Download Zipped Enrolled WordPerfect SB0055.ZIP
[Introduced][Status][Bill Documents][Fiscal Note][Bills Directory]
S.B. 55 Enrolled
LONG TITLE
General Description:
This bill enacts a new governmental immunity act.
Highlighted Provisions:
This bill:
. defines the scope of liability and immunity of Utah's state and local governments and
their employees;
. defines terms;
. establishes immunity from suit for injuries that result from the exercise of a
government function;
. waives government immunity from suit for certain specific governmental functions
and provides exceptions to certain of those waivers;
. establishes procedures for making claims against a government entity or employee
when an alleged injury has occurred;
. establishes jurisdiction and venue requirements for actions against government
entities and employees;
. defines certain procedures and requirements for legal actions brought under this
chapter;
. establishes a process for submitting claims for payment to a government entity and
authorizes certain options that government entities may use to pay claims;
. authorizes government entities to self-insure or purchase liability insurance for
potential claims against the entity and establishes procedures and requirements for
implementing those options;
. establishes limits on judgments against government entities or employees;
. addresses legal representation and settlement authority for claims against executive,
legislative, and judicial entities and employees;
. establishes a process for defending employees generally when claims are asserted
against them and defines the scope of that representation; and
. makes technical corrections.
Monies Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a transition clause.
This bill takes effect on July 1, 2004.
This bill provides a coordination clause enacting Section 63-30d-203 , if S.B. 9 passes and
certain conditions are met.
This bill provides a coordination clause amending Section 63-30d-401, if H.B. 111 passes.
Utah Code Sections Affected:
AMENDS:
7-2-9, as last amended by Chapter 177, Laws of Utah 1990
17-50-401, as enacted by Chapter 133, Laws of Utah 2000
17A-2-1830, as enacted by Chapter 216, Laws of Utah 1995
31A-1-301, as last amended by Chapters 131 and 298, Laws of Utah 2003
31A-2-306, as last amended by Chapter 161, Laws of Utah 1987
31A-12-107, as last amended by Chapter 71, Laws of Utah 2002
31A-22-305, as last amended by Chapters 76 and 218, Laws of Utah 2003
63-30a-3, as last amended by Chapter 30, Laws of Utah 1987
63-56-59, as last amended by Chapter 178, Laws of Utah 2002
76-6-513, as last amended by Chapter 291, Laws of Utah 1995
78-3a-113 (Superseded 07/01/04), as renumbered and amended by Chapter 365, Laws of
Utah 1997
78-3a-113 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
78-3a-114 (Superseded 07/01/04), as renumbered and amended by Chapter 365, Laws of
Utah 1997
78-3a-114 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
78-3a-118 (Superseded 07/01/04), as last amended by Chapters 68, 176, 195 and 278,
Laws of Utah 2003
78-3a-118 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
78-17-3, as enacted by Chapter 143, Laws of Utah 1986
78-19-1, as enacted by Chapter 4, Laws of Utah 1990
ENACTS:
63-30d-101, Utah Code Annotated 1953
63-30d-102, Utah Code Annotated 1953
63-30d-201, Utah Code Annotated 1953
63-30d-202, Utah Code Annotated 1953
63-30d-301, Utah Code Annotated 1953
63-30d-302, Utah Code Annotated 1953
63-30d-401, Utah Code Annotated 1953
63-30d-402, Utah Code Annotated 1953
63-30d-403, Utah Code Annotated 1953
63-30d-501, Utah Code Annotated 1953
63-30d-502, Utah Code Annotated 1953
63-30d-601, Utah Code Annotated 1953
63-30d-602, Utah Code Annotated 1953
63-30d-603, Utah Code Annotated 1953
63-30d-604, Utah Code Annotated 1953
63-30d-701, Utah Code Annotated 1953
63-30d-702, Utah Code Annotated 1953
63-30d-703, Utah Code Annotated 1953
63-30d-704, Utah Code Annotated 1953
63-30d-801, Utah Code Annotated 1953
63-30d-802, Utah Code Annotated 1953
63-30d-803, Utah Code Annotated 1953
63-30d-804, Utah Code Annotated 1953
63-30d-805, Utah Code Annotated 1953
63-30d-901, Utah Code Annotated 1953
63-30d-902, Utah Code Annotated 1953
63-30d-903, Utah Code Annotated 1953
63-30d-904, Utah Code Annotated 1953
REPEALS:
63-30-1, as enacted by Chapter 139, Laws of Utah 1965
63-30-2, as last amended by Chapter 224, Laws of Utah 2000
63-30-3, as last amended by Chapter 3, Laws of Utah 2003
63-30-4, as last amended by Chapter 206, Laws of Utah 2002
63-30-5, as last amended by Chapter 251, Laws of Utah 1991
63-30-6, as enacted by Chapter 139, Laws of Utah 1965
63-30-7, as amended by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
63-30-8, as last amended by Chapter 76, Laws of Utah 1991
63-30-9, as last amended by Chapter 76, Laws of Utah 1991
63-30-10, as last amended by Chapter 185, Laws of Utah 2001
63-30-10.5, as last amended by Chapter 76, Laws of Utah 1991
63-30-10.6, as last amended by Chapter 280, Laws of Utah 1992
63-30-11, as last amended by Chapter 157, Laws of Utah 2000
63-30-12, as last amended by Chapter 164, Laws of Utah 1998
63-30-13, as last amended by Chapter 164, Laws of Utah 1998
63-30-14, as enacted by Chapter 139, Laws of Utah 1965
63-30-15, as last amended by Chapter 75, Laws of Utah 1987
63-30-16, as last amended by Chapter 166, Laws of Utah 1999
63-30-17, as last amended by Chapter 129, Laws of Utah 1983
63-30-18, as last amended by Chapter 313, Laws of Utah 1995
63-30-19, as enacted by Chapter 139, Laws of Utah 1965
63-30-20, as enacted by Chapter 139, Laws of Utah 1965
63-30-22, as last amended by Chapter 67, Laws of Utah 1991
63-30-23, as last amended by Chapter 75, Laws of Utah 1987
63-30-24, as enacted by Chapter 139, Laws of Utah 1965
63-30-25, as enacted by Chapter 139, Laws of Utah 1965
63-30-26, as last amended by Chapter 129, Laws of Utah 1983
63-30-27, as last amended by Chapter 3, Laws of Utah 1988
63-30-28, as last amended by Chapter 203, Laws of Utah 1991
63-30-29.5, as last amended by Chapter 242, Laws of Utah 1985
63-30-31, as last amended by Chapter 129, Laws of Utah 1983
63-30-32, as last amended by Chapter 129, Laws of Utah 1983
63-30-33, as last amended by Chapter 76, Laws of Utah 1991
63-30-34, as last amended by Chapter 157, Laws of Utah 2000
63-30-35, as last amended by Chapter 97, Laws of Utah 1990
63-30-36, as last amended by Chapter 206, Laws of Utah 2002
63-30-37, as last amended by Chapter 30, Laws of Utah 1987
63-30-38, as enacted by Chapter 131, Laws of Utah 1983
78-60-101, as enacted by Chapter 180, Laws of Utah 2003
78-60-102, as enacted by Chapter 180, Laws of Utah 2003
78-60-103, as enacted by Chapter 180, Laws of Utah 2003
Uncodified Material Affected:
ENACTS UNCODIFIED MATERIAL
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 7-2-9 is amended to read:
7-2-9. Conservatorship, receivership, or liquidation of institution -- Appointment
of receiver -- Review of actions.
(1) Upon taking possession of the institution, the commissioner may appoint a receiver to
perform the duties of the commissioner. Subject to any limitations, conditions, or requirements
specified by the commissioner and approved by the court, a receiver shall have all the powers and
duties of the commissioner under this chapter and the laws of this state to act as a conservator,
receiver, or liquidator of the institution. Actions of the commissioner in appointing a receiver
shall be subject to review only as provided in Section 7-2-2 .
(2) (a) If the deposits of the institution are to any extent insured by a federal deposit
insurance agency, the commissioner may appoint that agency as receiver. After receiving notice
in writing of the acceptance of the appointment, the commissioner shall file a certificate of
appointment in his office and with the clerk of the district court. After the filing of the certificate,
the possession of all assets, business, and property of the institution is considered transferred from
the institution and the commissioner to the agency, and title to all assets, business, and property of
the institution is vested in the agency without the execution of any instruments of conveyance,
assignment, transfer, or endorsement.
(b) If a federal deposit insurance agency accepts an appointment as receiver, it has all the
powers and privileges provided by the laws of this state and the United States with respect to the
conservatorship, receivership, or liquidation of an institution and the rights of its depositors, and
other creditors, including authority to make an agreement for the purchase of assets and
assumption of deposit and other liabilities by another depository institution or take other action
authorized by Title 12 of the United States Code to maintain the stability of the banking system.
Such action by a federal deposit insurance agency may be taken upon approval by the court, with
or without prior notice. Such actions or agreements may be disapproved, amended, or rescinded
only upon a finding by the court that the decisions or actions of the receiver are arbitrary,
capricious, fraudulent, or contrary to law. In the event of any conflict between state and federal
law, including provisions for adjudicating claims against the institution or receiver, the receiver
shall comply with the federal law and any resulting violation of state law shall not by itself
constitute grounds for the court to disapprove the actions of the receiver or impose any penalty
for such violation.
(c) The commissioner or any receiver appointed by him shall possess all the rights and
claims of the institution against any person whose breach of fiduciary duty or violations of the
laws of this state or the United States applicable to depository institutions may have caused or
contributed to a condition which resulted in any loss incurred by the institution or to its assets in
the possession of the commissioner or receiver. As used in this Subsection (2)(c), fiduciary duty
includes those duties and standards applicable under statutes and laws of this state and the United
States to a director, officer, or other party employed by or rendering professional services to a
depository institution whose deposits are insured by a federal deposit insurance agency. Upon
taking possession of an institution, no person other than the commissioner or receiver shall have
standing to assert any such right or claim of the institution, including its depositors, creditors, or
shareholders unless the right or claim has been abandoned by the commissioner or receiver with
approval of the court. Any judgment based on the rights and claims of the commissioner or
receiver shall have priority in payment from the assets of the judgment debtors.
(d) For the purposes of this section, the term "federal deposit insurance agency" shall
include the Federal Deposit Insurance Corporation, the National Credit Union Administration and
any departments thereof or successors thereto, and any other federal agency authorized by federal
law to act as a conservator, receiver, and liquidator of a federally insured depository institution,
including the Resolution Trust Corporation and any department thereof or successor thereto.
(3) The receiver may employ assistants, agents, accountants, and legal counsel. If the
receiver is not a federal deposit insurance agency, the compensation to be paid such assistants,
agents, accountants, and legal counsel shall be approved by the commissioner. All expenses
incident to the receivership shall be paid out of the assets of the institution. If a receiver is not a
federal deposit insurance agency, the receiver and any assistants and agents shall provide bond or
other security specified by the commissioner and approved by the court for the faithful discharge
of all duties and responsibilities in connection with the receivership including the accounting for
money received and paid. The cost of the bond shall be paid from the assets of the institution.
Suit may be maintained on the bond by the commissioner or by any person injured by a breach of
the condition of the bond.
(4) (a) Upon the appointment of a receiver for an institution in possession pursuant to this
chapter, the commissioner and the department are exempt from liability or damages for any act or
omission of any receiver appointed pursuant to this section.
(b) This section does not limit the right of the commissioner to prescribe and enforce
rules regulating a receiver in carrying out its duties with respect to an institution subject to the
jurisdiction of the department.
(c) Any act or omission of the commissioner or of any federal deposit insurance agency as
a receiver appointed by him while acting pursuant to this chapter shall be deemed to be the
exercise of a discretionary function within the meaning of Section [
laws of this state or Section 28 U.S.C. 2680(a) of the laws of the United States.
(5) Actions, decisions, or agreements of a receiver under this chapter, other than
allowance or disallowance of claims under Section 7-2-6 , shall be subject to judicial review only
as follows:
(a) A petition for review shall be filed with the court having jurisdiction under Section
7-2-2 not more than 90 days after the date the act, decision, or agreement became effective or its
terms are filed with the court.
(b) The petition shall state in simple, concise, and direct terms the facts and principles of
law upon which the petitioner claims the act, decision, or agreement of the receiver was or would
be arbitrary, capricious, fraudulent, or contrary to law and how the petitioner is or may be
damaged thereby. The court shall dismiss any petition which fails to allege that the petitioner
would be directly injured or damaged by the act, decision, or agreement which is the subject of
the petition. Rule 11 of the Utah Rules of Civil Procedure shall apply to all parties with respect to
the allegations set forth in a petition or response.
(c) The receiver shall have 30 days after service of the petition within which to respond.
(d) All further proceedings are to be conducted in accordance with the Utah Rules of
Civil Procedure.
(6) All notices required under this section shall be made in accordance with the Utah
Rules of Civil Procedure and served upon the attorney general of the state of Utah, the
commissioner of financial institutions, the receiver of the institution appointed under this chapter,
and upon the designated representative of any party in interest who requests in writing such
notice.
Section 2. Section 17-50-401 is amended to read:
17-50-401. Review of claims by county executive -- Auditor review -- Attorney
review -- Claim requirements -- Approval or disapproval of claim.
(1) Subject to Subsection (3), each county executive shall review each claim against the
county and disapprove or, if payment appears to the county executive to be just, lawful, and
properly due and owing, approve the claim.
(2) Upon receiving a notice of claim under Section [
clerk shall deliver the notice of claim to the county executive.
(3) (a) The county executive shall forward all claims regarding liability to the county
attorney, or, in a county that has a district attorney but not a county attorney, to the district
attorney for the attorney's review and recommendation to the county executive regarding liability
and payment.
(b) Except as provided in Section 17-50-405 , the county executive shall forward all
claims requesting payment for goods or services to the county auditor for the auditor's review and
recommendation to the county executive.
(4) Each claim for goods or services against a county shall:
(a) itemize the claim, giving applicable names, dates, and particular goods provided or
services rendered;
(b) if the claim is for service of process, state the character of process served, upon whom
served, the number of days engaged, and the number of miles traveled;
(c) be duly substantiated as to its correctness and as to the fact that it is justly due;
(d) if the claim is for materials furnished, state to whom the materials were furnished, by
whom ordered, and the quantity and price agreed upon; and
(e) be presented to the county executive within a year after the last item of the account or
credit accrued.
(5) If the county executive refuses to hear or consider a claim because it is not properly
made out, the county executive shall cause notice of the refusal to be given to the claimant or the
claimant's agent and shall allow a reasonable amount of time for the claim to be properly itemized
and substantiated.
(6) Nothing in this section may be construed to modify the requirements of Section
[
Section 3. Section 17A-2-1830 is amended to read:
17A-2-1830. Limitation of liability.
(1) The members of the board of trustees, or any person acting in behalf of the board,
while acting within the scope of their authority, are not subject to any personal liability resulting
from carrying out any of the powers of this part.
(2) The provisions of Section [
of trustees, officers, employees, authorized volunteers, and agents of the regional service area in
connection with any claims, demands, suits, actions, or proceedings that may be made or brought
against any of them arising out of any determination made or actions taken or omitted to be taken
in compliance with any obligations under the terms of this part.
(3) The regional service area or any member of the board of trustees, officer, employee,
authorized volunteer, or its agent is not liable to any person, for personal injury or property
damage or otherwise, arising from the operation of facilities for sports competitions by any person
or organization other than the regional service area. Nothing contained in this Subsection (3)
shall relieve the regional service area or any person from liability or responsibility for its or their
own contracts, conduct, or omissions.
Section 4. Section 31A-1-301 is amended to read:
31A-1-301. Definitions.
As used in this title, unless otherwise specified:
(1) (a) "Accident and health insurance" means insurance to provide protection against
economic losses resulting from:
(i) a medical condition including:
(A) medical care expenses; or
(B) the risk of disability;
(ii) accident; or
(iii) sickness.
(b) "Accident and health insurance":
(i) includes a contract with disability contingencies including:
(A) an income replacement contract;
(B) a health care contract;
(C) an expense reimbursement contract;
(D) a credit accident and health contract;
(E) a continuing care contract; and
(F) long-term care contracts; and
(ii) may provide:
(A) hospital coverage;
(B) surgical coverage;
(C) medical coverage; or
(D) loss of income coverage.
(c) "Accident and health insurance" does not include workers' compensation insurance.
(2) "Actuary" is as defined by the commissioner by rule, made in accordance with Title
63, Chapter 46a, Utah Administrative Rulemaking Act.
(3) "Administrator" is defined in Subsection (149).
(4) "Adult" means a natural person who has attained the age of at least 18 years.
(5) "Affiliate" means any person who controls, is controlled by, or is under common
control with, another person. A corporation is an affiliate of another corporation, regardless of
ownership, if substantially the same group of natural persons manages the corporations.
(6) "Agency" means:
(a) a person other than an individual, including a sole proprietorship by which a natural
person does business under an assumed name; and
(b) an insurance organization licensed or required to be licensed under Section
31A-23a-301 .
(7) "Alien insurer" means an insurer domiciled outside the United States.
(8) "Amendment" means an endorsement to an insurance policy or certificate.
(9) "Annuity" means an agreement to make periodical payments for a period certain or
over the lifetime of one or more natural persons if the making or continuance of all or some of the
series of the payments, or the amount of the payment, is dependent upon the continuance of
human life.
(10) "Application" means a document:
(a) completed by an applicant to provide information about the risk to be insured; and
(b) that contains information that is used by the insurer to:
(i) evaluate risk; and
(ii) decide whether to:
(A) insure the risk under:
(I) the coverages as originally offered; or
(II) a modification of the coverage as originally offered; or
(B) decline to insure the risk.
(11) "Articles" or "articles of incorporation" means the original articles, special laws,
charters, amendments, restated articles, articles of merger or consolidation, trust instruments, and
other constitutive documents for trusts and other entities that are not corporations, and
amendments to any of these.
(12) "Bail bond insurance" means a guarantee that a person will attend court when
required, or will obey the orders or judgment of the court, as a condition to the release of that
person from confinement.
(13) "Binder" is defined in Section 31A-21-102 .
(14) "Board," "board of trustees," or "board of directors" means the group of persons
with responsibility over, or management of, a corporation, however designated.
(15) "Business entity" means a corporation, association, partnership, limited liability
company, limited liability partnership, or other legal entity.
(16) "Business of insurance" is defined in Subsection (80).
(17) "Business plan" means the information required to be supplied to the commissioner
under Subsections 31A-5-204 (2)(i) and (j), including the information required when these
subsections are applicable by reference under:
(a) Section 31A-7-201 ;
(b) Section 31A-8-205 ; or
(c) Subsection 31A-9-205 (2).
(18) "Bylaws" means the rules adopted for the regulation or management of a
corporation's affairs, however designated and includes comparable rules for trusts and other
entities that are not corporations.
(19) "Captive insurance company" means:
(a) an insurance company:
(i) owned by another organization; and
(ii) whose exclusive purpose is to insure risks of the parent organization and affiliated
companies; or
(b) in the case of groups and associations, an insurance organization:
(i) owned by the insureds; and
(ii) whose exclusive purpose is to insure risks of:
(A) member organizations;
(B) group members; and
(C) affiliates of:
(I) member organizations; or
(II) group members.
(20) "Casualty insurance" means liability insurance as defined in Subsection (90).
(21) "Certificate" means evidence of insurance given to:
(a) an insured under a group insurance policy; or
(b) a third party.
(22) "Certificate of authority" is included within the term "license."
(23) "Claim," unless the context otherwise requires, means a request or demand on an
insurer for payment of benefits according to the terms of an insurance policy.
(24) "Claims-made coverage" means an insurance contract or provision limiting coverage
under a policy insuring against legal liability to claims that are first made against the insured while
the policy is in force.
(25) (a) "Commissioner" or "commissioner of insurance" means Utah's insurance
commissioner.
(b) When appropriate, the terms listed in Subsection (25)(a) apply to the equivalent
supervisory official of another jurisdiction.
(26) (a) "Continuing care insurance" means insurance that:
(i) provides board and lodging;
(ii) provides one or more of the following services:
(A) personal services;
(B) nursing services;
(C) medical services; or
(D) other health-related services; and
(iii) provides the coverage described in Subsection (26)(a)(i) under an agreement
effective:
(A) for the life of the insured; or
(B) for a period in excess of one year.
(b) Insurance is continuing care insurance regardless of whether or not the board and
lodging are provided at the same location as the services described in Subsection (26)(a)(ii).
(27) (a) "Control," "controlling," "controlled," or "under common control" means the
direct or indirect possession of the power to direct or cause the direction of the management and
policies of a person. This control may be:
(i) by contract;
(ii) by common management;
(iii) through the ownership of voting securities; or
(iv) by a means other than those described in Subsections (27)(a)(i) through (iii).
(b) There is no presumption that an individual holding an official position with another
person controls that person solely by reason of the position.
(c) A person having a contract or arrangement giving control is considered to have
control despite the illegality or invalidity of the contract or arrangement.
(d) There is a rebuttable presumption of control in a person who directly or indirectly
owns, controls, holds with the power to vote, or holds proxies to vote 10% or more of the voting
securities of another person.
(28) "Controlled insurer" means a licensed insurer that is either directly or indirectly
controlled by a producer.
(29) "Controlling person" means any person, firm, association, or corporation that
directly or indirectly has the power to direct or cause to be directed, the management, control, or
activities of a reinsurance intermediary.
(30) "Controlling producer" means a producer who directly or indirectly controls an
insurer.
(31) (a) "Corporation" means insurance corporation, except when referring to:
(i) a corporation doing business as an insurance producer, limited line producer,
consultant, managing general agent, reinsurance intermediary, third party administrator, or
adjuster under:
(A) Chapter 23a, Insurance Marketing - Licensing Producers, Consultants, and
Reinsurance Intermediaries;
(B) Chapter 25, Third Party Administrators; and
(C) Chapter 26, Insurance Adjusters; or
(ii) a noninsurer that is part of a holding company system under Chapter 16, Insurance
Holding Companies.
(b) "Stock corporation" means stock insurance corporation.
(c) "Mutual" or "mutual corporation" means a mutual insurance corporation.
(32) "Credit accident and health insurance" means insurance on a debtor to provide
indemnity for payments coming due on a specific loan or other credit transaction while the debtor
is disabled.
(33) (a) "Credit insurance" means insurance offered in connection with an extension of
credit that is limited to partially or wholly extinguishing that credit obligation.
(b) "Credit insurance" includes:
(i) credit accident and health insurance;
(ii) credit life insurance;
(iii) credit property insurance;
(iv) credit unemployment insurance;
(v) guaranteed automobile protection insurance;
(vi) involuntary unemployment insurance;
(vii) mortgage accident and health insurance;
(viii) mortgage guaranty insurance; and
(ix) mortgage life insurance.
(34) "Credit life insurance" means insurance on the life of a debtor in connection with an
extension of credit that pays a person if the debtor dies.
(35) "Credit property insurance" means insurance:
(a) offered in connection with an extension of credit; and
(b) that protects the property until the debt is paid.
(36) "Credit unemployment insurance" means insurance:
(a) offered in connection with an extension of credit; and
(b) that provides indemnity if the debtor is unemployed for payments coming due on a:
(i) specific loan; or
(ii) credit transaction.
(37) "Creditable coverage" is as defined in 45 C.F.R. 146.113(a).
(38) "Creditor" means a person, including an insured, having any claim, whether:
(a) matured;
(b) unmatured;
(c) liquidated;
(d) unliquidated;
(e) secured;
(f) unsecured;
(g) absolute;
(h) fixed; or
(i) contingent.
(39) (a) "Customer service representative" means a person that provides insurance
services and insurance product information:
(i) for the customer service representative's producer or consultant employer; and
(ii) to the customer service representative's employer's customer, client, or organization.
(b) A customer service representative may only operate within the scope of authority of
the customer service representative's producer or consultant employer.
(40) "Deadline" means the final date or time:
(a) imposed by:
(i) statute;
(ii) rule; or
(iii) order; and
(b) by which a required filing or payment must be received by the department.
(41) "Deemer clause" means a provision under this title under which upon the occurrence
of a condition precedent, the commissioner is deemed to have taken a specific action. If the
statute so provides, the condition precedent may be the commissioner's failure to take a specific
action.
(42) "Degree of relationship" means the number of steps between two persons determined
by counting the generations separating one person from a common ancestor and then counting the
generations to the other person.
(43) "Department" means the Insurance Department.
(44) "Director" means a member of the board of directors of a corporation.
(45) "Disability" means a physiological or psychological condition that partially or totally
limits an individual's ability to:
(a) perform the duties of:
(i) that individual's occupation; or
(ii) any occupation for which the individual is reasonably suited by education, training, or
experience; or
(b) perform two or more of the following basic activities of daily living:
(i) eating;
(ii) toileting;
(iii) transferring;
(iv) bathing; or
(v) dressing.
(46) "Disability income insurance" is defined in Subsection (71).
(47) "Domestic insurer" means an insurer organized under the laws of this state.
(48) "Domiciliary state" means the state in which an insurer:
(a) is incorporated;
(b) is organized; or
(c) in the case of an alien insurer, enters into the United States.
(49) (a) "Eligible employee" means:
(i) an employee who:
(A) works on a full-time basis; and
(B) has a normal work week of 30 or more hours; or
(ii) a person described in Subsection (49)(b).
(b) "Eligible employee" includes, if the individual is included under a health benefit plan of
a small employer:
(i) a sole proprietor;
(ii) a partner in a partnership; or
(iii) an independent contractor.
(c) "Eligible employee" does not include, unless eligible under Subsection (49)(b):
(i) an individual who works on a temporary or substitute basis for a small employer;
(ii) an employer's spouse; or
(iii) a dependent of an employer.
(50) "Employee" means any individual employed by an employer.
(51) "Employee benefits" means one or more benefits or services provided to:
(a) employees; or
(b) dependents of employees.
(52) (a) "Employee welfare fund" means a fund:
(i) established or maintained, whether directly or through trustees, by:
(A) one or more employers;
(B) one or more labor organizations; or
(C) a combination of employers and labor organizations; and
(ii) that provides employee benefits paid or contracted to be paid, other than income from
investments of the fund, by or on behalf of an employer doing business in this state or for the
benefit of any person employed in this state.
(b) "Employee welfare fund" includes a plan funded or subsidized by user fees or tax
revenues.
(53) "Endorsement" means a written agreement attached to a policy or certificate to
modify one or more of the provisions of the policy or certificate.
(54) (a) "Escrow" means:
(i) a real estate settlement or real estate closing conducted by a third party pursuant to the
requirements of a written agreement between the parties in a real estate transaction; or
(ii) a settlement or closing involving:
(A) a mobile home;
(B) a grazing right;
(C) a water right; or
(D) other personal property authorized by the commissioner.
(b) "Escrow" includes the act of conducting a:
(i) real estate settlement; or
(ii) real estate closing.
(55) "Excludes" is not exhaustive and does not mean that other things are not also
excluded. The items listed are representative examples for use in interpretation of this title.
(56) "Expense reimbursement insurance" means insurance:
(a) written to provide payments for expenses relating to hospital confinements resulting
from illness or injury; and
(b) written:
(i) as a daily limit for a specific number of days in a hospital; and
(ii) to have a one or two day waiting period following a hospitalization.
(57) "Fidelity insurance" means insurance guaranteeing the fidelity of persons holding
positions of public or private trust.
(58) (a) "Filed" means that a filing is:
(i) submitted to the department as required by and in accordance with any applicable
statute, rule, or filing order;
(ii) received by the department within the time period provided in the applicable statute,
rule, or filing order; and
(iii) accompanied by the appropriate fee in accordance with:
(A) Section 31A-3-103 ; or
(B) rule.
(b) "Filed" does not include a filing that is rejected by the department because it is not
submitted in accordance with Subsection (58)(a).
(59) "Filing," when used as a noun, means an item required to be filed with the
department including:
(a) a policy;
(b) a rate;
(c) a form;
(d) a document;
(e) a plan;
(f) a manual;
(g) an application;
(h) a report;
(i) a certificate;
(j) an endorsement;
(k) an actuarial certification;
(l) a licensee annual statement;
(m) a licensee renewal application; or
(n) an advertisement.
(60) "First party insurance" means an insurance policy or contract in which the insurer
agrees to pay claims submitted to it by the insured for the insured's losses.
(61) "Foreign insurer" means an insurer domiciled outside of this state, including an alien
insurer.
(62) (a) "Form" means one of the following prepared for general use:
(i) a policy;
(ii) a certificate;
(iii) an application; or
(iv) an outline of coverage.
(b) "Form" does not include a document specially prepared for use in an individual case.
(63) "Franchise insurance" means individual insurance policies provided through a mass
marketing arrangement involving a defined class of persons related in some way other than
through the purchase of insurance.
(64) "General lines of authority" include:
(a) the general lines of insurance in Subsection (65);
(b) title insurance under one of the following sublines of authority:
(i) search, including authority to act as a title marketing representative;
(ii) escrow, including authority to act as a title marketing representative;
(iii) search and escrow, including authority to act as a title marketing representative; and
(iv) title marketing representative only;
(c) surplus lines;
(d) workers' compensation; and
(e) any other line of insurance that the commissioner considers necessary to recognize in
the public interest.
(65) "General lines of insurance" include:
(a) accident and health;
(b) casualty;
(c) life;
(d) personal lines;
(e) property; and
(f) variable contracts, including variable life and annuity.
(66) "Group health plan" means an employee welfare benefit plan to the extent that the
plan provides medical care:
(a) (i) to employees; or
(ii) to a dependent of an employee; and
(b) (i) directly;
(ii) through insurance reimbursement; or
(iii) through any other method.
(67) "Guaranteed automobile protection insurance" means insurance offered in
connection with an extension of credit that pays the difference in amount between the insurance
settlement and the balance of the loan if the insured automobile is a total loss.
(68) "Health benefit plan" means a policy or certificate for health care insurance, except
that health benefit plan does not include coverage:
(a) solely for:
(i) accident;
(ii) dental;
(iii) vision;
(iv) Medicare supplement;
(v) long-term care; or
(vi) income replacement; or
(b) that is:
(i) offered and marketed as supplemental health insurance;
(ii) not offered or marketed as a substitute for:
(A) hospital or medical expense insurance; or
(B) major medical expense insurance; and
(iii) solely for:
(A) a specified disease;
(B) hospital confinement indemnity; or
(C) limited benefit plan.
(69) "Health care" means any of the following intended for use in the diagnosis,
treatment, mitigation, or prevention of a human ailment or impairment:
(a) professional services;
(b) personal services;
(c) facilities;
(d) equipment;
(e) devices;
(f) supplies; or
(g) medicine.
(70) (a) "Health care insurance" or "health insurance" means insurance providing:
(i) health care benefits; or
(ii) payment of incurred health care expenses.
(b) "Health care insurance" or "health insurance" does not include accident and health
insurance providing benefits for:
(i) replacement of income;
(ii) short-term accident;
(iii) fixed indemnity;
(iv) credit accident and health;
(v) supplements to liability;
(vi) workers' compensation;
(vii) automobile medical payment;
(viii) no-fault automobile;
(ix) equivalent self-insurance; or
(x) any type of accident and health insurance coverage that is a part of or attached to
another type of policy.
(71) "Income replacement insurance" or "disability income insurance" means insurance
written to provide payments to replace income lost from accident or sickness.
(72) "Indemnity" means the payment of an amount to offset all or part of an insured loss.
(73) "Independent adjuster" means an insurance adjuster required to be licensed under
Section 31A-26-201 who engages in insurance adjusting as a representative of insurers.
(74) "Independently procured insurance" means insurance procured under Section
31A-15-104 .
(75) "Individual" means a natural person.
(76) "Inland marine insurance" includes insurance covering:
(a) property in transit on or over land;
(b) property in transit over water by means other than boat or ship;
(c) bailee liability;
(d) fixed transportation property such as bridges, electric transmission systems, radio and
television transmission towers and tunnels; and
(e) personal and commercial property floaters.
(77) "Insolvency" means that:
(a) an insurer is unable to pay its debts or meet its obligations as they mature;
(b) an insurer's total adjusted capital is less than the insurer's mandatory control level
RBC under Subsection 31A-17-601 (8)(c); or
(c) an insurer is determined to be hazardous under this title.
(78) (a) "Insurance" means:
(i) an arrangement, contract, or plan for the transfer of a risk or risks from one or more
persons to one or more other persons; or
(ii) an arrangement, contract, or plan for the distribution of a risk or risks among a group
of persons that includes the person seeking to distribute that person's risk.
(b) "Insurance" includes:
(i) risk distributing arrangements providing for compensation or replacement for damages
or loss through the provision of services or benefits in kind;
(ii) contracts of guaranty or suretyship entered into by the guarantor or surety as a
business and not as merely incidental to a business transaction; and
(iii) plans in which the risk does not rest upon the person who makes the arrangements,
but with a class of persons who have agreed to share it.
(79) "Insurance adjuster" means a person who directs the investigation, negotiation, or
settlement of a claim under an insurance policy other than life insurance or an annuity, on behalf
of an insurer, policyholder, or a claimant under an insurance policy.
(80) "Insurance business" or "business of insurance" includes:
(a) providing health care insurance, as defined in Subsection (70), by organizations that
are or should be licensed under this title;
(b) providing benefits to employees in the event of contingencies not within the control of
the employees, in which the employees are entitled to the benefits as a right, which benefits may
be provided either:
(i) by single employers or by multiple employer groups; or
(ii) through trusts, associations, or other entities;
(c) providing annuities, including those issued in return for gifts, except those provided by
persons specified in Subsections 31A-22-1305 (2) and (3);
(d) providing the characteristic services of motor clubs as outlined in Subsection (106);
(e) providing other persons with insurance as defined in Subsection (78);
(f) making as insurer, guarantor, or surety, or proposing to make as insurer, guarantor, or
surety, any contract or policy of title insurance;
(g) transacting or proposing to transact any phase of title insurance, including solicitation,
negotiation preliminary to execution, execution of a contract of title insurance, insuring, and
transacting matters subsequent to the execution of the contract and arising out of it, including
reinsurance; and
(h) doing, or proposing to do, any business in substance equivalent to Subsections (80)(a)
through (g) in a manner designed to evade the provisions of this title.
(81) "Insurance consultant" or "consultant" means a person who:
(a) advises other persons about insurance needs and coverages;
(b) is compensated by the person advised on a basis not directly related to the insurance
placed; and
(c) except as provided in Section 31A-23a-501 , is not compensated directly or indirectly
by an insurer or producer for advice given.
(82) "Insurance holding company system" means a group of two or more affiliated
persons, at least one of whom is an insurer.
(83) (a) "Insurance producer" or "producer" means a person licensed or required to be
licensed under the laws of this state to sell, solicit, or negotiate insurance.
(b) With regards to the selling, soliciting, or negotiating of an insurance product to an
insurance customer or an insured:
(i) "producer for the insurer" means a producer who is compensated directly or indirectly
by an insurer for selling, soliciting, or negotiating any product of that insurer; and
(ii) "producer for the insured" means a producer who:
(A) is compensated directly and only by an insurance customer or an insured; and
(B) receives no compensation directly or indirectly from an insurer for selling, soliciting,
or negotiating any product of that insurer to an insurance customer or insured.
(84) (a) "Insured" means a person to whom or for whose benefit an insurer makes a
promise in an insurance policy and includes:
(i) policyholders;
(ii) subscribers;
(iii) members; and
(iv) beneficiaries.
(b) The definition in Subsection (84)(a):
(i) applies only to this title; and
(ii) does not define the meaning of this word as used in insurance policies or certificates.
(85) (a) (i) "Insurer" means any person doing an insurance business as a principal
including:
(A) fraternal benefit societies;
(B) issuers of gift annuities other than those specified in Subsections 31A-22-1305 (2) and
(3);
(C) motor clubs;
(D) employee welfare plans; and
(E) any person purporting or intending to do an insurance business as a principal on that
person's own account.
(ii) "Insurer" does not include a governmental entity[
the extent it is engaged in the activities described in Section 31A-12-107 .
(b) "Admitted insurer" is defined in Subsection (153)(b).
(c) "Alien insurer" is defined in Subsection (7).
(d) "Authorized insurer" is defined in Subsection (153)(b).
(e) "Domestic insurer" is defined in Subsection (47).
(f) "Foreign insurer" is defined in Subsection (61).
(g) "Nonadmitted insurer" is defined in Subsection (153)(a).
(h) "Unauthorized insurer" is defined in Subsection (153)(a).
(86) "Interinsurance exchange" is defined in Subsection (135).
(87) "Involuntary unemployment insurance" means insurance:
(a) offered in connection with an extension of credit;
(b) that provides indemnity if the debtor is involuntarily unemployed for payments coming
due on a:
(i) specific loan; or
(ii) credit transaction.
(88) "Large employer," in connection with a health benefit plan, means an employer who,
with respect to a calendar year and to a plan year:
(a) employed an average of at least 51 eligible employees on each business day during the
preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(89) (a) Except for a retainer contract or legal assistance described in Section 31A-1-103 ,
"legal expense insurance" means insurance written to indemnify or pay for specified legal
expenses.
(b) "Legal expense insurance" includes arrangements that create reasonable expectations
of enforceable rights.
(c) "Legal expense insurance" does not include the provision of, or reimbursement for,
legal services incidental to other insurance coverages.
(90) (a) "Liability insurance" means insurance against liability:
(i) for death, injury, or disability of any human being, or for damage to property, exclusive
of the coverages under:
(A) Subsection (100) for medical malpractice insurance;
(B) Subsection (127) for professional liability insurance; and
(C) Subsection (157) for workers' compensation insurance;
(ii) for medical, hospital, surgical, and funeral benefits to persons other than the insured
who are injured, irrespective of legal liability of the insured, when issued with or supplemental to
insurance against legal liability for the death, injury, or disability of human beings, exclusive of the
coverages under:
(A) Subsection (100) for medical malpractice insurance;
(B) Subsection (127) for professional liability insurance; and
(C) Subsection (157) for workers' compensation insurance;
(iii) for loss or damage to property resulting from accidents to or explosions of boilers,
pipes, pressure containers, machinery, or apparatus;
(iv) for loss or damage to any property caused by the breakage or leakage of sprinklers,
water pipes and containers, or by water entering through leaks or openings in buildings; or
(v) for other loss or damage properly the subject of insurance not within any other kind or
kinds of insurance as defined in this chapter, if such insurance is not contrary to law or public
policy.
(b) "Liability insurance" includes:
(i) vehicle liability insurance as defined in Subsection (155);
(ii) residential dwelling liability insurance as defined in Subsection (138); and
(iii) making inspection of, and issuing certificates of inspection upon, elevators, boilers,
machinery, and apparatus of any kind when done in connection with insurance on them.
(91) (a) "License" means the authorization issued by the commissioner to engage in some
activity that is part of or related to the insurance business.
(b) "License" includes certificates of authority issued to insurers.
(92) (a) "Life insurance" means insurance on human lives and insurances pertaining to or
connected with human life.
(b) The business of life insurance includes:
(i) granting death benefits;
(ii) granting annuity benefits;
(iii) granting endowment benefits;
(iv) granting additional benefits in the event of death by accident;
(v) granting additional benefits to safeguard the policy against lapse in the event of
disability; and
(vi) providing optional methods of settlement of proceeds.
(93) "Limited license" means a license that:
(a) is issued for a specific product of insurance; and
(b) limits an individual or agency to transact only for that product or insurance.
(94) "Limited line credit insurance" includes the following forms of insurance:
(a) credit life;
(b) credit accident and health;
(c) credit property;
(d) credit unemployment;
(e) involuntary unemployment;
(f) mortgage life;
(g) mortgage guaranty;
(h) mortgage accident and health;
(i) guaranteed automobile protection; and
(j) any other form of insurance offered in connection with an extension of credit that:
(i) is limited to partially or wholly extinguishing the credit obligation; and
(ii) the commissioner determines by rule should be designated as a form of limited line
credit insurance.
(95) "Limited line credit insurance producer" means a person who sells, solicits, or
negotiates one or more forms of limited line credit insurance coverage to individuals through a
master, corporate, group, or individual policy.
(96) "Limited line insurance" includes:
(a) bail bond;
(b) limited line credit insurance;
(c) legal expense insurance;
(d) motor club insurance;
(e) rental car-related insurance;
(f) travel insurance; and
(g) any other form of limited insurance that the commissioner determines by rule should
be designated a form of limited line insurance.
(97) "Limited lines authority" includes:
(a) the lines of insurance listed in Subsection (96); and
(b) a customer service representative.
(98) "Limited lines producer" means a person who sells, solicits, or negotiates limited
lines insurance.
(99) (a) "Long-term care insurance" means an insurance policy or rider advertised,
marketed, offered, or designated to provide coverage:
(i) in a setting other than an acute care unit of a hospital;
(ii) for not less than 12 consecutive months for each covered person on the basis of:
(A) expenses incurred;
(B) indemnity;
(C) prepayment; or
(D) another method;
(iii) for one or more necessary or medically necessary services that are:
(A) diagnostic;
(B) preventative;
(C) therapeutic;
(D) rehabilitative;
(E) maintenance; or
(F) personal care; and
(iv) that may be issued by:
(A) an insurer;
(B) a fraternal benefit society;
(C) (I) a nonprofit health hospital; and
(II) a medical service corporation;
(D) a prepaid health plan;
(E) a health maintenance organization; or
(F) an entity similar to the entities described in Subsections (99)(a)(iv)(A) through (E) to
the extent that the entity is otherwise authorized to issue life or health care insurance.
(b) "Long-term care insurance" includes:
(i) any of the following that provide directly or supplement long-term care insurance:
(A) a group or individual annuity or rider; or
(B) a life insurance policy or rider;
(ii) a policy or rider that provides for payment of benefits based on:
(A) cognitive impairment; or
(B) functional capacity; or
(iii) a qualified long-term care insurance contract.
(c) "Long-term care insurance" does not include:
(i) a policy that is offered primarily to provide basic Medicare supplement coverage;
(ii) basic hospital expense coverage;
(iii) basic medical/surgical expense coverage;
(iv) hospital confinement indemnity coverage;
(v) major medical expense coverage;
(vi) income replacement or related asset-protection coverage;
(vii) accident only coverage;
(viii) coverage for a specified:
(A) disease; or
(B) accident;
(ix) limited benefit health coverage; or
(x) a life insurance policy that accelerates the death benefit to provide the option of a
lump sum payment:
(A) if the following are not conditioned on the receipt of long-term care:
(I) benefits; or
(II) eligibility; and
(B) the coverage is for one or more the following qualifying events:
(I) terminal illness;
(II) medical conditions requiring extraordinary medical intervention; or
(III) permanent institutional confinement.
(100) "Medical malpractice insurance" means insurance against legal liability incident to
the practice and provision of medical services other than the practice and provision of dental
services.
(101) "Member" means a person having membership rights in an insurance corporation.
(102) "Minimum capital" or "minimum required capital" means the capital that must be
constantly maintained by a stock insurance corporation as required by statute.
(103) "Mortgage accident and health insurance" means insurance offered in connection
with an extension of credit that provides indemnity for payments coming due on a mortgage while
the debtor is disabled.
(104) "Mortgage guaranty insurance" means surety insurance under which mortgagees
and other creditors are indemnified against losses caused by the default of debtors.
(105) "Mortgage life insurance" means insurance on the life of a debtor in connection
with an extension of credit that pays if the debtor dies.
(106) "Motor club" means a person:
(a) licensed under:
(i) Chapter 5, Domestic Stock and Mutual Insurance Corporations;
(ii) Chapter 11, Motor Clubs; or
(iii) Chapter 14, Foreign Insurers; and
(b) that promises for an advance consideration to provide for a stated period of time:
(i) legal services under Subsection 31A-11-102 (1)(b);
(ii) bail services under Subsection 31A-11-102 (1)(c); or
(iii) trip reimbursement, towing services, emergency road services, stolen automobile
services, a combination of these services, or any other services given in Subsections
31A-11-102 (1)(b) through (f).
(107) "Mutual" means mutual insurance corporation.
(108) "Network plan" means health care insurance:
(a) that is issued by an insurer; and
(b) under which the financing and delivery of medical care is provided, in whole or in
part, through a defined set of providers under contract with the insurer, including the financing
and delivery of items paid for as medical care.
(109) "Nonparticipating" means a plan of insurance under which the insured is not
entitled to receive dividends representing shares of the surplus of the insurer.
(110) "Ocean marine insurance" means insurance against loss of or damage to:
(a) ships or hulls of ships;
(b) goods, freight, cargoes, merchandise, effects, disbursements, profits, moneys,
securities, choses in action, evidences of debt, valuable papers, bottomry, respondentia interests,
or other cargoes in or awaiting transit over the oceans or inland waterways;
(c) earnings such as freight, passage money, commissions, or profits derived from
transporting goods or people upon or across the oceans or inland waterways; or
(d) a vessel owner or operator as a result of liability to employees, passengers, bailors,
owners of other vessels, owners of fixed objects, customs or other authorities, or other persons in
connection with maritime activity.
(111) "Order" means an order of the commissioner.
(112) "Outline of coverage" means a summary that explains an accident and health
insurance policy.
(113) "Participating" means a plan of insurance under which the insured is entitled to
receive dividends representing shares of the surplus of the insurer.
(114) "Participation," as used in a health benefit plan, means a requirement relating to the
minimum percentage of eligible employees that must be enrolled in relation to the total number of
eligible employees of an employer reduced by each eligible employee who voluntarily declines
coverage under the plan because the employee has other health care insurance coverage.
(115) "Person" includes an individual, partnership, corporation, incorporated or
unincorporated association, joint stock company, trust, reciprocal, syndicate, or any similar entity
or combination of entities acting in concert.
(116) "Personal lines insurance" means property and casualty insurance coverage sold for
primarily noncommercial purposes to:
(a) individuals; and
(b) families.
(117) "Plan sponsor" is as defined in 29 U.S.C. Sec. 1002(16)(B).
(118) "Plan year" means:
(a) the year that is designated as the plan year in:
(i) the plan document of a group health plan; or
(ii) a summary plan description of a group health plan;
(b) if the plan document or summary plan description does not designate a plan year or
there is no plan document or summary plan description:
(i) the year used to determine deductibles or limits;
(ii) the policy year, if the plan does not impose deductibles or limits on a yearly basis; or
(iii) the employer's taxable year if:
(A) the plan does not impose deductibles or limits on a yearly basis; and
(B) (I) the plan is not insured; or
(II) the insurance policy is not renewed on an annual basis; or
(c) in a case not described in Subsection (118)(a) or (b), the calendar year.
(119) (a) (i) "Policy" means any document, including attached endorsements and riders,
purporting to be an enforceable contract, which memorializes in writing some or all of the terms
of an insurance contract.
(ii) "Policy" includes a service contract issued by:
(A) a motor club under Chapter 11, Motor Clubs;
(B) a service contract provided under Chapter 6a, Service Contracts; and
(C) a corporation licensed under:
(I) Chapter 7, Nonprofit Health Service Insurance Corporations; or
(II) Chapter 8, Health Maintenance Organizations and Limited Health Plans.
(iii) "Policy" does not include:
(A) a certificate under a group insurance contract; or
(B) a document that does not purport to have legal effect.
(b) (i) "Group insurance policy" means a policy covering a group of persons that is issued
to a policyholder on behalf of the group, for the benefit of group members who are selected under
procedures defined in the policy or in agreements which are collateral to the policy.
(ii) A group insurance policy may include members of the policyholder's family or
dependents.
(c) "Blanket insurance policy" means a group policy covering classes of persons without
individual underwriting, where the persons insured are determined by definition of the class with
or without designating the persons covered.
(120) "Policyholder" means the person who controls a policy, binder, or oral contract by
ownership, premium payment, or otherwise.
(121) "Policy illustration" means a presentation or depiction that includes nonguaranteed
elements of a policy of life insurance over a period of years.
(122) "Policy summary" means a synopsis describing the elements of a life insurance
policy.
(123) "Preexisting condition," in connection with a health benefit plan, means:
(a) a condition for which medical advice, diagnosis, care, or treatment was recommended
or received during the six months immediately preceding the earlier of:
(i) the enrollment date; or
(ii) the effective date of coverage; or
(b) for an individual insurance policy, a pregnancy existing on the effective date of
coverage.
(124) (a) "Premium" means the monetary consideration for an insurance policy, and
includes assessments, membership fees, required contributions, or monetary consideration,
however designated.
(b) Consideration paid to third party administrators for their services is not "premium,"
though amounts paid by third party administrators to insurers for insurance on the risks
administered by the third party administrators are "premium."
(125) "Principal officers" of a corporation means the officers designated under Subsection
31A-5-203 (3).
(126) "Proceedings" includes actions and special statutory proceedings.
(127) "Professional liability insurance" means insurance against legal liability incident to
the practice of a profession and provision of any professional services.
(128) "Property insurance" means insurance against loss or damage to real or personal
property of every kind and any interest in that property, from all hazards or causes, and against
loss consequential upon the loss or damage including vehicle comprehensive and vehicle physical
damage coverages, but excluding inland marine insurance and ocean marine insurance as defined
under Subsections (76) and (110).
(129) "Qualified long-term care insurance contract" or "federally tax qualified long-term
care insurance contract" means:
(a) an individual or group insurance contract that meets the requirements of Section
7702B(b), Internal Revenue Code; or
(b) the portion of a life insurance contract that provides long-term care insurance:
(i) (A) by rider; or
(B) as a part of the contract; and
(ii) that satisfies the requirements of Section 7702B(b) and (e), Internal Revenue Code.
(130) "Qualified United States financial institution" means an institution that:
(a) is:
(i) organized under the laws of the United States or any state; or
(ii) in the case of a United States office of a foreign banking organization, licensed under
the laws of the United States or any state;
(b) is regulated, supervised, and examined by United States federal or state authorities
having regulatory authority over banks and trust companies; and
(c) meets the standards of financial condition and standing that are considered necessary
and appropriate to regulate the quality of financial institutions whose letters of credit will be
acceptable to the commissioner as determined by:
(i) the commissioner by rule; or
(ii) the Securities Valuation Office of the National Association of Insurance
Commissioners.
(131) (a) "Rate" means:
(i) the cost of a given unit of insurance; or
(ii) for property-casualty insurance, that cost of insurance per exposure unit either
expressed as:
(A) a single number; or
(B) a pure premium rate, adjusted before any application of individual risk variations
based on loss or expense considerations to account for the treatment of:
(I) expenses;
(II) profit; and
(III) individual insurer variation in loss experience.
(b) "Rate" does not include a minimum premium.
(132) (a) Except as provided in Subsection (132)(b), "rate service organization" means
any person who assists insurers in rate making or filing by:
(i) collecting, compiling, and furnishing loss or expense statistics;
(ii) recommending, making, or filing rates or supplementary rate information; or
(iii) advising about rate questions, except as an attorney giving legal advice.
(b) "Rate service organization" does not mean:
(i) an employee of an insurer;
(ii) a single insurer or group of insurers under common control;
(iii) a joint underwriting group; or
(iv) a natural person serving as an actuarial or legal consultant.
(133) "Rating manual" means any of the following used to determine initial and renewal
policy premiums:
(a) a manual of rates;
(b) classifications;
(c) rate-related underwriting rules; and
(d) rating formulas that describe steps, policies, and procedures for determining initial and
renewal policy premiums.
(134) "Received by the department" means:
(a) except as provided in Subsection (134)(b), the date delivered to and stamped received
by the department, whether delivered:
(i) in person; or
(ii) electronically; and
(b) if delivered to the department by a delivery service, the delivery service's postmark
date or pick-up date unless otherwise stated in:
(i) statute;
(ii) rule; or
(iii) a specific filing order.
(135) "Reciprocal" or "interinsurance exchange" means any unincorporated association of
persons:
(a) operating through an attorney-in-fact common to all of them; and
(b) exchanging insurance contracts with one another that provide insurance coverage on
each other.
(136) "Reinsurance" means an insurance transaction where an insurer, for consideration,
transfers any portion of the risk it has assumed to another insurer. In referring to reinsurance
transactions, this title sometimes refers to:
(a) the insurer transferring the risk as the "ceding insurer"; and
(b) the insurer assuming the risk as the:
(i) "assuming insurer"; or
(ii) "assuming reinsurer."
(137) "Reinsurer" means any person, firm, association, or corporation licensed in this
state as an insurer with the authority to assume reinsurance.
(138) "Residential dwelling liability insurance" means insurance against liability resulting
from or incident to the ownership, maintenance, or use of a residential dwelling that is a detached
single family residence or multifamily residence up to four units.
(139) "Retrocession" means reinsurance with another insurer of a liability assumed under
a reinsurance contract. A reinsurer "retrocedes" when it reinsures with another insurer part of a
liability assumed under a reinsurance contract.
(140) "Rider" means an endorsement to:
(a) an insurance policy; or
(b) an insurance certificate.
(141) (a) "Security" means any:
(i) note;
(ii) stock;
(iii) bond;
(iv) debenture;
(v) evidence of indebtedness;
(vi) certificate of interest or participation in any profit-sharing agreement;
(vii) collateral-trust certificate;
(viii) preorganization certificate or subscription;
(ix) transferable share;
(x) investment contract;
(xi) voting trust certificate;
(xii) certificate of deposit for a security;
(xiii) certificate of interest of participation in an oil, gas, or mining title or lease or in
payments out of production under such a title or lease;
(xiv) commodity contract or commodity option;
(xv) any certificate of interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the items listed in
Subsections (141)(a)(i) through (xiv); or
(xvi) any other interest or instrument commonly known as a security.
(b) "Security" does not include:
(i) any insurance or endowment policy or annuity contract under which an insurance
company promises to pay money in a specific lump sum or periodically for life or some other
specified period; or
(ii) a burial certificate or burial contract.
(142) "Self-insurance" means any arrangement under which a person provides for
spreading its own risks by a systematic plan.
(a) Except as provided in this Subsection (142), self-insurance does not include an
arrangement under which a number of persons spread their risks among themselves.
(b) Self-insurance does include an arrangement by which a governmental entity[
employees' employment.
(c) Self-insurance does include an arrangement by which a person with a managed
program of self-insurance and risk management undertakes to indemnify its affiliates, subsidiaries,
directors, officers, or employees for liability or risk which is related to the relationship or
employment.
(d) Self-insurance does not include any arrangement with independent contractors.
(143) "Sell" means to exchange a contract of insurance:
(a) by any means;
(b) for money or its equivalent; and
(c) on behalf of an insurance company.
(144) "Short-term care insurance" means any insurance policy or rider advertised,
marketed, offered, or designed to provide coverage that is similar to long-term care insurance but
that provides coverage for less than 12 consecutive months for each covered person.
(145) "Small employer," in connection with a health benefit plan, means an employer
who, with respect to a calendar year and to a plan year:
(a) employed an average of at least two employees but not more than 50 eligible
employees on each business day during the preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(146) (a) "Subsidiary" of a person means an affiliate controlled by that person either
directly or indirectly through one or more affiliates or intermediaries.
(b) "Wholly owned subsidiary" of a person is a subsidiary of which all of the voting shares
are owned by that person either alone or with its affiliates, except for the minimum number of
shares the law of the subsidiary's domicile requires to be owned by directors or others.
(147) Subject to Subsection (78)(b), "surety insurance" includes:
(a) a guarantee against loss or damage resulting from failure of principals to pay or
perform their obligations to a creditor or other obligee;
(b) bail bond insurance; and
(c) fidelity insurance.
(148) (a) "Surplus" means the excess of assets over the sum of paid-in capital and
liabilities.
(b) (i) "Permanent surplus" means the surplus of a mutual insurer that has been designated
by the insurer as permanent.
(ii) Sections 31A-5-211 , 31A-7-201 , 31A-8-209 , 31A-9-209 , and 31A-14-209 require
that mutuals doing business in this state maintain specified minimum levels of permanent surplus.
(iii) Except for assessable mutuals, the minimum permanent surplus requirement is
essentially the same as the minimum required capital requirement that applies to stock insurers.
(c) "Excess surplus" means:
(i) for life or accident and health insurers, health organizations, and property and casualty
insurers as defined in Section 31A-17-601 , the lesser of:
(A) that amount of an insurer's or health organization's total adjusted capital, as defined in
Subsection (151), that exceeds the product of:
(I) 2.5; and
(II) the sum of the insurer's or health organization's minimum capital or permanent surplus
required under Section 31A-5-211 , 31A-9-209 , or 31A-14-205 ; or
(B) that amount of an insurer's or health organization's total adjusted capital, as defined in
Subsection (151), that exceeds the product of:
(I) 3.0; and
(II) the authorized control level RBC as defined in Subsection 31A-17-601 (8)(a); and
(ii) for monoline mortgage guaranty insurers, financial guaranty insurers, and title
insurers, that amount of an insurer's paid-in-capital and surplus that exceeds the product of:
(A) 1.5; and
(B) the insurer's total adjusted capital required by Subsection 31A-17-609 (1).
(149) "Third party administrator" or "administrator" means any person who collects
charges or premiums from, or who, for consideration, adjusts or settles claims of residents of the
state in connection with insurance coverage, annuities, or service insurance coverage, except:
(a) a union on behalf of its members;
(b) a person administering any:
(i) pension plan subject to the federal Employee Retirement Income Security Act of 1974;
(ii) governmental plan as defined in Section 414(d), Internal Revenue Code; or
(iii) nonelecting church plan as described in Section 410(d), Internal Revenue Code;
(c) an employer on behalf of the employer's employees or the employees of one or more
of the subsidiary or affiliated corporations of the employer;
(d) an insurer licensed under Chapter 5, 7, 8, 9, or 14, but only for a line of insurance for
which the insurer holds a license in this state; or
(e) a person licensed or exempt from licensing under Chapter 23a, Insurance Marketing -
Licensing Producers, Consultants, and Reinsurance Intermediaries, or Chapter 26, Insurance
Adjusters, whose activities are limited to those authorized under the license the person holds or
for which the person is exempt.
(150) "Title insurance" means the insuring, guaranteeing, or indemnifying of owners of
real or personal property or the holders of liens or encumbrances on that property, or others
interested in the property against loss or damage suffered by reason of liens or encumbrances
upon, defects in, or the unmarketability of the title to the property, or invalidity or
unenforceability of any liens or encumbrances on the property.
(151) "Total adjusted capital" means the sum of an insurer's or health organization's
statutory capital and surplus as determined in accordance with:
(a) the statutory accounting applicable to the annual financial statements required to be
filed under Section 31A-4-113 ; and
(b) any other items provided by the RBC instructions, as RBC instructions is defined in
Section 31A-17-601 .
(152) (a) "Trustee" means "director" when referring to the board of directors of a
corporation.
(b) "Trustee," when used in reference to an employee welfare fund, means an individual,
firm, association, organization, joint stock company, or corporation, whether acting individually
or jointly and whether designated by that name or any other, that is charged with or has the
overall management of an employee welfare fund.
(153) (a) "Unauthorized insurer," "unadmitted insurer," or "nonadmitted insurer" means
an insurer:
(i) not holding a valid certificate of authority to do an insurance business in this state; or
(ii) transacting business not authorized by a valid certificate.
(b) "Admitted insurer" or "authorized insurer" means an insurer:
(i) holding a valid certificate of authority to do an insurance business in this state; and
(ii) transacting business as authorized by a valid certificate.
(154) "Underwrite" means the authority to accept or reject risk on behalf of the insurer.
(155) "Vehicle liability insurance" means insurance against liability resulting from or
incident to ownership, maintenance, or use of any land vehicle or aircraft, exclusive of vehicle
comprehensive and vehicle physical damage coverages under Subsection (128).
(156) "Voting security" means a security with voting rights, and includes any security
convertible into a security with a voting right associated with it.
(157) "Workers' compensation insurance" means:
(a) insurance for indemnification of employers against liability for compensation based on:
(i) compensable accidental injuries; and
(ii) occupational disease disability;
(b) employer's liability insurance incidental to workers' compensation insurance and
written in connection with it; and
(c) insurance assuring to the persons entitled to workers' compensation benefits the
compensation provided by law.
Section 5. Section 31A-2-306 is amended to read:
31A-2-306. Judicial review -- Costs.
(1) A person aggrieved by a rule or order of the commissioner, or aggrieved by the
commissioner's failure to act when he has a duty to act, may obtain judicial review.
(2) The court reviewing agency actions governed by this title shall give priority to those
actions and shall hear and determine them promptly.
(3) Costs shall be awarded as in civil cases. If the court finds that the appeal from action
or inaction stemmed from the bad faith or malice of the commissioner, the court may award
reasonable attorney's fees to the prevailing petitioner. Section [
the extent the attorney's fees awarded under this subsection exceed $10,000 for any one appeal.
Section 6. Section 31A-12-107 is amended to read:
31A-12-107. Governmental immunity.
Notwithstanding any other provision of this title, a governmental entity[
insurance to the extent that it is:
(1) covering its own liabilities under Title 63, Chapter [
Act of Utah; or
(2) engaging in other related risk management activities related to the normal course of its
activities.
Section 7. Section 31A-22-305 is amended to read:
31A-22-305. Uninsured and underinsured motorist coverage.
(1) As used in this section, "covered persons" includes:
(a) the named insured;
(b) persons related to the named insured by blood, marriage, adoption, or guardianship,
who are residents of the named insured's household, including those who usually make their home
in the same household but temporarily live elsewhere;
(c) any person occupying or using a motor vehicle:
(i) referred to in the policy; or
(ii) owned by a self-insurer; and
(d) any person who is entitled to recover damages against the owner or operator of the
uninsured or underinsured motor vehicle because of bodily injury to or death of persons under
Subsection (1)(a), (b), or (c).
(2) As used in this section, "uninsured motor vehicle" includes:
(a) (i) a motor vehicle, the operation, maintenance, or use of which is not covered under a
liability policy at the time of an injury-causing occurrence; or
(ii) (A) a motor vehicle covered with lower liability limits than required by Section
31A-22-304 ; and
(B) the motor vehicle described in Subsection (2)(a)(ii)(A) is uninsured to the extent of
the deficiency;
(b) an unidentified motor vehicle that left the scene of an accident proximately caused by
the motor vehicle operator;
(c) a motor vehicle covered by a liability policy, but coverage for an accident is disputed
by the liability insurer for more than 60 days or continues to be disputed for more than 60 days; or
(d) (i) an insured motor vehicle if, before or after the accident, the liability insurer of the
motor vehicle is declared insolvent by a court of competent jurisdiction; and
(ii) the motor vehicle described in Subsection (2)(d)(i) is uninsured only to the extent that
the claim against the insolvent insurer is not paid by a guaranty association or fund.
(3) (a) Uninsured motorist coverage under Subsection 31A-22-302 (1)(b) provides
coverage for covered persons who are legally entitled to recover damages from owners or
operators of uninsured motor vehicles because of bodily injury, sickness, disease, or death.
(b) For new policies written on or after January 1, 2001, the limits of uninsured motorist
coverage shall be equal to the lesser of the limits of the insured's motor vehicle liability coverage
or the maximum uninsured motorist coverage limits available by the insurer under the insured's
motor vehicle policy, unless the insured purchases coverage in a lesser amount by signing an
acknowledgment form provided by the insurer that:
(i) waives the higher coverage;
(ii) reasonably explains the purpose of uninsured motorist coverage; and
(iii) discloses the additional premiums required to purchase uninsured motorist coverage
with limits equal to the lesser of the limits of the insured's motor vehicle liability coverage or the
maximum uninsured motorist coverage limits available by the insurer under the insured's motor
vehicle policy.
(c) Self-insurers, including governmental entities, may elect to provide uninsured motorist
coverage in an amount that is less than their maximum self-insured retention under Subsections
(3)(b) and (4)(a) by issuing a declaratory memorandum or policy statement from the chief
financial officer or chief risk officer that declares the:
(i) self-insured entity's coverage level; and
(ii) process for filing an uninsured motorist claim.
(d) Uninsured motorist coverage may not be sold with limits that are less than the
minimum bodily injury limits for motor vehicle liability policies under Section 31A-22-304 .
(e) The acknowledgment under Subsection (3)(b) continues for that issuer of the
uninsured motorist coverage until the insured, in writing, requests different uninsured motorist
coverage from the insurer.
(f) (i) In conjunction with the first two renewal notices sent after January 1, 2001, for
policies existing on that date, the insurer shall disclose in the same medium as the premium
renewal notice, an explanation of the purpose of uninsured motorist coverage and the costs
associated with increasing the coverage in amounts up to and including the maximum amount
available by the insurer under the insured's motor vehicle policy.
(ii) The disclosure shall be sent to all insureds that carry uninsured motorist coverage
limits in an amount less than the insured's motor vehicle liability policy limits or the maximum
uninsured motorist coverage limits available by the insurer under the insured's motor vehicle
policy.
(4) (a) (i) Except as provided in Subsection (4)(b), the named insured may reject
uninsured motorist coverage by an express writing to the insurer that provides liability coverage
under Subsection 31A-22-302 (1)(a).
(ii) This rejection shall be on a form provided by the insurer that includes a reasonable
explanation of the purpose of uninsured motorist coverage.
(iii) This rejection continues for that issuer of the liability coverage until the insured in
writing requests uninsured motorist coverage from that liability insurer.
(b) (i) All persons, including governmental entities, that are engaged in the business of, or
that accept payment for, transporting natural persons by motor vehicle, and all school districts
that provide transportation services for their students, shall provide coverage for all motor
vehicles used for that purpose, by purchase of a policy of insurance or by self-insurance,
uninsured motorist coverage of at least $25,000 per person and $500,000 per accident.
(ii) This coverage is secondary to any other insurance covering an injured covered person.
(c) Uninsured motorist coverage:
(i) is secondary to the benefits provided by Title 34A, Chapter 2, Workers' Compensation
Act;
(ii) may not be subrogated by the Workers' Compensation insurance carrier;
(iii) may not be reduced by any benefits provided by Workers' Compensation insurance;
(iv) may be reduced by health insurance subrogation only after the covered person has
been made whole;
(v) may not be collected for bodily injury or death sustained by a person:
(A) while committing a violation of Section 41-1a-1314 ;
(B) who, as a passenger in a vehicle, has knowledge that the vehicle is being operated in
violation of Section 41-1a-1314 ; or
(C) while committing a felony; and
(vi) notwithstanding Subsection (4)(c)(v), may be recovered:
(A) for a person under 18 years of age who is injured within the scope of Subsection
(4)(c)(v) but limited to medical and funeral expenses; or
(B) by a law enforcement officer as defined in Section 53-13-103 , who is injured within
the course and scope of the law enforcement officer's duties.
(d) As used in this Subsection (4)[
41-1a-102 .
(5) When a covered person alleges that an uninsured motor vehicle under Subsection
(2)(b) proximately caused an accident without touching the covered person or the motor vehicle
occupied by the covered person, the covered person must show the existence of the uninsured
motor vehicle by clear and convincing evidence consisting of more than the covered person's
testimony.
(6) (a) The limit of liability for uninsured motorist coverage for two or more motor
vehicles may not be added together, combined, or stacked to determine the limit of insurance
coverage available to an injured person for any one accident.
(b) (i) Subsection (6)(a) applies to all persons except a covered person as defined under
Subsection (7)(b)(ii).
(ii) A covered person as defined under Subsection (7)(b)(ii) is entitled to the highest limits
of uninsured motorist coverage afforded for any one motor vehicle that the covered person is the
named insured or an insured family member.
(iii) This coverage shall be in addition to the coverage on the motor vehicle the covered
person is occupying.
(iv) Neither the primary nor the secondary coverage may be set off against the other.
(c) Coverage on a motor vehicle occupied at the time of an accident shall be primary
coverage, and the coverage elected by a person described under Subsections (1)(a) and (b) shall
be secondary coverage.
(7) (a) Uninsured motorist coverage under this section applies to bodily injury, sickness,
disease, or death of covered persons while occupying or using a motor vehicle only if the motor
vehicle is described in the policy under which a claim is made, or if the motor vehicle is a newly
acquired or replacement motor vehicle covered under the terms of the policy. Except as provided
in Subsection (6) or this Subsection (7), a covered person injured in a motor vehicle described in a
policy that includes uninsured motorist benefits may not elect to collect uninsured motorist
coverage benefits from any other motor vehicle insurance policy under which he is a covered
person.
(b) Each of the following persons may also recover uninsured motorist benefits under any
one other policy in which they are described as a "covered person" as defined in Subsection (1):
(i) a covered person injured as a pedestrian by an uninsured motor vehicle; and
(ii) except as provided in Subsection (7)(c), a covered person injured while occupying or
using a motor vehicle that is not owned, leased, or furnished, to the covered person, to the
covered person's spouse, or to the covered person's resident parent or resident sibling.
(c) (i) A covered person may recover benefits from no more than two additional policies,
one additional policy from each parent's household if the covered person is:
(A) a dependent minor of parents who reside in separate households; and
(B) injured while occupying or using a motor vehicle that is not owned, leased, or
furnished to the covered person, the covered person's resident parent, or to the covered person's
resident sibling.
(ii) Each parent's policy under this Subsection (7)(c) is liable only for the percentage of
the damages that the limit of liability of each parent's policy of uninsured motorist coverage bears
to the total of all uninsured coverage applicable to the accident.
(d) A covered person's recovery under any available policies may not exceed the full
amount of damages.
(e) A covered person in Subsection (7)(b) is not barred against making subsequent
elections if recovery is unavailable under previous elections.
(8) (a) As used in this section, "underinsured motor vehicle" includes a motor vehicle, the
operation, maintenance, or use of which is covered under a liability policy at the time of an
injury-causing occurrence, but which has insufficient liability coverage to compensate fully the
injured party for all special and general damages.
(b) The term "underinsured motor vehicle" does not include:
(i) a motor vehicle that is covered under the liability coverage of the same policy that also
contains the underinsured motorist coverage;
(ii) an uninsured motor vehicle as defined in Subsection (2); or
(iii) a motor vehicle owned or leased by the named insured, the named insured's spouse,
or any dependant of the named insured.
(9) (a) (i) Underinsured motorist coverage under Subsection 31A-22-302 (1)(c) provides
coverage for covered persons who are legally entitled to recover damages from owners or
operators of underinsured motor vehicles because of bodily injury, sickness, disease, or death.
(ii) A covered person occupying or using a motor vehicle owned, leased, or furnished to
the covered person, the covered person's spouse, or covered person's resident relative may
recover underinsured benefits only if the motor vehicle is:
(A) described in the policy under which a claim is made; or
(B) a newly acquired or replacement motor vehicle covered under the terms of the policy.
(b) For new policies written on or after January 1, 2001, the limits of underinsured
motorist coverage shall be equal to the lesser of the limits of the insured's motor vehicle liability
coverage or the maximum underinsured motorist coverage limits available by the insurer under the
insured's motor vehicle policy, unless the insured purchases coverage in a lesser amount by
signing an acknowledgment form provided by the insurer that:
(i) waives the higher coverage;
(ii) reasonably explains the purpose of underinsured motorist coverage; and
(iii) discloses the additional premiums required to purchase underinsured motorist
coverage with limits equal to the lesser of the limits of the insured's motor vehicle liability
coverage or the maximum underinsured motorist coverage limits available by the insurer under the
insured's motor vehicle policy.
(c) Self-insurers, including governmental entities, may elect to provide underinsured
motorist coverage in an amount that is less than their maximum self-insured retention under
Subsections (9)(b) and (9)(g) by issuing a declaratory memorandum or policy statement from the
chief financial officer or chief risk officer that declares the:
(i) self-insured entity's coverage level; and
(ii) process for filing an underinsured motorist claim.
(d) Underinsured motorist coverage may not be sold with limits that are less than $10,000
for one person in any one accident and at least $20,000 for two or more persons in any one
accident.
(e) The acknowledgment under Subsection (9)(b) continues for that issuer of the
underinsured motorist coverage until the insured, in writing, requests different underinsured
motorist coverage from the insurer.
(f) The named insured's underinsured motorist coverage, as described in Subsection
(9)(a), is secondary to the liability coverage of an owner or operator of an underinsured motor
vehicle, as described in Subsection (8). Underinsured motorist coverage may not be set off
against the liability coverage of the owner or operator of an underinsured motor vehicle, but shall
be added to, combined with, or stacked upon the liability coverage of the owner or operator of
the underinsured motor vehicle to determine the limit of coverage available to the injured person.
(g) (i) A named insured may reject underinsured motorist coverage by an express writing
to the insurer that provides liability coverage under Subsection 31A-22-302 (1)(a).
(ii) This written rejection shall be on a form provided by the insurer that includes a
reasonable explanation of the purpose of underinsured motorist coverage and when it would be
applicable.
(iii) This rejection continues for that issuer of the liability coverage until the insured in
writing requests underinsured motorist coverage from that liability insurer.
(h) (i) In conjunction with the first two renewal notices sent after January 1, 2001, for
policies existing on that date, the insurer shall disclose in the same medium as the premium
renewal notice, an explanation of the purpose of underinsured motorist coverage and the costs
associated with increasing the coverage in amounts up to and including the maximum amount
available by the insurer under the insured's motor vehicle policy.
(ii) The disclosure shall be sent to all insureds that carry underinsured motorist coverage
limits in an amount less than the insured's motor vehicle liability policy limits or the maximum
underinsured motorist coverage limits available by the insurer under the insured's motor vehicle
policy.
(10) (a) (i) Except as provided in this Subsection (10), a covered person injured in a
motor vehicle described in a policy that includes underinsured motorist benefits may not elect to
collect underinsured motorist coverage benefits from any other motor vehicle insurance policy.
(ii) The limit of liability for underinsured motorist coverage for two or more motor
vehicles may not be added together, combined, or stacked to determine the limit of insurance
coverage available to an injured person for any one accident.
(iii) Subsection (10)(a)(ii) applies to all persons except a covered person as defined under
Subsections (10)(b)(i) and (ii).
(b) (i) Except as provided in Subsection (10)(b)(ii), a covered person injured while
occupying, using, or maintaining a motor vehicle that is not owned, leased, or furnished to the
covered person, the covered person's spouse, or the covered person's resident parent or resident
sibling, may also recover benefits under any one other policy under which they are a covered
person.
(ii) (A) A covered person may recover benefits from no more than two additional policies,
one additional policy from each parent's household if the covered person is:
(I) a dependent minor of parents who reside in separate households; and
(II) injured while occupying or using a motor vehicle that is not owned, leased, or
furnished to the covered person, the covered person's resident parent, or the covered person's
resident sibling.
(B) Each parent's policy under this Subsection (10)(b)(ii) is liable only for the percentage
of the damages that the limit of liability of each parent's policy of underinsured motorist coverage
bears to the total of all underinsured coverage applicable to the accident.
(iii) A covered person's recovery under any available policies may not exceed the full
amount of damages.
(iv) Underinsured coverage on a motor vehicle occupied at the time of an accident shall
be primary coverage, and the coverage elected by a person described under Subsections (1)(a)
and (b) shall be secondary coverage.
(v) The primary and the secondary coverage may not be set off against the other.
(vi) A covered person as defined under Subsection (10)(b)(i) is entitled to the highest
limits of underinsured motorist coverage under only one additional policy per household
applicable to that covered person as a named insured, spouse, or relative.
(vii) A covered injured person is not barred against making subsequent elections if
recovery is unavailable under previous elections.
(c) Underinsured motorist coverage:
(i) is secondary to the benefits provided by Title 34A, Chapter 2, Workers' Compensation
Act;
(ii) may not be subrogated by the Workers' Compensation insurance carrier;
(iii) may not be reduced by any benefits provided by Workers' Compensation insurance;
(iv) may be reduced by health insurance subrogation only after the covered person has
been made whole;
(v) may not be collected for bodily injury or death sustained by a person:
(A) while committing a violation of Section 41-1a-1314 ;
(B) who, as a passenger in a vehicle, has knowledge that the vehicle is being operated in
violation of Section 41-1a-1314 ; or
(C) while committing a felony; and
(vi) notwithstanding Subsection (10)(c)(v), may be recovered:
(A) for a person under 18 years of age who is injured within the scope of Subsection
(10)(c)(v) but limited to medical and funeral expenses; or
(B) by a law enforcement officer as defined in Section 53-13-103 , who is injured within
the course and scope of the law enforcement officer's duties.
(11) The inception of the loss under Subsection 31A-21-313 (1) for underinsured motorist
claims occurs upon the date of the last liability policy payment.
(12) (a) Within five business days after notification in a manner specified by the
department that all liability insurers have tendered their liability policy limits, the underinsured
carrier shall either:
(i) waive any subrogation claim the underinsured carrier may have against the person
liable for the injuries caused in the accident; or
(ii) pay the insured an amount equal to the policy limits tendered by the liability carrier.
(b) If neither option is exercised under Subsection (12)(a), the subrogation claim is
deemed to be waived by the underinsured carrier.
(13) Except as otherwise provided in this section, a covered person may seek, subject to
the terms and conditions of the policy, additional coverage under any policy:
(a) that provides coverage for damages resulting from motor vehicle accidents; and
(b) that is not required to conform to Section 31A-22-302 .
Section 8. Section 63-30a-3 is amended to read:
63-30a-3. Payment of reimbursement of attorneys' fees and court costs.
(1) A request for reimbursement of attorneys' fees and court costs shall be filed in the
manner provided in Sections [
(2) (a) Any reimbursement of attorneys' fees and court costs filed on behalf of an officer
or employee of the state shall be paid from funds appropriated to the department or division that
employed the officer or employee at the time of the act or omission that gave rise to the
indictment or information.
(b) If those funds are unavailable, the reimbursement shall be paid from the General Fund
upon approval by the Board of Examiners and legislative appropriation.
Section 9. Section 63-30d-101 is enacted to read:
63-30d-101. Title, scope, and intent.
(1) This chapter is known as the "Governmental Immunity Act of Utah."
(2) (a) The waivers and retentions of immunity found in this chapter apply to all functions
of government, no matter how labeled.
(b) This single, comprehensive chapter governs all claims against governmental entities or
against their employees or agents arising out of the performance of the employee's duties, within
the scope of employment, or under color of authority.
Section 10. Section 63-30d-102 is enacted to read:
63-30d-102. Definitions.
As used in this chapter:
(1) "Claim" means any asserted demand for or cause of action for money or damages,
whether arising under the common law, under state constitutional provisions, or under state
statutes, against a governmental entity or against an employee in the employee's personal capacity.
(2) (a) "Employee" includes:
(i) a governmental entity's officers, employees, servants, trustees, or commissioners;
(ii) members of a governing body;
(iii) members of a government entity board;
(iv) members of a government entity commission;
(v) members of an advisory body, officers, and employees of a Children's Justice Center
created in accordance with Section 67-5b-104 ;
(vi) student teachers holding a letter of authorization in accordance with Sections
53A-6-103 and 53A-6-104 ;
(vii) educational aides;
(viii) 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;
(ix) volunteers as defined by Subsection 67-20-2 (3); and
(x) tutors.
(b) "Employee" includes all of the positions identified in Subsection (2)(a), whether or not
the individual holding that position receives compensation.
(c) "Employee" does not include an independent contractor.
(3) "Governmental entity" means the state and its political subdivisions as both are
defined in this section.
(4) (a) "Governmental function" means each activity, undertaking, or operation of a
governmental entity.
(b) "Governmental function" includes each activity, undertaking, or operation performed
by a department, agency, employee, agent, or officer of a governmental entity.
(c) "Governmental function" includes a governmental entity's failure to act.
(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, special district, an entity
created by an interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation
Act, 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 each office, department, division,
agency, authority, commission, board, institution, hospital, college, university, Children's Justice
Center, or other instrumentality of the state.
(10) "Willful misconduct" means the intentional doing of a wrongful act, or the wrongful
failure to act, without just cause or excuse, where the actor is aware that his conduct will
probably result in injury.
Section 11. Section 63-30d-201 is enacted to read:
63-30d-201. Immunity of governmental entities from suit.
(1) Except as may be otherwise provided in this chapter, each governmental entity and
each employee of a governmental entity are immune from suit for any injury that results from the
exercise of a governmental function.
(2) Notwithstanding the waiver of immunity provisions of Section 63-30d-301 , a
governmental entity, its officers, and its employees are immune from suit for any injury or damage
resulting from the implementation of or the failure to implement measures to:
(a) 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.
Section 12. Section 63-30d-202 is enacted to read:
63-30d-202. 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 a governmental entity or its
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)(c), an action under this chapter against a
governmental entity for an injury caused by an act or omission that occurs during the performance
of an employee's duties, within the scope of employment, or under color of authority is a plaintiff's
exclusive remedy.
(b) Judgment under this chapter against a governmental entity is a complete bar to any
action by the claimant, based upon the same subject matter, against the employee whose act or
omission gave rise to the claim.
(c) A plaintiff may not bring or pursue any 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 willful misconduct;
(ii) the injury or damage resulted from 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;
(iii) injury or damage resulted from the employee being physically or mentally impaired so
as to be unable to reasonably perform his or her job function because of:
(A) the use of alcohol;
(B) the nonprescribed use of a controlled substance as defined in Section 58-37-4 ; or
(C) the combined influence of alcohol and a nonprescribed controlled substance as
defined by Section 58-37-4 ; or
(iv) 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) Except as permitted in Subsection (3)(c), no employee may be joined or held
personally liable for acts or omissions occurring:
(a) during the performance of the employee's duties;
(b) within the scope of employment; or
(c) under color of authority.
Section 13. Section 63-30d-301 is enacted to read:
63-30d-301. Waivers of immunity -- Exceptions.
(1) (a) Immunity from suit of each governmental entity is waived as to any contractual
obligation.
(b) Actions arising out of contractual rights or obligations are not subject to the
requirements of Sections 63-30d-401 , 63-30d-402 , 63-30d-403 , or 63-30d-601 .
(c) 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.
(2) Immunity from suit of each governmental entity is waived:
(a) as to any action brought to recover, obtain possession of, or quiet title to real or
personal property;
(b) as to any action brought to foreclose mortgages or other liens on real or personal
property, to determine any adverse claim on real or personal property, or to obtain an
adjudication about any mortgage or other lien that the governmental entity may have or claim on
real or personal property;
(c) as to any action based on the negligent destruction, damage, or loss of goods,
merchandise, or other property while it is in the possession of any governmental entity or
employee, if the property was seized for the purpose of forfeiture under any provision of state
law;
(d) subject to Subsection 63-30d-302 (1), as to any action brought under the authority of
Article I, Section 22, of the Utah Constitution, 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;
(e) subject to Subsection 63-30d-302 (2), as to any action brought to recover attorneys'
fees under Sections 63-2-405 and 63-2-802 ; or
(f) for actual damages under Title 67, Chapter 21, Utah's Protection of Public Employees
Act.
(3) (a) Except as provided in Subsection (3)(b), immunity from suit of each governmental
entity is waived as to any injury caused by:
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) any defective or dangerous condition of a public building, structure, dam, reservoir, or
other public improvement.
(b) Immunity is not waived if the injury arises out of, in connection with, or results from:
(i) 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; or
(ii) a latent dangerous or latent defective condition of any public building, structure, dam,
reservoir, or other public improvement.
(4) Immunity from suit of each governmental entity is waived as to any injury proximately
caused by a negligent act or omission of an employee committed within the scope of employment.
(5) Immunity is not waived under Subsections (3) and (4) if the injury arises out of, in
connection with, or results from:
(a) the exercise or performance, or the failure to exercise or perform, a discretionary
function, whether or not the discretion is abused;
(b) 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;
(c) 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;
(d) a failure to make an inspection or by making an inadequate or negligent inspection;
(e) the institution or prosecution of any judicial or administrative proceeding, even if
malicious or without probable cause;
(f) a misrepresentation by an employee whether or not it is negligent or intentional;
(g) riots, unlawful assemblies, public demonstrations, mob violence, and civil
disturbances;
(h) the collection of and assessment of taxes;
(i) the activities of the Utah National Guard;
(j) the incarceration of any person in any state prison, county or city jail, or other place of
legal confinement;
(k) 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;
(l) research or implementation of cloud management or seeding for the clearing of fog;
(m) the management of flood waters, earthquakes, or natural disasters;
(n) the construction, repair, or operation of flood or storm systems;
(o) the operation of an emergency vehicle, while being driven in accordance with the
requirements of Section 41-6-14 ;
(p) the activities of:
(i) providing emergency medical assistance;
(ii) fighting fire;
(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(iv) emergency evacuations;
(v) 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
(vi) intervening during dam emergencies;
(q) the exercise or performance, or the failure to exercise or perform, any function
pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources; or
(r) unauthorized access to government records, data, or electronic information systems by
any person or entity.
Section 14. Section 63-30d-302 is enacted to read:
63-30d-302. Specific remedies -- "Takings" actions -- Government Records Access
and Management Actions.
(1) In any action brought under the authority of Article I, Section 22, of the Utah
Constitution 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, compensation and damages shall be assessed according to the requirements of Title
78, Chapter 34, Eminent Domain.
(2) (a) Notwithstanding Section 63-30d-401 , a notice of claim for attorneys' fees under
Subsection 63-30d-301 (2)(e) may be filed contemporaneously with a petition for review under
Section 63-2-404 .
(b) The provisions of Subsection 63-30d-403 (1), relating to the governmental entity's
response to a claim, and the provisions of 63-30d-601 , requiring an undertaking, do not apply to a
notice of claim for attorneys' fees filed contemporaneously with a petition for review under
Section 63-2-404 .
(c) Any other claim under this chapter that is related to a claim for attorneys' fees under
Subsection 63-30d-301 (2)(e) may be brought contemporaneously with the claim for attorneys'
fees or in a subsequent action.
Section 15. Section 63-30d-401 is enacted to read:
63-30d-401. Claim for injury -- Notice -- Contents -- Service -- Legal disability --
Appointment of guardian ad litem.
(1) (a) Except as provided in Subsection (1)(b), a claim arises when the statute of
limitations that would apply if the claim were against a private person begins to run.
(b) The statute of limitations does not begin to run until a claimant knew, or with the
exercise of reasonable diligence should have known:
(i) that the claimant had a claim against the governmental entity or its employee; and
(ii) the identity of the governmental entity or the name of the employee.
(c) The burden to prove the exercise of reasonable diligence is upon the claimant.
(2) Any person having a claim 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;
(iii) the damages incurred by the claimant so far as they are known; and
(iv) if the claim is being pursued against a governmental employee individually as
provided in Subsection 63-30d-202 (3)(c), the name of the employee.
(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 by hand or by mail according to the requirements of Section
68-3-8.5 to the office of:
(A) the city recorder or town clerk/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 presiding officer or secretary/clerk of the board, when the claim is against a
special district;
(E) the attorney general, when the claim is against the State of Utah;
(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; or
(G) the agent authorized by a governmental entity to receive the notice of claim by the
governmental entity under Subsection (5)(e).
(4) (a) If an injury that may reasonably be expected to result in a claim against a
governmental entity is sustained by a claimant who is under the age of majority or mentally
incompetent, that governmental entity may file a request with the court for the appointment of a
guardian ad litem for the potential claimant.
(b) If a guardian ad litem is appointed, the time for filing a claim under Section
63-30d-402 begins when the order appointing the guardian is issued.
(5) (a) Each governmental entity subject to suit under this chapter shall file a statement
with the Division of Corporations and Commercial Code within the Department of Commerce
containing:
(i) the name and address of the governmental entity;
(ii) the office or agent designated to receive a notice of claim; and
(iii) the address at which it is to be directed and delivered.
(b) Each governmental entity shall update its statement as necessary to ensure that the
information is accurate.
(c) The Division of Corporations and Commercial Code shall develop a form for
governmental entities to complete that provides the information required by Subsection (5)(a).
(d) (i) Newly incorporated municipalities shall file the statement required by Subsection
(5)(a) at the time that the statement of incorporation and boundaries is filed with the lieutenant
governor under Section 10-1-106 .
(ii) Newly incorporated special districts shall file the statement required by Subsection
(5)(a) at the time that the written notice of creation of the district is filed with the State Tax
Commission and State Auditor under Sections 17A-1-102 and 17B-3-215 .
(e) A governmental entity may, in its statement, identify an agent authorized by the entity
to accept notices of claim on its behalf.
(6) The Division of Corporations and Commercial Code shall:
(a) maintain an index of the statements required by this section arranged both
alphabetically by entity and by county of operation; and
(b) make the indices available to the public both electronically and via hard copy.
(7) A governmental entity may not challenge the validity of a notice of claim on the
grounds that it was not directed and delivered to the proper office or agent if the error is caused
by the governmental entity's failure to file or update the statement required by Subsection (5).
Section 16. Section 63-30d-402 is enacted to read:
63-30d-402. Time for filing notice of claim.
A claim against a governmental entity, or against an 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 person and according to
the requirements of Section 63-30d-401 within one year after the claim arises regardless of
whether or not the function giving rise to the claim is characterized as governmental.
Section 17. Section 63-30d-403 is enacted to read:
63-30d-403. Notice of Claim -- Approval or denial by governmental entity or
insurance carrier within 60 days -- remedies for denial of claim.
(1) (a) Within 60 days of the filing of a notice of claim, the governmental entity or its
insurance carrier shall inform the claimant in writing that the claim has either been approved or
denied.
(b) A claim is considered to be denied if, at the end of the 60-day period, the
governmental entity or its insurance carrier has failed to approve or deny the claim.
(2) (a) 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.
(b) 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.
Section 18. Section 63-30d-501 is enacted to read:
63-30d-501. Jurisdiction of district courts over actions.
(1) The district courts 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.
Section 19. Section 63-30d-502 is enacted to read:
63-30d-502. Venue of actions.
(1) Actions against the state may be brought in the county in which the claim arose or in
Salt Lake County.
(2) (a) 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.
(b) Leave may be granted ex parte.
(3) 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.
Section 20. Section 63-30d-601 is enacted to read:
63-30d-601. Actions governed by Utah Rules of Civil Procedure -- Undertaking
required.
(1) An action brought under this chapter shall be governed by the Utah Rules of Civil
Procedure to the extent that they are consistent with this chapter.
(2) At the time the action is filed, the plaintiff shall file an undertaking in a sum fixed by
the court that is:
(a) not less than $300; and
(b) 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.
Section 21. Section 63-30d-602 is enacted to read:
63-30d-602. Compromise and settlement of claims.
(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 compromise and
settle any action against the state for which the Risk Management Fund may be liable:
(a) on the risk manager's own authority, if the amount of the settlement is $25,000 or less;
(b) with the concurrence of the attorney general or the attorney general's representative
and the executive director of the Department of Administrative Services if the amount of the
settlement is $25,000.01 to $100,000; or
(c) by complying with the procedures and requirements of Title 63, Chapter 38b, State
Settlement Agreements, if the amount of the settlement is more than $100,000.
Section 22. Section 63-30d-603 is enacted to read:
63-30d-603. Exemplary or punitive damages prohibited -- Governmental entity
exempt from execution, attachment, or garnishment.
(1) (a) A judgment may not be rendered against a governmental entity for exemplary or
punitive damages.
(b) If a governmental entity would be required to pay the judgment under Section
63-30d-902 or 63-30d-903 , the governmental entity shall pay any judgment or portion of any
judgment entered against its employee in the employee's personal capacity even if the judgment is
for or includes exemplary or punitive damages.
(2) Execution, attachment, or garnishment may not issue against a governmental entity.
Section 23. Section 63-30d-604 is enacted to read:
63-30d-604. Limitation of judgments against governmental entity or employee --
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 $553,500 for one person in any one occurrence, or $1,107,000 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 $553,500 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 $221,400 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 2003; 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 after 2004, 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.
Section 24. Section 63-30d-701 is enacted to read:
63-30d-701. Payment of claim or judgment against state -- Presentment for
payment.
(1) (a) Each claim, as defined by Subsection 63-30d-102 (1), that is approved by the state
or any final judgment obtained against the state shall be presented for payment to:
(i) the state risk manager; or
(ii) the office, agency, institution, or other instrumentality involved, if payment by that
instrumentality is otherwise permitted by law.
(b) If payment of the claim is not authorized by law, the judgment or claim shall be
presented to the board of examiners for action as provided in Section 63-6-10 .
(c) If a judgment against the state is reduced by the operation of Section 63-30d-604 , the
claimant may submit the excess claim to the board of examiners.
Section 25. Section 63-30d-702 is enacted to read:
63-30d-702. Payment of claim or judgment against political subdivision --
Procedure by governing body -- payment options.
(1) (a) Each claim approved by a political subdivision or any final judgment obtained
against a political subdivision shall be submitted to the governing body of the political subdivision.
(b) The governing body shall pay the claim immediately from the general funds of the
political subdivision unless:
(i) the funds are appropriated to some other use or restricted by law or contract for other
purposes; or
(ii) the political subdivision opts to pay the claim or award in installments under
Subsection (2).
(2) 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
whatever other installments that are agreeable to the claimant.
Section 26. Section 63-30d-703 is enacted to read:
63-30d-703. 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:
(1) making payment of claims against the cooperating subdivisions when they become
payable under this chapter; or
(2) for the purpose of purchasing liability insurance to protect the cooperating
subdivisions from any or all risks created by this chapter.
Section 27. Section 63-30d-704 is enacted to read:
63-30d-704. Tax levy by political subdivisions for payment of claims, judgments, or
insurance premiums.
(1) Notwithstanding any provision of law to the contrary, a political subdivision may levy
an annual property tax sufficient to pay:
(a) any claim, settlement, or judgment;
(b) the costs to defend against any claim, settlement, or judgment; or
(c) for the establishment and maintenance of a reserve fund for the payment of claims,
settlements, or judgments that may be reasonably anticipated.
(2) (a) The payments authorized to pay for punitive damages or to pay the premium for
authorized insurance 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.
(b) No levy under this section may exceed .0001 per dollar of taxable value of taxable
property.
(c) The revenues derived from this levy may not be used for any purpose other than those
specified in this section.
Section 28. Section 63-30d-801 is enacted to read:
63-30d-801. Insurance -- Self-insurance or purchase of liability insurance by
governmental entity authorized -- Establishment of trust accounts for self-insurance.
(1) Any governmental entity within the state may self-insure, purchase commercial
insurance, or self-insure and purchase excess commercial insurance in excess of the statutory
limits of this chapter against:
(a) any risk created or recognized by this chapter; or
(b) 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.
(b) In creating the trust account, the governmental entity shall ensure that:
(i) the trust account is managed by an independent private trustee; and
(ii) the independent private trustee has authority, with respect to claims covered by the
trust, to:
(A) 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
(B) pay all sums for which the governmental entity may be adjudged liable or for which a
compromise settlement may be agreed upon.
(c) Notwithstanding any law to the contrary, the trust agreement between the
governmental entity and the trustee may authorize the trustee to:
(i) employ counsel to defend actions against the entity and its employees;
(ii) protect and safeguard the assets of the trust;
(iii) provide for claims investigation and adjustment services;
(iv) employ expert witnesses and consultants; and
(v) provide other services and functions that are necessary and proper to carry out the
purposes of the trust.
(d) The monies and interest earned on the trust fund may be invested by following the
procedures and requirements of Title 51, Chapter 7, State Money Management Act, and are
subject to audit by the state auditor.
Section 29. Section 63-30d-802 is enacted to read:
63-30d-802. Insurance -- Liability insurance -- Government vehicles operated by
employees outside scope of employment.
(1) A governmental entity that owns vehicles driven by an employee 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, subject to Subsection (2), considered to provide the driver with the
insurance coverage required by Title 41, Chapter 12a, Financial Responsibility of Motor Vehicle
Owners and Operators Act.
(2) The liability coverages considered provided are the minimum limits under Section
31A-22-304 .
Section 30. Section 63-30d-803 is enacted to read:
63-30d-803. Liability insurance -- Construction of policy not in compliance with
act.
(1) If any insurance policy, rider, or endorsement issued after June 30, 2004 that was
purchased to insure against any risk that may arise as a result of the application of this chapter
contains any condition or provision not in compliance with the requirements of this chapter, that
policy, rider, or endorsement is not invalid, but shall be construed and applied according to the
conditions and provisions that would have applied had the policy, rider, or endorsement been in
full compliance with this chapter, provided that the policy is otherwise valid.
(2) If any insurance policy, rider, or endorsement issued after June 30, 1966 and before
July 1, 2004 that was purchased to insure against any risk that may arise as a result of the
application of this chapter contains any condition or provision not in compliance with the
requirements of the chapter, that policy, rider, or endorsement is not invalid, but shall be
construed and applied according to the conditions and provisions that would have applied had the
policy, rider, or endorsement been in full compliance with this chapter, provided that the policy is
otherwise valid.
Section 31. Section 63-30d-804 is enacted to read:
63-30d-804. Liability insurance -- Methods for purchase or renewal.
(1) Except as provided in Subsection (2), a contract or policy of insurance may be
purchased or renewed under this chapter only upon public bid to be let to the lowest and best
bidder.
(2) The purchase or renewal of insurance by the state shall be conducted in accordance
with the provisions of Title 63, Chapter 56, Utah Procurement Code.
Section 32. Section 63-30d-805 is enacted to read:
63-30d-805. 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 63-30d-902 .
Section 33. Section 63-30d-901 is enacted to read:
63-30d-901. 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) 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 coverage under the Risk Management Fund created by Section 63A-4-201 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.
(c) Notwithstanding Subsection (1)(b), the decision for settlement of monetary claims in
those cases lies with the attorney general and the state risk manager.
(2) (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.
(3) (a) If the Legislative Management Committee, after consultation with the 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.
(4) (a) Notwithstanding the provisions of Section 67-5-3 or any other provision of the
Utah 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.
Section 34. Section 63-30d-902 is enacted to read:
63-30d-902. 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,
including the making of an offer of judgment under Rule 68, Utah Rules of Civil Procedure,
Offers of Judgment, 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; or
(b) that the injury or damage on which the claim was based resulted from conditions set
forth in Subsection 63-30d-202 (3)(c).
(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 any of the
conditions set forth in Subsection (3) are established.
(7) (a) Nothing in this section or Section 63-30d-903 affects the obligation of a
governmental entity to provide insurance coverage according to the requirements of Subsection
41-12a-301 (3) and Section 63-30d-802 .
(b) When a governmental entity declines to defend, or declines to continue to defend, an
action against its employee under any of the conditions set forth in Subsection (3), it shall still
provide coverage up to the amount specified in Section 31A-22-304 .
Section 35. Section 63-30d-903 is enacted to read:
63-30d-903. 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, that the governmental entity is required to pay under Section 63-30d-902 , the
employee may recover from the governmental entity the amount of the payment and the
reasonable costs incurred in the employee's defense.
(2) (a) If a governmental entity does not conduct the defense of an employee against a
claim, or conducts the defense under a reservation of rights as provided in Subsection
63-30d-902 (6), the employee may recover from the governmental entity under Subsection (1) if
the employee can prove that none of the conditions set forth in Subsection 63-30d-202 (3)(c)
applied.
(b) The employee has the burden of proof that none of the conditions set forth in
Subsection 63-30d-202 (3)(c) applied.
Section 36. Section 63-30d-904 is enacted to read:
63-30d-904. Indemnification of governmental entity by employee not required.
If a governmental entity pays all or part of a judgment, compromise, or settlement based
on a claim against the governmental entity or an employee, the employee is not required to
indemnify the governmental entity for the payment.
Section 37. Section 63-56-59 is amended to read:
63-56-59. Jurisdiction of district court.
(1) The district court shall have jurisdiction over an action, whether the action is at law or
in equity, between the state and:
(a) a bidder, offeror, or contractor, prospective or actual, who is aggrieved in connection
with the solicitation or award of a contract;
(b) a person who is subject to a suspension or debarment proceeding; and
(c) a contractor, for any cause of action which arises under, or by virtue of a contract.
(2) The provisions of [
Title 63, Chapter 30d, Part 4, Notice of Claim Against a Governmental Entity or a Government
Employee, and Section 63-30d-601 do not apply to actions brought under this chapter by an
aggrieved party for equitable relief or reasonable costs incurred in preparing or appealing an
unsuccessful bid or offer.
Section 38. Section 76-6-513 is amended to read:
76-6-513. Definitions -- Unlawful dealing of property by a fiduciary -- Penalties.
(1) As used in this section:
(a) "Fiduciary" is as defined in Section 22-1-1 .
(b) "Financial institution" means "depository institution" and "trust company" as defined
in Section 7-1-103 .
(c) "Governmental entity" is as defined in Section [
(d) "Person" does not include a financial institution whose fiduciary functions are
supervised by the Department of Financial Institutions or a federal regulatory agency.
(e) "Property" is as defined in Section 76-6-401 .
(f) "Public monies" is as defined in Section 76-8-401 .
(2) A person is guilty of unlawfully dealing with property by a fiduciary if he deals with
property that has been entrusted to him as a fiduciary, or property of a governmental entity, public
monies, or of a financial institution, in a manner which he knows is a violation of his duty and
which involves substantial risk of loss or detriment to the owner or to a person for whose benefit
the property was entrusted. A violation of this Subsection (2) is punishable under Section
76-6-412 .
(3) (a) A person acting as a fiduciary is guilty of a violation of this subsection if, without
permission of the owner of the property or some other person with authority to give permission,
he pledges as collateral for a personal loan, or as collateral for the benefit of some party, other
than the owner or the person for whose benefit the property was entrusted, the property that has
been entrusted to the fiduciary.
(b) An offense under Subsection (3)(a) is punishable as:
(i) a felony of the second degree if the value of the property wrongfully pledged is or
exceeds $5,000;
(ii) a felony of the third degree if the value of the property wrongfully pledged is or
exceeds $1,000 but is less than $5,000;
(iii) a class A misdemeanor if the value of the property is or exceeds $300, but is less than
$1,000 or the actor has been twice before convicted of theft, robbery, burglary with intent to
commit theft, or unlawful dealing with property by a fiduciary; or
(iv) a class B misdemeanor if the value of the property is less than $300.
Section 39. Section 78-3a-113 (Superseded 07/01/04) is amended to read:
78-3a-113 (Superseded 07/01/04). Minor taken into custody by peace officer,
private citizen, or probation officer -- Grounds -- Notice requirements -- Release or
detention -- Grounds for peace officer to take adult into custody.
(1) A minor may be taken into custody by a peace officer without order of the court if:
(a) in the presence of the officer the minor has violated a state law, federal law, local law,
or municipal ordinance;
(b) there are reasonable grounds to believe the minor has committed an act which if
committed by an adult would be a felony;
(c) the minor is seriously endangered in his surroundings or if the minor seriously
endangers others, and immediate removal appears to be necessary for his protection or the
protection of others;
(d) there are reasonable grounds to believe the minor has run away or escaped from his
parents, guardian, or custodian; or
(e) there is reason to believe the minor is subject to the state's compulsory education law
and that the minor is absent from school without legitimate or valid excuse, subject to Section
53A-11-105 .
(2) (a) A private citizen or a probation officer may take a minor into custody if under the
circumstances he could make a citizen's arrest if the minor was an adult.
(b) A probation officer may also take a minor into custody under Subsection (1) or if the
minor has violated the conditions of probation, if the minor is under the continuing jurisdiction of
the juvenile court or in emergency situations in which a peace officer is not immediately available.
(3) (a) If an officer or other person takes a minor into temporary custody, he shall
without unnecessary delay notify the parents, guardian, or custodian. The minor shall then be
released to the care of his parent or other responsible adult, unless his immediate welfare or the
protection of the community requires his detention.
(b) Before the minor is released, the parent or other person to whom the minor is released
shall be required to sign a written promise on forms supplied by the court to bring the minor to
the court at a time set or to be set by the court.
(4) (a) A minor may not be held in temporary custody by law enforcement any longer
than is reasonably necessary to obtain his name, age, residence, and other necessary information
and to contact his parents, guardian, or custodian.
(b) If the minor is not released under Subsection (3), he shall be taken to a place of
detention or shelter without unnecessary delay.
(5) (a) The person who takes a minor to a detention or shelter facility shall promptly file
with the detention or shelter facility a written report on a form provided by the division stating the
details of the presently alleged offense, the facts which bring the minor within the jurisdiction of
the juvenile court, and the reason the minor was not released by law enforcement.
(b) (i) The designated youth corrections facility staff person shall immediately review the
form and determine, based on the guidelines for detention admissions established by the Division
of Youth Corrections under Sections 62A-7-104 and 62A-7-205 , whether to admit the minor to
secure detention, admit the minor to home detention, place the minor in a placement other than
detention, or return the minor home upon written promise to bring the minor to the court at a
time set, or without restriction.
(ii) If the designated youth corrections facility staff person determines to admit the minor
to home detention, that staff person shall notify the juvenile court of that determination. The
court shall order that notice be provided to the designated persons in the local law enforcement
agency and the school or transferee school, if applicable, which the minor attends of the home
detention. The designated persons may receive the information for purposes of the minor's
supervision and student safety.
(iii) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the notification of home detention is not:
(A) civilly liable except when disclosure constitutes fraud or [
as provided in Section [
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of
Section 63-2-801 .
(c) A minor may not be admitted to detention unless the minor is detainable based on the
guidelines or the minor has been brought to detention pursuant to a judicial order or division
warrant pursuant to Subsection 62A-7-112 (8).
(d) If a minor taken to detention does not qualify for admission under the guidelines
established by the division under Sections 62A-7-104 and 62A-7-205 , detention staff shall arrange
appropriate placement.
(e) If a minor is taken into custody and admitted to a secure detention or shelter facility,
facility staff shall immediately notify the minor's parents, guardian, or custodian and shall promptly
notify the court of the placement.
(f) If the minor is admitted to a secure detention or shelter facility outside the county of
his residence and it is determined in the hearing held under Subsection 78-3a-114 (3) that
detention shall continue, the judge or commissioner shall direct the sheriff of the county of the
minor's residence to transport the minor to a detention or shelter facility as provided in this
section.
(6) A person may be taken into custody by a peace officer without a court order if the
person is in apparent violation of a protective order or if there is reason to believe that a minor is
being abused by the person and any of the situations outlined in Section 77-7-2 exist.
Section 40. Section 78-3a-113 (Effective 07/01/04) is amended to read:
78-3a-113 (Effective 07/01/04). Minor taken into custody by peace officer, private
citizen, or probation officer -- Grounds -- Notice requirements -- Release or detention --
Grounds for peace officer to take adult into custody.
(1) A minor may be taken into custody by a peace officer without order of the court if:
(a) in the presence of the officer the minor has violated a state law, federal law, local law,
or municipal ordinance;
(b) there are reasonable grounds to believe the minor has committed an act which if
committed by an adult would be a felony;
(c) the minor is seriously endangered in his surroundings or if the minor seriously
endangers others, and immediate removal appears to be necessary for his protection or the
protection of others;
(d) there are reasonable grounds to believe the minor has run away or escaped from his
parents, guardian, or custodian; or
(e) there is reason to believe the minor is subject to the state's compulsory education law
and that the minor is absent from school without legitimate or valid excuse, subject to Section
53A-11-105 .
(2) (a) A private citizen or a probation officer may take a minor into custody if under the
circumstances he could make a citizen's arrest if the minor was an adult.
(b) A probation officer may also take a minor into custody under Subsection (1) or if the
minor has violated the conditions of probation, if the minor is under the continuing jurisdiction of
the juvenile court or in emergency situations in which a peace officer is not immediately available.
(3) (a) If an officer or other person takes a minor into temporary custody, he shall
without unnecessary delay notify the parents, guardian, or custodian. The minor shall then be
released to the care of his parent or other responsible adult, unless his immediate welfare or the
protection of the community requires his detention.
(b) Before the minor is released, the parent or other person to whom the minor is released
shall be required to sign a written promise on forms supplied by the court to bring the minor to
the court at a time set or to be set by the court.
(4) (a) A minor may not be held in temporary custody by law enforcement any longer
than is reasonably necessary to obtain his name, age, residence, and other necessary information
and to contact his parents, guardian, or custodian.
(b) If the minor is not released under Subsection (3), he shall be taken to a place of
detention or shelter without unnecessary delay.
(5) (a) The person who takes a minor to a detention or shelter facility shall promptly file
with the detention or shelter facility a written report on a form provided by the division stating the
details of the presently alleged offense, the facts which bring the minor within the jurisdiction of
the juvenile court, and the reason the minor was not released by law enforcement.
(b) (i) The designated youth corrections facility staff person shall immediately review the
form and determine, based on the guidelines for detention admissions established by the Division
of Juvenile Justice Services under Sections 62A-7-104 and 62A-7-205 , whether to admit the
minor to secure detention, admit the minor to home detention, place the minor in a placement
other than detention, or return the minor home upon written promise to bring the minor to the
court at a time set, or without restriction.
(ii) If the designated youth corrections facility staff person determines to admit the minor
to home detention, that staff person shall notify the juvenile court of that determination. The
court shall order that notice be provided to the designated persons in the local law enforcement
agency and the school or transferee school, if applicable, which the minor attends of the home
detention. The designated persons may receive the information for purposes of the minor's
supervision and student safety.
(iii) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the notification of home detention is not:
(A) civilly liable except when disclosure constitutes fraud or [
as provided in Section [
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of
Section 63-2-801 .
(c) A minor may not be admitted to detention unless the minor is detainable based on the
guidelines or the minor has been brought to detention pursuant to a judicial order or division
warrant pursuant to Subsection 62A-7-112 (8).
(d) If a minor taken to detention does not qualify for admission under the guidelines
established by the division under Sections 62A-7-104 and 62A-7-205 , detention staff shall arrange
appropriate placement.
(e) If a minor is taken into custody and admitted to a secure detention or shelter facility,
facility staff shall immediately notify the minor's parents, guardian, or custodian and shall promptly
notify the court of the placement.
(f) If the minor is admitted to a secure detention or shelter facility outside the county of
his residence and it is determined in the hearing held under Subsection 78-3a-114 (3) that
detention shall continue, the judge or commissioner shall direct the sheriff of the county of the
minor's residence to transport the minor to a detention or shelter facility as provided in this
section.
(6) A person may be taken into custody by a peace officer without a court order if the
person is in apparent violation of a protective order or if there is reason to believe that a minor is
being abused by the person and any of the situations outlined in Section 77-7-2 exist.
Section 41. Section 78-3a-114 (Superseded 07/01/04) is amended to read:
78-3a-114 (Superseded 07/01/04). Placement of minor in detention or shelter
facility -- Grounds -- Detention hearings -- Period of detention -- Notice -- Confinement of
minors for criminal proceedings -- Bail laws inapplicable, exception.
(1) (a) A minor may not be placed or kept in a secure detention facility pending court
proceedings unless it is unsafe for the public to leave the minor with his parents, guardian, or
custodian and the minor is detainable based on guidelines promulgated by the Division of Youth
Corrections.
(b) A minor who must be taken from his home but who does not require physical
restriction shall be given temporary care in a shelter facility and may not be placed in a detention
facility.
(c) A minor may not be placed or kept in a shelter facility pending court proceedings
unless it is unsafe for the minor to leave him with his parents, guardian, or custodian.
(2) After admission to a detention facility pursuant to the guidelines established by the
Division of Youth Corrections and immediate investigation by an authorized officer of the court,
the judge or the officer shall order the release of the minor to his parents, guardian, or custodian if
it is found he can be safely returned to their care, either upon written promise to bring the minor
to the court at a time set or without restriction.
(a) If the minor's parent, guardian, or custodian fails to retrieve the minor from a facility
within 24 hours after notification of release, the parent, guardian, or custodian is responsible for
the cost of care for the time the minor remains in the facility.
(b) The facility shall determine the cost of care.
(c) Any money collected under Subsection (2) shall be retained by the Division of Youth
Corrections to recover the cost of care for the time the minor remains in the facility.
(3) (a) When a minor is detained in a detention or shelter facility, the parents or guardian
shall be informed by the person in charge of the facility that they have the right to a prompt
hearing in court to determine whether the minor is to be further detained or released.
(b) Detention hearings shall be held by the judge or by a commissioner.
(c) The court may, at any time, order the release of the minor, whether a detention
hearing is held or not.
(d) If the minor is released, and the minor remains in the facility, because the parents,
guardian, or custodian fails to retrieve the minor, the parents, guardian, or custodian shall be
responsible for the cost of care as provided in Subsections (2)(a), (b), and (c).
(4) (a) A minor may not be held in a detention facility longer than 48 hours prior to a
detention hearing, excluding weekends and holidays, unless the court has entered an order for
continued detention.
(b) A minor may not be held in a shelter facility longer than 48 hours prior to a shelter
hearing, excluding weekends and holidays, unless a court order for extended shelter has been
entered by the court after notice to all parties described in Section 78-3a-306 .
(c) A hearing for detention or shelter may not be waived. Detention staff shall provide
the court with all information received from the person who brought the minor to the detention
facility.
(d) If the court finds at a detention hearing that it is not safe to release the minor, the
judge or commissioner may order the minor to be held in the facility or be placed in another
appropriate facility, subject to further order of the court.
(e) (i) After a detention hearing has been held, only the court may release a minor from
detention. If a minor remains in a detention facility, periodic reviews shall be held pursuant to the
Utah State Juvenile Court Rules of Practice and Procedure to ensure that continued detention is
necessary.
(ii) If the court orders home detention, it shall direct that notice of its order be provided
to designated persons in the appropriate local law enforcement agency and the school or
transferee school, if applicable, which the minor attends. The designated persons may receive the
information for purposes of the minor's supervision and student safety.
(iii) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or [
misconduct as provided in Section [
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of
Section 63-2-801 .
(5) A minor may not be held in a detention facility, following a dispositional order of the
court for nonsecure substitute care as defined in Section 62A-4a-101 , or for community-based
placement under Section 62A-7-101 for longer than 72 hours, excluding weekends and holidays.
The period of detention may be extended by the court for one period of seven calendar days if:
(a) the Division of Youth Corrections or another agency responsible for placement files a
written petition with the court requesting the extension and setting forth good cause; and
(b) the court enters a written finding that it is in the best interests of both the minor and
the community to extend the period of detention.
(6) The agency requesting an extension shall promptly notify the detention facility that a
written petition has been filed.
(7) The court shall promptly notify the detention facility regarding its initial disposition
and any ruling on a petition for an extension, whether granted or denied.
(8) (a) A minor under 16 years of age may not be held in a jail, lockup, or other place for
adult detention except as provided by Section 62A-7-201 or unless certified as an adult pursuant
to Section 78-3a-603 . The provisions of Section 62A-7-201 regarding confinement facilities
apply to this Subsection (8).
(b) A minor 16 years of age or older whose conduct or condition endangers the safety or
welfare of others in the detention facility for minors may, by court order that specifies the reasons,
be detained in another place of confinement considered appropriate by the court, including a jail
or other place of confinement for adults. However, a secure youth corrections facility is not an
appropriate place of confinement for detention purposes under this section.
(9) A sheriff, warden, or other official in charge of a jail or other facility for the detention
of adult offenders or persons charged with crime shall immediately notify the juvenile court when
a minor who is or appears to be under 18 years of age is received at the facility and shall make
arrangements for the transfer of the minor to a detention facility, unless otherwise ordered by the
juvenile court.
(10) This section does not apply to a minor who is brought to the adult facility under
charges pursuant to Section 78-3a-602 or by order of the juvenile court to be held for criminal
proceedings in the district court under Section 78-3a-603 .
(11) A minor held for criminal proceedings under Section 78-3a-602 or 78-3a-603 may be
detained in a jail or other place of detention used for adults charged with crime.
(12) Provisions of law regarding bail are not applicable to minors detained or taken into
custody under this chapter, except that bail may be allowed:
(a) if a minor who need not be detained lives outside this state; or
(b) when a minor who need not be detained comes within one of the classes in Subsection
78-3a-503 (11).
(13) Section 76-8-418 is applicable to a minor who willfully and intentionally commits an
act against a jail or other place of confinement, including a Division of Youth Corrections
detention, shelter, or secure confinement facility which would be a third degree felony if
committed by an adult.
Section 42. Section 78-3a-114 (Effective 07/01/04) is amended to read:
78-3a-114 (Effective 07/01/04). Placement of minor in detention or shelter facility --
Grounds -- Detention hearings -- Period of detention -- Notice -- Confinement of minors for
criminal proceedings -- Bail laws inapplicable, exception.
(1) (a) A minor may not be placed or kept in a secure detention facility pending court
proceedings unless it is unsafe for the public to leave the minor with his parents, guardian, or
custodian and the minor is detainable based on guidelines promulgated by the Division of Juvenile
Justice Services.
(b) A minor who must be taken from his home but who does not require physical
restriction shall be given temporary care in a shelter facility and may not be placed in a detention
facility.
(c) A minor may not be placed or kept in a shelter facility pending court proceedings
unless it is unsafe for the minor to leave him with his parents, guardian, or custodian.
(2) After admission to a detention facility pursuant to the guidelines established by the
Division of Juvenile Justice Services and immediate investigation by an authorized officer of the
court, the judge or the officer shall order the release of the minor to his parents, guardian, or
custodian if it is found he can be safely returned to their care, either upon written promise to bring
the minor to the court at a time set or without restriction.
(a) If the minor's parent, guardian, or custodian fails to retrieve the minor from a facility
within 24 hours after notification of release, the parent, guardian, or custodian is responsible for
the cost of care for the time the minor remains in the facility.
(b) The facility shall determine the cost of care.
(c) Any money collected under this Subsection (2) shall be retained by the Division of
Juvenile Justice Services to recover the cost of care for the time the minor remains in the facility.
(3) (a) When a minor is detained in a detention or shelter facility, the parents or guardian
shall be informed by the person in charge of the facility that they have the right to a prompt
hearing in court to determine whether the minor is to be further detained or released.
(b) Detention hearings shall be held by the judge or by a commissioner.
(c) The court may, at any time, order the release of the minor, whether a detention
hearing is held or not.
(d) If the minor is released, and the minor remains in the facility, because the parents,
guardian, or custodian fails to retrieve the minor, the parents, guardian, or custodian shall be
responsible for the cost of care as provided in Subsections (2)(a), (b), and (c).
(4) (a) A minor may not be held in a detention facility longer than 48 hours prior to a
detention hearing, excluding weekends and holidays, unless the court has entered an order for
continued detention.
(b) A minor may not be held in a shelter facility longer than 48 hours prior to a shelter
hearing, excluding weekends and holidays, unless a court order for extended shelter has been
entered by the court after notice to all parties described in Section 78-3a-306 .
(c) A hearing for detention or shelter may not be waived. Detention staff shall provide
the court with all information received from the person who brought the minor to the detention
facility.
(d) If the court finds at a detention hearing that it is not safe to release the minor, the
judge or commissioner may order the minor to be held in the facility or be placed in another
appropriate facility, subject to further order of the court.
(e) (i) After a detention hearing has been held, only the court may release a minor from
detention. If a minor remains in a detention facility, periodic reviews shall be held pursuant to the
Utah State Juvenile Court Rules of Practice and Procedure to ensure that continued detention is
necessary.
(ii) If the court orders home detention, it shall direct that notice of its order be provided
to designated persons in the appropriate local law enforcement agency and the school or
transferee school, if applicable, which the minor attends. The designated persons may receive the
information for purposes of the minor's supervision and student safety.
(iii) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or [
misconduct as provided in Section [
(B) civilly or criminally liable except when disclosure constitutes a knowing violation of
Section 63-2-801 .
(5) A minor may not be held in a detention facility, following a dispositional order of the
court for nonsecure substitute care as defined in Section 62A-4a-101 , or for community-based
placement under Section 62A-7-101 for longer than 72 hours, excluding weekends and holidays.
The period of detention may be extended by the court for one period of seven calendar days if:
(a) the Division of Juvenile Justice Services or another agency responsible for placement
files a written petition with the court requesting the extension and setting forth good cause; and
(b) the court enters a written finding that it is in the best interests of both the minor and
the community to extend the period of detention.
(6) The agency requesting an extension shall promptly notify the detention facility that a
written petition has been filed.
(7) The court shall promptly notify the detention facility regarding its initial disposition
and any ruling on a petition for an extension, whether granted or denied.
(8) (a) A minor under 16 years of age may not be held in a jail, lockup, or other place for
adult detention except as provided by Section 62A-7-201 or unless certified as an adult pursuant
to Section 78-3a-603 . The provisions of Section 62A-7-201 regarding confinement facilities
apply to this Subsection (8).
(b) A minor 16 years of age or older whose conduct or condition endangers the safety or
welfare of others in the detention facility for minors may, by court order that specifies the reasons,
be detained in another place of confinement considered appropriate by the court, including a jail
or other place of confinement for adults. However, a secure youth corrections facility is not an
appropriate place of confinement for detention purposes under this section.
(9) A sheriff, warden, or other official in charge of a jail or other facility for the detention
of adult offenders or persons charged with crime shall immediately notify the juvenile court when
a minor who is or appears to be under 18 years of age is received at the facility and shall make
arrangements for the transfer of the minor to a detention facility, unless otherwise ordered by the
juvenile court.
(10) This section does not apply to a minor who is brought to the adult facility under
charges pursuant to Section 78-3a-602 or by order of the juvenile court to be held for criminal
proceedings in the district court under Section 78-3a-603 .
(11) A minor held for criminal proceedings under Section 78-3a-602 or 78-3a-603 may be
detained in a jail or other place of detention used for adults charged with crime.
(12) Provisions of law regarding bail are not applicable to minors detained or taken into
custody under this chapter, except that bail may be allowed:
(a) if a minor who need not be detained lives outside this state; or
(b) when a minor who need not be detained comes within one of the classes in Subsection
78-3a-503 (11).
(13) Section 76-8-418 is applicable to a minor who willfully and intentionally commits an
act against a jail or other place of confinement, including a Division of Juvenile Justice Services
detention, shelter, or secure confinement facility which would be a third degree felony if
committed by an adult.
Section 43. Section 78-3a-118 (Superseded 07/01/04) is amended to read:
78-3a-118 (Superseded 07/01/04). Adjudication of jurisdiction of juvenile court --
Disposition of cases -- Enumeration of possible court orders -- Considerations of court --
Obtaining DNA sample.
(1) (a) When a minor is found to come within the provisions of Section 78-3a-104 , the
court shall so adjudicate. The court shall make a finding of the facts upon which it bases its
jurisdiction over the minor. However, in cases within the provisions of Subsection 78-3a-104 (1),
findings of fact are not necessary.
(b) If the court adjudicates a minor for a crime of violence or an offense in violation of
Title 76, Chapter 10, Part 5, Weapons, it shall order that notice of the adjudication be provided to
the school superintendent of the district in which the minor resides or attends school. Notice shall
be made to the district superintendent within three days of the adjudication and shall include the
specific offenses for which the minor was adjudicated.
(2) Upon adjudication the court may make the following dispositions by court order:
(a) (i) The court may place the minor on probation or under protective supervision in the
minor's own home and upon conditions determined by the court, including compensatory service
as provided in Section 78-11-20.7 .
(ii) The court may place the minor in state supervision with the probation department of
the court, under the legal custody of:
(A) his parent or guardian;
(B) the Division of Youth Corrections; or
(C) the Division of Child and Family Services.
(iii) If the court orders probation or state supervision, the court shall direct that notice of
its order be provided to designated persons in the local law enforcement agency and the school or
transferee school, if applicable, which the minor attends. The designated persons may receive the
information for purposes of the minor's supervision and student safety.
(iv) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or [
misconduct as provided in Section [
(B) civilly or criminally liable except when the disclosure constitutes a knowing violation
of Section 63-2-801 .
(b) The court may place the minor in the legal custody of a relative or other suitable
person, with or without probation or protective supervision, but the juvenile court may not
assume the function of developing foster home services.
(c) (i) The court may:
(A) vest legal custody of the minor in the Division of Child and Family Services, Division
of Youth Corrections, or the Division of Substance Abuse and Mental Health; and
(B) order the Department of Human Services to provide dispositional recommendations
and services.
(ii) For minors who may qualify for services from two or more divisions within the
Department of Human Services, the court may vest legal custody with the department.
(iii) (A) Minors who are committed to the custody of the Division of Child and Family
Services on grounds other than abuse or neglect are subject to the provisions of Title 78, Chapter
3a, Part 3A, Minors in Custody on Grounds Other Than Abuse or Neglect, and Title 62A,
Chapter 4a, Part 2A, Minors in Custody on Grounds Other Than Abuse or Neglect.
(B) Prior to the court entering an order to place a minor in the custody of the Division of
Child and Family Services on grounds other than abuse or neglect, the court shall provide the
division with notice of the hearing no later than five days before the time specified for the hearing
so the division may attend the hearing.
(C) Prior to committing a minor to the custody of the Division of Child and Family
Services, the court shall make a finding as to what reasonable efforts have been attempted to
prevent the minor's removal from his home.
(d) (i) The court may commit the minor to the Division of Youth Corrections for secure
confinement.
(ii) A minor under the jurisdiction of the court solely on the ground of abuse, neglect, or
dependency under Subsection 78-3a-104 (1)(c) may not be committed to the Division of Youth
Corrections.
(e) The court may commit the minor, subject to the court retaining continuing jurisdiction
over him, to the temporary custody of the Division of Youth Corrections for observation and
evaluation for a period not to exceed 45 days, which period may be extended up to 15 days at the
request of the director of the Division of Youth Corrections.
(f) (i) The court may commit the minor to a place of detention or an alternative to
detention for a period not to exceed 30 days subject to the court retaining continuing jurisdiction
over the minor. This commitment may be stayed or suspended upon conditions ordered by the
court.
(ii) This Subsection (2)(f) applies only to those minors adjudicated for:
(A) an act which if committed by an adult would be a criminal offense; or
(B) contempt of court under Section 78-3a-901 .
(g) The court may vest legal custody of an abused, neglected, or dependent minor in the
Division of Child and Family Services or any other appropriate person in accordance with the
requirements and procedures of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency
Proceedings.
(h) The court may place the minor on a ranch or forestry camp, or similar facility for care
and also for work, if possible, if the person, agency, or association operating the facility has been
approved or has otherwise complied with all applicable state and local laws. A minor placed in a
forestry camp or similar facility may be required to work on fire prevention, forestation and
reforestation, recreational works, forest roads, and on other works on or off the grounds of the
facility and may be paid wages, subject to the approval of and under conditions set by the court.
(i) (A) The court may order the minor to repair, replace, or otherwise make restitution for
damage or loss caused by the minor's wrongful act, including costs of treatment as stated in
Section 78-3a-318 and impose fines in limited amounts.
(B) The court may also require the minor to reimburse an individual, entity, or
governmental agency who offered and paid a reward to a person or persons for providing
information resulting in a court adjudication that the minor is within the jurisdiction of the juvenile
court due to the commission of a criminal offense.
(C) If a minor has been returned to this state under the Interstate Compact on Juveniles,
the court may order the minor to make restitution for costs expended by any governmental entity
for the return.
(j) The court may issue orders necessary for the collection of restitution and fines ordered
by the court, including garnishments, wage withholdings, and executions.
(k) (i) The court may through its probation department encourage the development of
employment or work programs to enable minors to fulfill their obligations under Subsection (2)(i)
and for other purposes considered desirable by the court.
(ii) Consistent with the order of the court, the probation officer may permit the minor
found to be within the jurisdiction of the court to participate in a program of work restitution or
compensatory service in lieu of paying part or all of the fine imposed by the court.
(l) (i) In violations of traffic laws within the court's jurisdiction, the court may, in addition
to any other disposition authorized by this section:
(A) restrain the minor from driving for periods of time the court considers necessary; and
(B) take possession of the minor's driver license.
(ii) The court may enter any other disposition under Subsection (2)(l)(i); however, the
suspension of driving privileges for an offense under Section 78-3a-506 are governed only by
Section 78-3a-506 .
(m) (i) When a minor is found within the jurisdiction of the juvenile court under Section
78-3a-104 because of violating Section 58-37-8 , Title 58, Chapter 37a, Utah Drug Paraphernalia
Act, or Title 58, Chapter 37b, Imitation Controlled Substances Act, the court shall, in addition to
any fines or fees otherwise imposed, order that the minor perform a minimum of 20 hours, but no
more than 100 hours, of compensatory service. Satisfactory completion of an approved substance
abuse prevention or treatment program may be credited by the court as compensatory service
hours.
(ii) When a minor is found within the jurisdiction of the juvenile court under Section
78-3a-104 because of a violation of Section 32A-12-209 or Subsection 76-9-701 (1), the court
may, upon the first adjudication, and shall, upon a second or subsequent adjudication, order that
the minor perform a minimum of 20 hours, but no more than 100 hours of compensatory service,
in addition to any fines or fees otherwise imposed. Satisfactory completion of an approved
substance abuse prevention or treatment program may be credited by the court as compensatory
service hours.
(n) The court may order that the minor be examined or treated by a physician, surgeon,
psychiatrist, or psychologist or that he receive other special care. For these purposes the court
may place the minor in a hospital or other suitable facility.
(o) (i) The court may appoint a guardian for the minor if it appears necessary in the
interest of the minor, and may appoint as guardian a public or private institution or agency in
which legal custody of the minor is vested.
(ii) In placing a minor under the guardianship or legal custody of an individual or of a
private agency or institution, the court shall give primary consideration to the welfare of the
minor. When practicable, the court may take into consideration the religious preferences of the
minor and of the minor's parents.
(p) (i) In support of a decree under Section 78-3a-104 , the court may order reasonable
conditions to be complied with by the parents or guardian, the minor, the minor's custodian, or
any other person who has been made a party to the proceedings. Conditions may include:
(A) parent-time by the parents or one parent;
(B) restrictions on the minor's associates;
(C) restrictions on the minor's occupation and other activities; and
(D) requirements to be observed by the parents or custodian.
(ii) A minor whose parents or guardians successfully complete a family or other
counseling program may be credited by the court for detention, confinement, or probation time.
(q) The court may order the minor to be committed to the physical custody of a local
mental health authority, in accordance with the procedures and requirements of Title 62A,
Chapter 15, Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
Mental Health.
(r) (i) The court may make an order committing a minor within its jurisdiction to the Utah
State Developmental Center if the minor has mental retardation in accordance with the provisions
of Title 62A, Chapter 5, Part 3, Admission to Mental Retardation Facility.
(ii) The court shall follow the procedure applicable in the district courts with respect to
judicial commitments to the Utah State Developmental Center when ordering a commitment
under Subsection (2)(r)(i).
(s) The court may terminate all parental rights upon a finding of compliance with the
provisions of Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
(t) The court may make any other reasonable orders for the best interest of the minor or
as required for the protection of the public, except that a person younger than 18 years of age
may not be committed to jail or prison.
(u) The court may combine the dispositions listed in this section if they are compatible.
(v) Before depriving any parent of custody, the court shall give due consideration to the
rights of parents concerning their minor. The court may transfer custody of a minor to another
person, agency, or institution in accordance with the requirements and procedures of Title 78,
Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
(w) Except as provided in Subsection (2)(y)(i), an order under this section for probation
or placement of a minor with an individual or an agency shall include a date certain for a review of
the case by the court. A new date shall be set upon each review.
(x) In reviewing foster home placements, special attention shall be given to making
adoptable minors available for adoption without delay.
(y) (i) The juvenile court may enter an order of permanent custody and guardianship with
a relative or individual of a minor where the court has previously acquired jurisdiction as a result
of an adjudication of abuse, neglect, or dependency. The juvenile court may enter an order for
child support on behalf of the minor child against the natural or adoptive parents of the child.
(ii) Orders under Subsection (2)(y)(i):
(A) shall remain in effect until the minor reaches majority;
(B) are not subject to review under Section 78-3a-119 ; and
(C) may be modified by petition or motion as provided in Section 78-3a-903 .
(iii) Orders permanently terminating the rights of a parent, guardian, or custodian and
permanent orders of custody and guardianship do not expire with a termination of jurisdiction of
the juvenile court.
(3) In addition to the dispositions described in Subsection (2), when a minor comes within
the court's jurisdiction he may be given a choice by the court to serve in the National Guard in lieu
of other sanctions, provided:
(a) the minor meets the current entrance qualifications for service in the National Guard
as determined by a recruiter, whose determination is final;
(b) the minor is not under the jurisdiction of the court for any act that:
(i) would be a felony if committed by an adult;
(ii) is a violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
(iii) was committed with a weapon; and
(c) the court retains jurisdiction over the minor under conditions set by the court and
agreed upon by the recruiter or the unit commander to which the minor is eventually assigned.
(4) (a) A DNA specimen shall be obtained from a minor who is under the jurisdiction of
the court as described in Subsection 53-10-403 (3). The specimen shall be obtained by designated
employees of the court or, if the minor is in the legal custody of the Division of Youth
Corrections, then by designated employees of the division under Subsection 53-10-404 (5)(b).
(b) The responsible agency shall ensure that employees designated to collect the saliva
DNA specimens receive appropriate training and that the specimens are obtained in accordance
with accepted protocol.
(c) Reimbursements paid under Subsection 53-10-404 (2)(a) shall be placed in the DNA
Specimen Restricted Account created in Section 53-10-407 .
(d) Payment of the reimbursement is second in priority to payments the minor is ordered
to make for restitution under this section and treatment under Section 78-3a-318 .
Section 44. Section 78-3a-118 (Effective 07/01/04) is amended to read:
78-3a-118 (Effective 07/01/04). Adjudication of jurisdiction of juvenile court --
Disposition of cases -- Enumeration of possible court orders -- Considerations of court --
Obtaining DNA sample.
(1) (a) When a minor is found to come within the provisions of Section 78-3a-104 , the
court shall so adjudicate. The court shall make a finding of the facts upon which it bases its
jurisdiction over the minor. However, in cases within the provisions of Subsection 78-3a-104 (1),
findings of fact are not necessary.
(b) If the court adjudicates a minor for a crime of violence or an offense in violation of
Title 76, Chapter 10, Part 5, Weapons, it shall order that notice of the adjudication be provided to
the school superintendent of the district in which the minor resides or attends school. Notice shall
be made to the district superintendent within three days of the adjudication and shall include the
specific offenses for which the minor was adjudicated.
(2) Upon adjudication the court may make the following dispositions by court order:
(a) (i) The court may place the minor on probation or under protective supervision in the
minor's own home and upon conditions determined by the court, including compensatory service
as provided in Section 78-11-20.7 .
(ii) The court may place the minor in state supervision with the probation department of
the court, under the legal custody of:
(A) his parent or guardian;
(B) the Division of Juvenile Justice Services; or
(C) the Division of Child and Family Services.
(iii) If the court orders probation or state supervision, the court shall direct that notice of
its order be provided to designated persons in the local law enforcement agency and the school or
transferee school, if applicable, which the minor attends. The designated persons may receive the
information for purposes of the minor's supervision and student safety.
(iv) Any employee of the local law enforcement agency and the school which the minor
attends who discloses the court's order of probation is not:
(A) civilly liable except when the disclosure constitutes fraud or [
misconduct as provided in Section [
(B) civilly or criminally liable except when the disclosure constitutes a knowing violation
of Section 63-2-801 .
(b) The court may place the minor in the legal custody of a relative or other suitable
person, with or without probation or protective supervision, but the juvenile court may not
assume the function of developing foster home services.
(c) (i) The court may:
(A) vest legal custody of the minor in the Division of Child and Family Services, Division
of Juvenile Justice Services, or the Division of Substance Abuse and Mental Health; and
(B) order the Department of Human Services to provide dispositional recommendations
and services.
(ii) For minors who may qualify for services from two or more divisions within the
Department of Human Services, the court may vest legal custody with the department.
(iii) (A) Minors who are committed to the custody of the Division of Child and Family
Services on grounds other than abuse or neglect are subject to the provisions of Title 78, Chapter
3a, Part 3A, Minors in Custody on Grounds Other Than Abuse or Neglect, and Title 62A,
Chapter 4a, Part 2A, Minors in Custody on Grounds Other Than Abuse or Neglect.
(B) Prior to the court entering an order to place a minor in the custody of the Division of
Child and Family Services on grounds other than abuse or neglect, the court shall provide the
division with notice of the hearing no later than five days before the time specified for the hearing
so the division may attend the hearing.
(C) Prior to committing a minor to the custody of the Division of Child and Family
Services, the court shall make a finding as to what reasonable efforts have been attempted to
prevent the minor's removal from his home.
(d) (i) The court may commit the minor to the Division of Juvenile Justice Services for
secure confinement.
(ii) A minor under the jurisdiction of the court solely on the ground of abuse, neglect, or
dependency under Subsection 78-3a-104 (1)(c) may not be committed to the Division of Juvenile
Justice Services.
(e) The court may commit the minor, subject to the court retaining continuing jurisdiction
over him, to the temporary custody of the Division of Juvenile Justice Services for observation
and evaluation for a period not to exceed 45 days, which period may be extended up to 15 days at
the request of the director of the Division of Juvenile Justice Services.
(f) (i) The court may commit the minor to a place of detention or an alternative to
detention for a period not to exceed 30 days subject to the court retaining continuing jurisdiction
over the minor. This commitment may be stayed or suspended upon conditions ordered by the
court.
(ii) This Subsection (2)(f) applies only to those minors adjudicated for:
(A) an act which if committed by an adult would be a criminal offense; or
(B) contempt of court under Section 78-3a-901 .
(g) The court may vest legal custody of an abused, neglected, or dependent minor in the
Division of Child and Family Services or any other appropriate person in accordance with the
requirements and procedures of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency
Proceedings.
(h) The court may place the minor on a ranch or forestry camp, or similar facility for care
and also for work, if possible, if the person, agency, or association operating the facility has been
approved or has otherwise complied with all applicable state and local laws. A minor placed in a
forestry camp or similar facility may be required to work on fire prevention, forestation and
reforestation, recreational works, forest roads, and on other works on or off the grounds of the
facility and may be paid wages, subject to the approval of and under conditions set by the court.
(i) (A) The court may order the minor to repair, replace, or otherwise make restitution for
damage or loss caused by the minor's wrongful act, including costs of treatment as stated in
Section 78-3a-318 and impose fines in limited amounts.
(B) The court may also require the minor to reimburse an individual, entity, or
governmental agency who offered and paid a reward to a person or persons for providing
information resulting in a court adjudication that the minor is within the jurisdiction of the juvenile
court due to the commission of a criminal offense.
(C) If a minor has been returned to this state under the Interstate Compact on Juveniles,
the court may order the minor to make restitution for costs expended by any governmental entity
for the return.
(j) The court may issue orders necessary for the collection of restitution and fines ordered
by the court, including garnishments, wage withholdings, and executions.
(k) (i) The court may through its probation department encourage the development of
employment or work programs to enable minors to fulfill their obligations under Subsection (2)(i)
and for other purposes considered desirable by the court.
(ii) Consistent with the order of the court, the probation officer may permit the minor
found to be within the jurisdiction of the court to participate in a program of work restitution or
compensatory service in lieu of paying part or all of the fine imposed by the court.
(l) (i) In violations of traffic laws within the court's jurisdiction, the court may, in addition
to any other disposition authorized by this section:
(A) restrain the minor from driving for periods of time the court considers necessary; and
(B) take possession of the minor's driver license.
(ii) The court may enter any other disposition under Subsection (2)(l)(i); however, the
suspension of driving privileges for an offense under Section 78-3a-506 are governed only by
Section 78-3a-506 .
(m) (i) When a minor is found within the jurisdiction of the juvenile court under Section
78-3a-104 because of violating Section 58-37-8 , Title 58, Chapter 37a, Utah Drug Paraphernalia
Act, or Title 58, Chapter 37b, Imitation Controlled Substances Act, the court shall, in addition to
any fines or fees otherwise imposed, order that the minor perform a minimum of 20 hours, but no
more than 100 hours, of compensatory service. Satisfactory completion of an approved substance
abuse prevention or treatment program may be credited by the court as compensatory service
hours.
(ii) When a minor is found within the jurisdiction of the juvenile court under Section
78-3a-104 because of a violation of Section 32A-12-209 or Subsection 76-9-701 (1), the court
may, upon the first adjudication, and shall, upon a second or subsequent adjudication, order that
the minor perform a minimum of 20 hours, but no more than 100 hours of compensatory service,
in addition to any fines or fees otherwise imposed. Satisfactory completion of an approved
substance abuse prevention or treatment program may be credited by the court as compensatory
service hours.
(n) The court may order that the minor be examined or treated by a physician, surgeon,
psychiatrist, or psychologist or that he receive other special care. For these purposes the court
may place the minor in a hospital or other suitable facility.
(o) (i) The court may appoint a guardian for the minor if it appears necessary in the
interest of the minor, and may appoint as guardian a public or private institution or agency in
which legal custody of the minor is vested.
(ii) In placing a minor under the guardianship or legal custody of an individual or of a
private agency or institution, the court shall give primary consideration to the welfare of the
minor. When practicable, the court may take into consideration the religious preferences of the
minor and of the minor's parents.
(p) (i) In support of a decree under Section 78-3a-104 , the court may order reasonable
conditions to be complied with by the parents or guardian, the minor, the minor's custodian, or
any other person who has been made a party to the proceedings. Conditions may include:
(A) parent-time by the parents or one parent;
(B) restrictions on the minor's associates;
(C) restrictions on the minor's occupation and other activities; and
(D) requirements to be observed by the parents or custodian.
(ii) A minor whose parents or guardians successfully complete a family or other
counseling program may be credited by the court for detention, confinement, or probation time.
(q) The court may order the minor to be committed to the physical custody of a local
mental health authority, in accordance with the procedures and requirements of Title 62A,
Chapter 15, Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
Mental Health.
(r) (i) The court may make an order committing a minor within its jurisdiction to the Utah
State Developmental Center if the minor has mental retardation in accordance with the provisions
of Title 62A, Chapter 5, Part 3, Admission to Mental Retardation Facility.
(ii) The court shall follow the procedure applicable in the district courts with respect to
judicial commitments to the Utah State Developmental Center when ordering a commitment
under Subsection (2)(r)(i).
(s) The court may terminate all parental rights upon a finding of compliance with the
provisions of Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
(t) The court may make any other reasonable orders for the best interest of the minor or
as required for the protection of the public, except that a person younger than 18 years of age
may not be committed to jail or prison.
(u) The court may combine the dispositions listed in this section if they are compatible.
(v) Before depriving any parent of custody, the court shall give due consideration to the
rights of parents concerning their minor. The court may transfer custody of a minor to another
person, agency, or institution in accordance with the requirements and procedures of Title 78,
Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
(w) Except as provided in Subsection (2)(y)(i), an order under this section for probation
or placement of a minor with an individual or an agency shall include a date certain for a review of
the case by the court. A new date shall be set upon each review.
(x) In reviewing foster home placements, special attention shall be given to making
adoptable minors available for adoption without delay.
(y) (i) The juvenile court may enter an order of permanent custody and guardianship with
a relative or individual of a minor where the court has previously acquired jurisdiction as a result
of an adjudication of abuse, neglect, or dependency. The juvenile court may enter an order for
child support on behalf of the minor child against the natural or adoptive parents of the child.
(ii) Orders under Subsection (2)(y)(i):
(A) shall remain in effect until the minor reaches majority;
(B) are not subject to review under Section 78-3a-119 ; and
(C) may be modified by petition or motion as provided in Section 78-3a-903 .
(iii) Orders permanently terminating the rights of a parent, guardian, or custodian and
permanent orders of custody and guardianship do not expire with a termination of jurisdiction of
the juvenile court.
(3) In addition to the dispositions described in Subsection (2), when a minor comes within
the court's jurisdiction he may be given a choice by the court to serve in the National Guard in lieu
of other sanctions, provided:
(a) the minor meets the current entrance qualifications for service in the National Guard
as determined by a recruiter, whose determination is final;
(b) the minor is not under the jurisdiction of the court for any act that:
(i) would be a felony if committed by an adult;
(ii) is a violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
(iii) was committed with a weapon; and
(c) the court retains jurisdiction over the minor under conditions set by the court and
agreed upon by the recruiter or the unit commander to which the minor is eventually assigned.
(4) (a) A DNA specimen shall be obtained from a minor who is under the jurisdiction of
the court as described in Subsection 53-10-403 (3). The specimen shall be obtained by designated
employees of the court or, if the minor is in the legal custody of the Division of Juvenile Justice
Services, then by designated employees of the division under Subsection 53-10-404 (5)(b).
(b) The responsible agency shall ensure that employees designated to collect the saliva
DNA specimens receive appropriate training and that the specimens are obtained in accordance
with accepted protocol.
(c) Reimbursements paid under Subsection 53-10-404 (2)(a) shall be placed in the DNA
Specimen Restricted Account created in Section 53-10-407 .
(d) Payment of the reimbursement is second in priority to payments the minor is ordered
to make for restitution under this section and treatment under Section 78-3a-318 .
Section 45. Section 78-17-3 is amended to read:
78-17-3. Liability imposed and limitations -- Defenses -- Limitations on damages.
(1) Except as provided in this section, any person who owns, holds under license,
transports, ships, stores, or disposes of nuclear material is liable, without regard to the conduct of
any other person, for harm from nuclear incidents arising in connection with or resulting from
such ownership, transportation, shipping, storage, or disposal.
(2) Except as provided in this section, any person who owns, designs, constructs,
operates, or maintains facilities, structures, vehicles, or equipment used for handling,
transportation, shipment, storage, or disposal of nuclear material is liable, without regard to the
conduct of any other person, for harm from nuclear incidents arising in connection with or
resulting from such ownership, design, construction, operation, and maintenance.
(3) Liability established by this chapter shall only be imposed if a court of competent
jurisdiction finds that:
(a) the nuclear incident which is the basis for the suit is covered by existing financial
protection undertaken pursuant to 42 U.S.C. Sec. 2210; and
(b) a person who is liable under this chapter is a person indemnified as defined in 42
U.S.C. Sec. 2014.
(4) Immunity of the state, its political subdivisions, or the agencies of either from suit are
only waived with respect to a suit arising from a nuclear incident:
(a) in accordance with [
Governmental Immunity Act of Utah; or
(b) when brought by a person suffering harm.
(5) The conduct of the person suffering harm is not a defense to liability, except that this
section does not preclude any defense based on:
(a) the claimant's knowing failure to mitigate damages related to any injury or damage to
the claimant or the claimant's property; or
(b) an incident involving nuclear material that is knowingly and wrongfully caused by the
claimant.
(6) No person may collect punitive or exemplary damages under this chapter.
Section 46. Section 78-19-1 is amended to read:
78-19-1. Definitions.
As used in this chapter:
(1) "Damage or injury" includes physical, nonphysical, economic, and noneconomic
damage.
(2) "Financially secure source of recovery" means that, at the time of the incident, a
nonprofit organization:
(a) has an insurance policy in effect that covers the activities of the volunteer and has an
insurance limit of not less than the limits established under the [
Act of Utah in Section [
(b) has established a qualified trust with a value not less than the combined limits for
property damage and single occurrence liability established under the [
Immunity Act of Utah in Section [
(3) "Nonprofit organization" means any organization, other than a public entity, described
in Section 501 (c) of the Internal Revenue Code of 1986 and exempt from tax under Section 501
(a) of that code.
(4) "Public entity" has the same meaning as defined in Section 63-30b-1 .
(5) "Qualified trust" means a trust held for the purpose of compensating claims for
damages or injury in a trust company licensed to do business in this state under the provisions of
Title 7, Chapter 5, Trust Business.
(6) "Reimbursements" means, with respect to each nonprofit organization:
(a) compensation or honoraria totaling less than $300 per calendar year; and
(b) payment of expenses actually incurred.
(7) (a) "Volunteer" means an individual performing services for a nonprofit organization
who does not receive anything of value from that nonprofit organization for those services except
reimbursements.
(b) "Volunteer" includes a volunteer serving as a director, officer, trustee, or direct
service volunteer.
(c) "Volunteer" does not include an individual performing services for a public entity to
the extent the services are within the scope of Title 63, Chapter 30b, Immunity for Persons
Performing Voluntary Services or Title 67, Chapter 20, Volunteer Government Workers Act.
Section 47. Repealer.
This bill repeals:
Section 63-30-1, Short title.
Section 63-30-2, Definitions.
Section 63-30-3, Immunity of governmental entities from suit.
Section 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.
Section 63-30-5, Waiver of immunity as to contractual obligations.
Section 63-30-6, Waiver of immunity as to actions involving property.
Section 63-30-7, Waiver of immunity for negligent damage, destruction or loss of
seized property.
Section 63-30-8, Waiver of immunity for injury caused by defective, unsafe, or
dangerous condition of highways, bridges, or other structures.
Section 63-30-9, Waiver of immunity for injury from dangerous or defective public
building, structure, or other public improvement -- Exception.
Section 63-30-10, Waiver of immunity for injury caused by negligent act or omission
of employee -- Exceptions.
Section 63-30-10.5, Waiver of immunity for taking private property without
compensation.
Section 63-30-10.6, Attorneys' fees for records requests.
Section 63-30-11, Claim for injury -- Notice -- Contents -- Service -- Legal disability
-- Appointment of guardian ad litem.
Section 63-30-12, Claim against state or its employee -- Time for filing notice.
Section 63-30-13, Claim against political subdivision or its employee -- Time for
filing notice.
Section 63-30-14, Claim for injury -- Approval or denial by governmental entity or
insurance carrier within ninety days.
Section 63-30-15, Denial of claim for injury -- Authority and time for filing action
against governmental entity.
Section 63-30-16, Jurisdiction of district courts over actions -- Application of Rules
of Civil Procedure.
Section 63-30-17, Venue of actions.
Section 63-30-18, Compromise and settlement of actions.
Section 63-30-19, Undertaking required of plaintiff in action.
Section 63-30-20, Judgment against governmental entity bars action against
employee.
Section 63-30-22, Exemplary or punitive damages prohibited -- Governmental entity
exempt from execution, attachment, or garnishment.
Section 63-30-23, Payment of claim or judgment against state -- Presentment for
payment.
Section 63-30-24, Payment of claim or judgment against political subdivision --
Procedure by governing body.
Section 63-30-25, Payment of claim or judgment against political subdivision --
Installment payments.
Section 63-30-26, Reserve funds for payment of claims or purchase of insurance
created by political subdivisions.
Section 63-30-27, Tax levy by political subdivisions for payment of claims,
judgments, or insurance premiums.
Section 63-30-28, Liability insurance -- Purchase of insurance or self-insurance by
governmental entity authorized -- Establishment of trust accounts for self-insurance.
Section 63-30-29.5, Liability insurance -- Government vehicles operated by
employees outside scope of employment.
Section 63-30-31, Liability insurance -- Construction of policy not in compliance
with act.
Section 63-30-32, Liability insurance -- Methods for purchase or renewal.
Section 63-30-33, Liability insurance -- Insurance for employees authorized -- No
right to indemnification or contribution from governmental agency.
Section 63-30-34, Limitation of judgments against governmental entity or employee
-- Insurance coverage exception -- Process for adjustment of limits.
Section 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.
Section 63-30-36, Defending government employee -- Request -- Cooperation --
Payment of judgment.
Section 63-30-37, Recovery of judgment paid and defense costs by government
employee.
Section 63-30-38, Indemnification of governmental entity by employee not required.
Section 78-60-101, Title.
Section 78-60-102, Definitions.
Section 78-60-103, Limitation of judgments against governmental entity or employee
-- Process for adjustment of limits.
Section 48. Transition clause.
It is the intent of the legislature that:
(1) injuries alleged to be caused by a governmental entity that occurred before July 1,
2004, be governed by the provisions of Title 63, Chapter 30, Utah Governmental Immunity Act;
and
(2) injuries alleged to be caused by a governmental entity that occurred on or after July 1,
2004, be governed by the provisions of Title 63, Chapter 30d, Governmental Immunity Act of
Utah.
Section 49. Effective date.
This bill takes effect on July 1, 2004.
Section 50. Coordinating S.B. 55 with S.B. 9.
If this S.B. 55, Governmental Immunity Act of Utah, and S.B. 9, Property Rights
Amendments, both pass, and the amendments to Section 63-30-10.5 pass as part of S.B. 9, it is
the intent of the Legislature to enact the following provisions and direct that the Office of
Legislative Research and General Counsel include that enactment in preparing the Utah Code
database for publication:
" 63-30d-203. Exemptions for certain takings actions.
An action that involves takings law, as defined in Section 63-34-13 , is not subject to the
requirements of Sections 63-30d-401 , 63-30d-402 , 63-30d-403 , and 63-30d-601 ."
Section 51. Coordinating S.B. 55 with H.B. 111
If this S.B. 55, Governmental Immunity Act of Utah, and H.B. 111, Municipal
Government Amendments, both pass, it is the intent of the Legislature that the Office of
Legislative Research and General Counsel, in preparing the Utah Code database for publication,
amend Subsection 63-30d-401 (3)(b)(ii)(A) to read as follows:
"(A) the city or town clerk, when the claim is against an incorporated city or town;"
[Bill Documents][Bills Directory]