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H.B. 28 Enrolled

                 

GOVERNMENTAL IMMUNITY AMENDMENTS

                 
2002 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Wayne A. Harper

                  This act amends the Utah Human Services Code and the Utah Governmental Immunity Act.
                  The act clarifies that there is no immunity to a governmental employee except as provided
                  in the Utah Governmental Immunity Act. The act clarifies provisions regarding the
                  exception to employee immunity for driving under the influence of alcohol. The act provides
                  an exception to the immunity of a governmental employee for perjury.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      62A-4a-410, as last amended by Chapter 302, Laws of Utah 1995
                      63-30-4, as last amended by Chapter 76, Laws of Utah 1991
                      63-30-36, as last amended by Chapter 76, Laws of Utah 1991
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 62A-4a-410 is amended to read:
                       62A-4a-410. Immunity from liability.
                      (1) Any person, official, or institution participating in good faith in making a report, taking
                  photographs or X-rays, assisting an investigator from the division, serving as a member of a child
                  protection team, or taking a child into protective custody pursuant to this part, is immune from any
                  liability, civil or criminal, that otherwise might result by reason of those actions.
                      (2) This section does not provide immunity with respect to acts or omissions of a
                  governmental employee except as provided in Title 63, Chapter 30, Utah Governmental Immunity
                  Act.
                      Section 2. Section 63-30-4 is amended to read:
                       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; [or]
                      (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[.];

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                      (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.
                      Section 3. Section 63-30-36 is amended to read:
                       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

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                      (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

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                  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 .

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