said judgment or claim shall be presented to
the board of examiners and the board shall proceed as provided
in Section
63-6-10
.
1987
63-30-24 Payment of claim or judgment against political subdivision - Procedure by governing body.
Any claim approved by a political subdivision or any final
judgment obtained against a political subdivision shall be
submitted to the governing body thereof to be paid forthwith
from the general funds of said political subdivision unless
said funds are appropriated to some other use or restricted
by law or contract for other purposes.
1965
63-30-25 Payment of claim or judgment against political subdivision - Installment payments.
If the subdivision is unable to pay the claim or award
during the current fiscal year it may pay the claim or award
in not more than ten ensuing annual installments of equal
size or in such other installments as are agreeable to the
claimant.
1965
63-30-26 Reserve funds for payment of claims or purchase of insurance created by political subdivisions.
Any political subdivision may create and maintain a reserve
fund or may jointly with one or more other political subdivisions
make contributions to a joint reserve fund, for the purpose
of making payment of claims against the co-operating subdivisions
when they become payable pursuant to this chapter, or for
the purpose of purchasing liability insurance to protect
the co-operating subdivisions from any or all risks created
by this chapter.
1983
63-30-27 Tax levy by political subdivisions for payment of claims, judgments, or insurance premiums.
(1) Notwithstanding any provision of law to the contrary, all political subdivisions may levy an annual property tax sufficient to pay the following:
(a) any claim;
(b) any settlement;
(c) any judgment, including any judgment against an elected official or employee of any political subdivision, including peace officers, based upon a claim for punitive damages but the authority of a political subdivision for the payment of any judgment for punitive damages is limited in any individual case to $10,000;
(d) the costs to defend against any claim, settlement, or judgment; or
(e) the establishment and maintenance of a reserve fund for the payment of claims, settlements, or judgments as may be reasonably anticipated.
(2) It is legislative intent that the payments authorized
for punitive damage judgments or to pay the premium for such
insurance as authorized is money spent for a public purpose
within the meaning of this section and Article XIII, Sec.
5, Utah Constitution, even though as a result of the levy
the maximum levy as otherwise restricted by law is exceeded.
No levy under this section may exceed .0001 per dollar of
taxable value of taxable property. The revenues derived from
this levy may not be used for any other purpose than those
stipulated in this section.
1988
63-30-28 Liability insurance - Purchase of insurance or self-insurance by governmental entity authorized - Establishment of trust accounts for self-insurance.
(1) Any governmental entity within the state may purchase commercial insurance, self-insure, or self-insure and purchase excess commercial insurance in excess of the statutory limits of this chapter against any risk created or recognized by this chapter or any action for which a governmental entity or its employee may be held liable.
(2) (a) In addition to any other reasonable means of self-insurance, a governmental entity may self-insure with respect to specified classes of claims by establishing a trust account under the management of an independent private trustee having authority with respect to claims of that character to expend both principal and earnings of the trust account solely to pay the costs of investigation, discovery, and other pretrial and litigation expenses including attorneys' fees, and to pay all sums for which the governmental entity may be adjudged liable or for which a compromise settlement may be agreed upon.
(b) The monies and interest earned on said trust fund shall be subject to investment pursuant to Title 51, Chapter 7, State Money Management Act of 1974, and shall be subject to audit by the state auditor.
(3) Notwithstanding any law to the contrary, the trust
agreement between the governmental entity and the trustee
may authorize the trustee to employ counsel to defend actions
against the entity and its employees and to protect and safeguard
the assets of the trust, to provide for claims investigation
and adjustment services, to employ expert witnesses and consultants,
and to provide such other services and functions necessary
and proper to carry out the purposes of the trust.
1991
63-30-29.5 Liability insurance - Government vehicles operated by employees outside scope of employment.
A governmental entity that owns vehicles driven by employees
of the governmental entity with the express or implied consent
of the entity, but which, at the time liability is incurred
as a result of an automobile accident, is not being driven
and used within the course and scope of the driver's employment
is considered to provide the driver with the insurance coverage
required by Title 41, Chapter 12a. However, the liability
coverages considered provided are the minimum limits under
Section
31A-22-304
.
1985
63-30-31 Liability insurance - Construction of policy not in compliance with act.
Any insurance policy, rider or endorsement hereafter issued
and purchased to insure against any risk which may arise
as a result of the application of this chapter, which contains
any condition or provision not in compliance with the requirements
of the chapter, shall not be rendered invalid thereby, but
shall be construed and applied in accordance with such conditions
and provisions as would have applied had such policy, rider
or endorsement been in full compliance with this chapter,
provided the policy is otherwise valid.
1983
63-30-32 Liability insurance - Methods for purchase or renewal.
No contract or policy of insurance may be purchased or
renewed under this chapter except upon public bid to be let
to the lowest and best bidder; except that the purchase or
renewal of insurance by the state shall be conducted in accordance
with the provisions of Sections
63-56-1
through
63-56-73
.
1983
63-30-33 Liability insurance - Insurance for employees authorized - No right to indemnification or contribution from governmental agency.
(1) (a) A governmental entity may insure any or all of its employees against liability, in whole or in part, for injury or damage resulting from an act or omission occurring during the performance of an employee's duties, within the scope of employment, or under color of authority, regardless of whether or not that entity is immune from suit for that act or omission.
(b) Any expenditure for that insurance is for a public purpose.
(c) Under any contract or policy of insurance providing coverage on behalf of a governmental entity or employee for any liability defined by this section, regardless of the source of funding for the coverage, the insurer has no right to indemnification or contribution from the governmental entity or its employee for any loss or liability covered by the contract or policy.
(2) Any surety covering a governmental entity or its employee
under any faithful performance surety bond has no right to
indemnification or contribution from the governmental entity
or its employee for any loss covered by that bond based on
any act or omission for which the governmental entity would
be obligated to defend or indemnify under the provisions
of Section
63-30-36
.
1991
63-30-34 Limitation of judgments against governmental entity or employee - Insurance coverage exception - Process for adjustment of limits.
(1) (a) Except as provided in Subsections (2) and (3), if a judgment for damages for personal injury against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $500,000 for one person in any one occurrence, or $1,000,000 for two or more persons in any one occurrence, the court shall reduce the judgment to that amount.
(b) A court may not award judgment of more than $500,000 for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental.
(c) Except as provided in Subsection (2), if a judgment for property damage against a governmental entity, or an employee whom a governmental entity has a duty to indemnify, exceeds $200,000 in any one occurrence, the court shall reduce the judgment to that amount, regardless of whether or not the function giving rise to the damage is characterized as governmental.
(2) The damage limits established in this section do not apply to damages awarded as compensation when a governmental entity has taken or damaged private property for public use without just compensation.
(3) The limitations of judgments established in Subsection (1) shall be adjusted according to the methodology set forth in Subsection (4).
(4) (a) Each year, the risk manager shall:
(i) calculate the consumer price index as provided in Sections 1(f)(4) and 1(f)(5), Internal Revenue Code;
(ii) calculate the increase or decrease in the limitation of judgment amounts established in this section as a percentage equal to the percentage difference between the consumer price index for the preceding calendar year and the consumer price index for calendar year 1999; and
(iii) after making an increase or decrease under Subsection (4)(a)(ii), round up the limitation of judgment amounts established in Subsection (1) to the nearest $100.
(b) Each even numbered year, the risk manager shall make rules, which become effective no later than July 1, that establish the new limitation of judgment amounts.
(c) Adjustments made by the risk manager to the limitation
of judgment amounts established by this section have prospective
effect only from the date the rules establishing the new
limitation of judgment take effect and those adjusted limitations
of judgment apply only to claims for injuries or losses that
occur after the effective date of the rules that establish
those new limitations of judgement.
2000
63-30-35 Expenses of attorney general, general counsel for state judiciary, and general counsel for the Legislature in representing the state, its branches, members, or employees.
(1) (a) After consultation with appropriate state agencies, the state risk manager shall provide a comprehensive liability plan, with limits not lower than those set forth in Section 63-30-34 , that will protect the state and its indemnified employees from claims and liability.
(b) The risk manager shall establish deductibles and maximum limits of coverage in consultation with the executive director of the Department of Administrative Services.
(2) (a) The Office of the Attorney General has primary responsibility to provide legal representation to the judicial, executive, and legislative branches of state government in cases where Risk Management Fund coverage applies.
(b) When the attorney general has primary responsibility to provide legal representation to the judicial or legislative branches, the attorney general shall consult with the general counsel for the state judiciary and with the general counsel for the Legislature, to solicit their assistance in defending their respective branch, and in determining strategy and making decisions concerning the disposition of those claims. The decision for settlement of monetary claims in those cases, however, lies with the attorney general and the state risk manager.
(3) (a) If the Judicial Council, after consultation with the general counsel for the state judiciary, determines that the Office of the Attorney General cannot adequately defend the state judiciary, its members, or employees because of a conflict of interest, separation of powers concerns, or other political or legal differences, the Judicial Council may direct its general counsel to separately represent and defend it.
(b) If the general counsel for the state judiciary undertakes independent legal representation of the state judiciary, its members, or employees, the general counsel shall notify the state risk manager and the attorney general in writing before undertaking that representation.
(c) If the state judiciary elects to be represented by its own counsel under this section, the decision for settlement of claims against the state judiciary, its members, or employees, where Risk Management Fund coverage applies, lies with the general counsel for the state judiciary and the state risk manager.
(4) (a) If the Legislative Management Committee, after consultation with general counsel for the Legislature, determines that the Office of the Attorney General cannot adequately defend the legislative branch, its members, or employees because of a conflict of interest, separation of powers concerns, or other political or legal differences, the Legislative Management Committee may direct its general counsel to separately represent and defend it.
(b) If the general counsel for the Legislature undertakes independent legal representation of the Legislature, its members, or employees, the general counsel shall notify the state risk manager and the attorney general in writing before undertaking that representation.
(c) If the legislative branch elects to be represented by its own counsel under this section, the decision for settlement of claims against the legislative branch, its members, or employees, where Risk Management Fund coverage applies, lies with the general counsel for the Legislature and the state risk manager.
(5) (a) Notwithstanding the provisions of Section 67-5-3 or any other provision of this code, the attorney general, the general counsel for the state judiciary, and the general counsel for the Legislature may bill the Department of Administrative Services for all costs and legal fees expended by their respective offices, including attorneys' and secretarial salaries, in representing the state or any indemnified employee against any claim for which the Risk Management Fund may be liable and in advising state agencies and employees regarding any of those claims.
(b) The risk manager shall draw funds from the Risk Management
Fund for this purpose.
1990
63-30-36 Defending government employee - Request - Cooperation - Payment of judgment.
(1) Except as provided in Subsections (2) and (3), a governmental entity shall defend any action brought against its employee arising from an act or omission occurring:
(a) during the performance of the employee's duties;
(b) within the scope of the employee's employment; or
(c) under color of authority.
(2) (a) Before a governmental entity may defend its employee against a claim, the employee shall make a written request to the governmental entity to defend him:
(i) within ten days after service of process upon him; or
(ii) within a longer period that would not prejudice the governmental entity in maintaining a defense on his behalf; or
(iii) within a period that would not conflict with notice requirements imposed on the entity in connection with insurance carried by the entity relating to the risk involved.
(b) If the employee fails to make a request, or fails to reasonably cooperate in the defense, the governmental entity need not defend or continue to defend the employee, nor pay any judgment, compromise, or settlement against the employee in respect to the claim.
(3) The governmental entity may decline to defend, or subject to any court rule or order, decline to continue to defend, an action against an employee if it determines:
(a) that the act or omission in question did not occur:
(i) during the performance of the employee's duties;
(ii) within the scope of his employment; or
(iii) under color of authority;
(b) that the injury or damage resulted from the fraud or malice of the employee; or
(c) that the injury or damage on which the claim was based resulted from:
(i) the employee driving a vehicle, or being in actual physical control of a vehicle:
(A) with a blood alcohol content equal to or greater by weight than the established legal limit;
(B) while under the influence of alcohol or any drug to a degree that rendered the person incapable of safely driving the vehicle; or
(C) while under the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely driving the vehicle; or
(ii) the employee being physically or mentally impaired so as to be unable to reasonably perform his job function because of the use of alcohol, because of the nonprescribed use of a controlled substance as defined in Section 58-37-4 , or because of the combined influence of alcohol and a nonprescribed controlled substance as defined by Section 58-37-4 ; or
(d) that in a judicial or administrative proceeding the employee intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony to the issue or matter of inquiry under this section.
(4) (a) Within ten days of receiving a written request to defend an employee, the governmental entity shall inform the employee whether or not it shall provide a defense, and, if it refuses to provide a defense, the basis for its refusal.
(b) A refusal by the entity to provide a defense is not admissible for any purpose in the action in which the employee is a defendant.
(5) Except as provided in Subsection (6), if a governmental entity conducts the defense of an employee, the governmental entity shall pay any judgment based upon the claim.
(6) A governmental entity may conduct the defense of an employee under a reservation of rights under which the governmental entity reserves the right not to pay a judgment, if the conditions set forth in Subsection (3) are established.
(7) (a) Nothing in this section or Section 63-30-37 affects the obligation of a governmental entity to provide insurance coverage according to the requirements of Subsection 41-12a-301 (3) and Section 63-30-29.5 .
(b) When a governmental entity declines to defend, or
declines to continue to defend, an action against its employee
under the conditions set forth in Subsection (3), it shall
still provide coverage up to the amount specified in Sections
31A-22-304
and
63-30-29.5
.
2002
63-30-37 Recovery of judgment paid and defense costs by government employee.
(1) Subject to Subsection (2), if an employee pays a judgment entered against him, or any portion of it, which the governmental entity is required to pay under Section 63-30-36 , the employee may recover from the governmental entity the amount of the payment and the reasonable costs incurred in his defense.
(2) If a governmental entity does not conduct the defense of an employee against a claim, or conducts the defense under an agreement as provided in Subsection 63-30-36 (6), the employee may recover from the governmental entity under Subsection (1) if:
(a) the employee establishes that the act or omission upon which the judgment is based occurred during the performance of his duties, within the scope of his employment, or under color of authority, and that he conducted the defense in good faith; and
(b) the governmental entity does not establish that the injury or damage resulted from:
(i) the fraud or malice of the employee;
(ii) the employee driving a vehicle, or being in actual physical control of a vehicle:
(A) with a blood alcohol content equal to or greater by weight than the established legal limit;
(B) while under the influence of alcohol or any drug to a degree that rendered the person incapable of safely driving the vehicle;
(C) while under the combined influence of alcohol and any drug to a degree that rendered the person incapable of safely driving the vehicle; or
(iii) the employee being physically or mentally impaired
so as to be unable to reasonably perform his job function
because of the use of alcohol, because of the nonprescribed
use of a controlled substance as defined in Section
58-37-4
, or because of the combined use of alcohol
and a nonprescribed controlled substance as defined in Section
58-37-4
.
1987
63-30-38 Indemnification of governmental entity by employee not required.
If a governmental entity pays all or part of a judgment
based on or a compromise or settlement of a claim against
the governmental entity or an employee, the employee may
not be required to indemnify the governmental entity for
the payment.
1983
