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S.B. 123
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7 LONG TITLE
8 General Description:
9 This bill corrects references to the Governmental Immunity Act of Utah.
10 Highlighted Provisions:
11 This bill:
12 . changes references from Chapter 30 to Chapter 30d; and
13 . amends references to sections of the Governmental Immunity Act of Utah.
14 Monies Appropriated in this Bill:
15 None
16 Other Special Clauses:
17 None
18 Utah Code Sections Affected:
19 AMENDS:
20 9-2-1905, as last amended by Chapter 4, Laws of Utah 2003, Second Special Session
21 9-4-917, as last amended by Chapter 319, Laws of Utah 2001
22 10-8-58.5, as enacted by Chapter 229, Laws of Utah 1988
23 11-13-222, as last amended by Chapter 38, Laws of Utah 2003
24 17-53-311, as renumbered and amended by Chapter 133, Laws of Utah 2000
25 17A-2-1056, as last amended by Chapter 254, Laws of Utah 2000
26 19-6-321, as renumbered and amended by Chapter 112, Laws of Utah 1991
27 19-6-427, as renumbered and amended by Chapter 112, Laws of Utah 1991
28 30-2-11, as enacted by Chapter 163, Laws of Utah 1997
29 31A-1-103, as last amended by Chapter 225, Laws of Utah 2004
30 32A-1-118, as last amended by Chapter 1, Laws of Utah 2000
31 40-10-21, as last amended by Chapter 219, Laws of Utah 1994
32 41-12a-407, as last amended by Chapter 203, Laws of Utah 1991
33 41-22-31, as last amended by Chapter 21, Laws of Utah 1989
34 58-59-308, as last amended by Chapter 260, Laws of Utah 2003
35 58-73-701, as renumbered and amended by Chapter 253, Laws of Utah 1996
36 62A-4a-410, as last amended by Chapter 206, Laws of Utah 2002
37 63-2-802, as last amended by Chapter 280, Laws of Utah 1992
38 63-30b-3, as last amended by Chapter 20, Laws of Utah 1995
39 63-46b-1, as last amended by Chapter 235, Laws of Utah 2004
40 63A-4-204, as last amended by Chapter 266, Laws of Utah 2001
41 63A-4-204.5, as last amended by Chapter 266, Laws of Utah 2001
42 67-5b-107, as enacted by Chapter 192, Laws of Utah 1994
43 72-5-306, as renumbered and amended by Chapter 270, Laws of Utah 1998
44 73-18c-306, as enacted by Chapter 348, Laws of Utah 1997
45 73-26-403, as enacted by Chapter 251, Laws of Utah 1991
46 76-10-1311, as enacted by Chapter 179, Laws of Utah 1993
47 78-2a-6, as last amended by Chapter 97, Laws of Utah 2002
48 78-3a-912, as last amended by Chapter 356, Laws of Utah 2004
49 78-27-37, as last amended by Chapter 131, Laws of Utah 2003
50 78-27-43, as last amended by Chapter 131, Laws of Utah 2003
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52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 9-2-1905 is amended to read:
54 9-2-1905. Board members -- Meetings -- Expenses.
55 (1) (a) The board shall consist of five members.
56 (b) Of the five members:
57 (i) one shall be the state treasurer;
58 (ii) one shall be the director; and
59 (iii) three shall be appointed by the governor and confirmed by the Senate.
60 (c) The three members appointed by the governor shall serve four-year staggered terms
61 with the initial terms of the first three members to be four years for one member, three years for
62 one member, and two years for one member.
63 (2) When a vacancy occurs in the membership of the board for any reason, the vacancy
64 shall be:
65 (a) filled in the same manner as the appointment of the original member; and
66 (b) for the unexpired term of the board member being replaced.
67 (3) Appointed members of the board may not serve more than two full consecutive
68 terms except where the governor determines that an additional term is in the best interest of the
69 state.
70 (4) Three members of the board constitute a quorum for conducting business and
71 exercising board power, provided that a minimum of three affirmative votes is required for
72 board action and at least one of the affirmative votes is cast by either the director or the state
73 treasurer.
74 (5) (a) Members of the board may not receive compensation or benefits for their
75 services, but may receive per diem and expenses incurred in the performance of the members'
76 official duties at rates established by the Division of Finance under Sections 63A-3-106 and
77 63A-3-107 .
78 (b) Members of the board may decline to receive per diem and expenses for their
79 services.
80 (6) Members of the board shall be selected on the basis of demonstrated expertise and
81 competence in:
82 (a) the supervision of investment managers;
83 (b) the fiduciary management of investment funds; or
84 (c) the management and administration of tax credit allocation programs.
85 (7) The board and its members are considered to be a governmental entity with all of
86 the rights, privileges, and immunities of a governmental entity of the state, including all of the
87 rights and benefits conferred under Title 63, Chapter [
88 Act of Utah.
89 (8) Meetings of the board, except to the extent necessary to protect confidential
90 information with respect to investments in the Utah fund of funds, are subject to Title 52,
91 Chapter 4, Open and Public Meetings.
92 Section 2. Section 9-4-917 is amended to read:
93 9-4-917. Notes, bonds, other obligations -- Not debt liability -- Expenses payable
94 from funds provided -- Corporation without authority to incur liability on behalf of state
95 -- Relationship to Governmental Immunity Act of Utah.
96 (1) (a) Notes, bonds, and other obligations issued under this part do not constitute a
97 debt or liability of this state or of any county, city, town, village, school district, or any other
98 political subdivision of the state, nor shall the notes, bonds, or other obligations constitute the
99 loaning of credit of the state or of any county, city, town, township, district, or any other
100 political subdivision of the state, nor may the notes, bonds, or other obligations be payable
101 from funds other than those of the corporation.
102 (b) All notes, bonds, or other obligations shall contain on their face a statement to the
103 effect that:
104 (i) the corporation is obligated to pay the note, bond, or obligation solely from the
105 revenues or other funds of the corporation;
106 (ii) neither this state nor any political subdivision of it is obligated to pay the note,
107 bond, or obligation; and
108 (iii) neither the faith and credit nor the taxing power of this state or any political
109 subdivision of it is pledged to the payment of principal, or redemption price of, or the interest
110 on the notes, bonds, or other obligations.
111 (2) All expenses incurred in carrying out this act shall be payable solely from funds
112 provided under this part, and nothing in this part shall be construed to authorize the corporation
113 to incur indebtedness or liability on behalf of or payable by this state or any political
114 subdivision of it.
115 (3) (a) Title 63, Chapter [
116 apply to the corporation.
117 (b) Notwithstanding Subsection (3)(a), no claim may be brought against the state, any
118 public official or employee of the state, another public entity, or any public official or
119 employee of another public entity, based on or arising from:
120 (i) any failure or alleged failure to fulfill a contractual obligation of the corporation;
121 (ii) any act or failure to act of the corporation or any of its trustees, officers, employees,
122 agents, or representatives; or
123 (iii) any failure of the corporation to comply with the requirements of any law or
124 regulation.
125 (c) The provisions of Subsection (3)(b) do not apply to a claim of a current or former
126 officer or employee of the corporation for the retirement or insurance benefits.
127 Section 3. Section 10-8-58.5 is amended to read:
128 10-8-58.5. Contracting for management, maintenance, operation, or construction
129 of jails.
130 (1) (a) The governing body of a city or town may contract with private contractors for
131 management, maintenance, operation, and construction of city jails.
132 (b) The governing body may include a provision in the contract that requires that any
133 jail facility meet any federal, state, or local standards for the construction of jails.
134 (2) If the governing body contracts only for the management, maintenance, or
135 operation of a jail, the governing body shall include provisions in the contract that:
136 (a) require the private contractor to post a performance bond in the amount set by the
137 governing body;
138 (b) establish training standards that must be met by jail personnel;
139 (c) require the private contractor to provide and fund training for jail personnel so that
140 the personnel meet the standards established in the contract and any other federal, state, or local
141 standards for the operation of jails and the treatment of jail prisoners;
142 (d) require the private contractor to indemnify the city or town for errors, omissions,
143 defalcations, and other activities committed by the private contractor that result in liability to
144 the city or town;
145 (e) require the private contractor to show evidence of liability insurance protecting the
146 city or town and its officers, employees, and agents from liability arising from the construction,
147 operation, or maintenance of the jail, in an amount not less than those specified in Title 63,
148 Chapter [
149 (f) require the private contractor to:
150 (i) receive all prisoners committed to the jail by competent authority; and
151 (ii) provide them with necessary food, clothing, and bedding in the manner prescribed
152 by the governing body; and
153 (g) prohibit the use of inmates by the private contractor for private business purposes
154 of any kind.
155 (3) A contractual provision requiring the private contractor to maintain liability
156 insurance in an amount not less than the liability limits established by Title 63, Chapter [
157 30d, Governmental Immunity Act of Utah, may not be construed as waiving the limitation on
158 damages recoverable from a governmental entity or its employees established by that chapter.
159 Section 4. Section 11-13-222 is amended to read:
160 11-13-222. Officers and employees performing services under agreements.
161 (1) Each officer and employee performing services for two or more public agencies
162 under an agreement under this chapter shall be considered to be:
163 (a) an officer or employee of the public agency employing the officer or employee's
164 services even though the officer or employee performs those functions outside of the territorial
165 limits of any one of the contracting public agencies; and
166 (b) an officer or employee of the public agencies under the provisions of Title 63,
167 Chapter [
168 (2) Unless otherwise provided in an agreement that creates an interlocal entity, each
169 employee of a public agency that is a party to the agreement shall:
170 (a) remain an employee of that public agency, even though assigned to perform
171 services for another public agency under the agreement; and
172 (b) continue to be governed by the rules, rights, entitlements, and status that apply to an
173 employee of that public agency.
174 (3) All of the privileges, immunities from liability, exemptions from laws, ordinances,
175 and rules, pensions and relief, disability, workers compensation, and other benefits that apply
176 to an officer, agent, or employee of a public agency while performing functions within the
177 territorial limits of the public agency apply to the same degree and extent when the officer,
178 agent, or employee performs functions or duties under the agreement outside the territorial
179 limits of that public agency.
180 Section 5. Section 17-53-311 is amended to read:
181 17-53-311. Contracting for management, maintenance, operation, or construction
182 of jails.
183 (1) (a) With the approval of the sheriff, a county executive may contract with private
184 contractors for management, maintenance, operation, and construction of county jails.
185 (b) A county executive may include a provision in the contract that allows use of a
186 building authority created under the provisions of Title 17A, Chapter 3, Part 9, Municipal
187 Building Authorities, to construct or acquire a jail facility.
188 (c) A county executive may include a provision in the contract that requires that any jail
189 facility meet any federal, state, or local standards for the construction of jails.
190 (2) If a county executive contracts only for the management, maintenance, or operation
191 of a jail, the county executive shall include provisions in the contract that:
192 (a) require the private contractor to post a performance bond in the amount set by the
193 county legislative body;
194 (b) establish training standards that must be met by jail personnel;
195 (c) require the private contractor to provide and fund training for jail personnel so that
196 the personnel meet the standards established in the contract and any other federal, state, or local
197 standards for the operation of jails and the treatment of jail prisoners;
198 (d) require the private contractor to indemnify the county for errors, omissions,
199 defalcations, and other activities committed by the private contractor that result in liability to
200 the county;
201 (e) require the private contractor to show evidence of liability insurance protecting the
202 county and its officers, employees, and agents from liability arising from the construction,
203 operation, or maintenance of the jail, in an amount not less than those specified in Title 63,
204 Chapter [
205 (f) require the private contractor to:
206 (i) receive all prisoners committed to the jail by competent authority; and
207 (ii) provide them with necessary food, clothing, and bedding in the manner prescribed
208 by the governing body; and
209 (g) prohibit the use of inmates by the private contractor for private business purposes
210 of any kind.
211 (3) A contractual provision requiring the private contractor to maintain liability
212 insurance in an amount not less than the liability limits established by Title 63, Chapter [
213
214 limitation on damages recoverable from a governmental entity or its employees established by
215 that chapter.
216 Section 6. Section 17A-2-1056 is amended to read:
217 17A-2-1056. Claims against district -- Procedures.
218 Any person who believes to have a claim against the district for death, injury, or
219 damage alleged to have been caused by the negligent act or omission of the district shall:
220 (1) file a written notice of claim with the board of trustees as provided in Title 63,
221 Chapter [
222 (2) comply with all the requirements of Title 63, Chapter [
223 Governmental Immunity Act of Utah, in seeking satisfaction of the claim.
224 Section 7. Section 19-6-321 is amended to read:
225 19-6-321. Construction with other state and federal laws -- Governmental
226 immunity.
227 (1) Except as provided in Subsection (2), nothing in this part affects or modifies in any
228 way the obligations or liability of any person under a contract or any other provision of this part
229 or state or federal law, including common law, for damages, indemnification, injury, or loss
230 associated with a hazardous material or substance release or a substantial threat of a hazardous
231 material or substance release.
232 (2) In addition to the governmental immunity granted in Title 63, Chapter [
233 30d, Governmental Immunity Act of Utah, the state and its political subdivisions are not liable
234 for actions performed under this part except as a result of intentional misconduct or gross
235 negligence including reckless, willful, or wanton misconduct.
236 (3) Nothing in this part affects, limits, or modifies in any way the authority granted to
237 the state, any state agency, or any political subdivision under other state or federal law.
238 Section 8. Section 19-6-427 is amended to read:
239 19-6-427. Liability of any person under other laws -- Additional state and
240 governmental immunity -- Exceptions.
241 (1) Except as provided in Subsection (2), nothing in this part affects or modifies in any
242 way:
243 (a) the obligations or liability of any person under any other provision of this part or
244 state or federal law, including common law, for damages, injury, or loss resulting from a
245 release or substantial threat of a release of petroleum from an underground storage tank or a
246 petroleum storage tank; or
247 (b) the liability of any person for costs incurred except as provided in this part.
248 (2) In addition to the governmental immunity granted in Title 63, Chapter [
249 30d, Governmental Immunity Act of Utah, the state and its political subdivisions are not liable
250 for actions performed under this part except as a result of intentional misconduct or gross
251 negligence including reckless, willful, or wanton misconduct.
252 Section 9. Section 30-2-11 is amended to read:
253 30-2-11. Action for consortium due to personal injury.
254 (1) For purposes of this section:
255 (a) "injury" or "injured" means a significant permanent injury to a person that
256 substantially changes that person's lifestyle and includes the following:
257 (i) a partial or complete paralysis of one or more of the extremities;
258 (ii) significant disfigurement; or
259 (iii) incapability of the person of performing the types of jobs the person performed
260 before the injury; and
261 (b) "spouse" means the legal relationship:
262 (i) established between a man and a woman as recognized by the laws of this state; and
263 (ii) existing at the time of the person's injury.
264 (2) The spouse of a person injured by a third party on or after May 4, 1997, may
265 maintain an action against the third party to recover for loss of consortium.
266 (3) A claim for loss of consortium begins on the date of injury to the spouse. The
267 statute of limitations applicable to the injured person shall also apply to the spouse's claim of
268 loss of consortium.
269 (4) A claim for the spouse's loss of consortium shall be:
270 (a) made at the time the claim of the injured person is made and joinder of actions shall
271 be compulsory; and
272 (b) subject to the same defenses, limitations, immunities, and provisions applicable to
273 the claims of the injured person.
274 (5) The spouse's action for loss of consortium:
275 (a) shall be derivative from the cause of action existing in behalf of the injured person;
276 and
277 (b) may not exist in cases where the injured person would not have a cause of action.
278 (6) Fault of the spouse of the injured person, as well as fault of the injured person, shall
279 be compared with the fault of all other parties, pursuant to Sections 78-27-37 through
280 78-27-43 , for purposes of reducing or barring any recovery by the spouse for loss of
281 consortium.
282 (7) Damages awarded for loss of consortium, when combined with any award to the
283 injured person for general damages, may not exceed any applicable statutory limit on
284 noneconomic damages, including Section 78-14-7.1 .
285 (8) Damages awarded for loss of consortium which a governmental entity is required to
286 pay, when combined with any award to the injured person which a governmental entity is
287 required to pay, may not exceed the liability limit for one person in any one occurrence under
288 Title 63, Chapter [
289 Section 10. Section 31A-1-103 is amended to read:
290 31A-1-103. Scope and applicability of title.
291 (1) This title does not apply to:
292 (a) a retainer contract made by an attorney-at-law:
293 (i) with an individual client; and
294 (ii) under which fees are based on estimates of the nature and amount of services to be
295 provided to the specific client;
296 (b) a contract similar to a contract described in Subsection (1)(a) made with a group of
297 clients involved in the same or closely related legal matters;
298 (c) an arrangement for providing benefits that do not exceed a limited amount of
299 consultations, advice on simple legal matters, either alone or in combination with referral
300 services, or the promise of fee discounts for handling other legal matters;
301 (d) limited legal assistance on an informal basis involving neither an express
302 contractual obligation nor reasonable expectations, in the context of an employment,
303 membership, educational, or similar relationship;
304 (e) legal assistance by employee organizations to their members in matters relating to
305 employment; or
306 (f) death, accident, health, or disability benefits provided to a person by an organization
307 or its affiliate if:
308 (i) the organization is tax exempt under Section 501(c)(3) of the Internal Revenue
309 Code and has had its principal place of business in Utah for at least five years;
310 (ii) the person is not an employee of the organization; and
311 (iii) (A) substantially all the person's time in the organization is spent providing
312 voluntary services:
313 (I) in furtherance of the organization's purposes;
314 (II) for a designated period of time; and
315 (III) for which no compensation, other than expenses, is paid; or
316 (B) the time since the service under Subsection (1)(f)(iii)(A) was completed is no more
317 than 18 months.
318 (2) (a) This title restricts otherwise legitimate business activity.
319 (b) What this title does not prohibit is permitted unless contrary to other provisions of
320 Utah law.
321 (3) Except as otherwise expressly provided, this title does not apply to:
322 (a) those activities of an insurer where state jurisdiction is preempted by Section 514 of
323 the federal Employee Retirement Income Security Act of 1974, as amended;
324 (b) ocean marine insurance;
325 (c) death, accident, health, or disability benefits provided by an organization if the
326 organization:
327 (i) has as its principal purpose to achieve charitable, educational, social, or religious
328 objectives rather than to provide death, accident, health, or disability benefits;
329 (ii) does not incur a legal obligation to pay a specified amount; and
330 (iii) does not create reasonable expectations of receiving a specified amount on the part
331 of an insured person;
332 (d) other business specified in rules adopted by the commissioner on a finding that:
333 (i) the transaction of the business in this state does not require regulation for the
334 protection of the interests of the residents of this state; or
335 (ii) it would be impracticable to require compliance with this title;
336 (e) except as provided in Subsection (4), a transaction independently procured through
337 negotiations under Section 31A-15-104 ;
338 (f) self-insurance;
339 (g) reinsurance;
340 (h) subject to Subsection (5), employee and labor union group or blanket insurance
341 covering risks in this state if:
342 (i) the policyholder exists primarily for purposes other than to procure insurance;
343 (ii) the policyholder:
344 (A) is not a resident of this state;
345 (B) is not a domestic corporation; or
346 (C) does not have its principal office in this state;
347 (iii) no more than 25% of the certificate holders or insureds are residents of this state;
348 (iv) on request of the commissioner, the insurer files with the department a copy of the
349 policy and a copy of each form or certificate; and
350 (v) (A) the insurer agrees to pay premium taxes on the Utah portion of its business, as
351 if it were authorized to do business in this state; and
352 (B) the insurer provides the commissioner with the security the commissioner
353 considers necessary for the payment of premium taxes under Title 59, Chapter 9, Taxation of
354 Admitted Insurers;
355 (i) to the extent provided in Subsection (6):
356 (i) a manufacturer's or seller's warranty; and
357 (ii) a manufacturer's or seller's service contract; or
358 (j) except to the extent provided in Subsection (7), a public agency insurance mutual.
359 (4) A transaction described in Subsection (3)(e) is subject to taxation under Section
360 31A-3-301 .
361 (5) (a) After a hearing, the commissioner may order an insurer of certain group or
362 blanket contracts to transfer the Utah portion of the business otherwise exempted under
363 Subsection (3)(h) to an authorized insurer if the contracts have been written by an unauthorized
364 insurer.
365 (b) If the commissioner finds that the conditions required for the exemption of a group
366 or blanket insurer are not satisfied or that adequate protection to residents of this state is not
367 provided, the commissioner may require:
368 (i) the insurer to be authorized to do business in this state; or
369 (ii) that any of the insurer's transactions be subject to this title.
370 (6) (a) As used in Subsection (3)(i) and this Subsection (6):
371 (i) "manufacturer's or seller's service contract" means a service contract:
372 (A) made available by:
373 (I) a manufacturer of a product;
374 (II) a seller of a product; or
375 (III) an affiliate of a manufacturer or seller of a product;
376 (B) made available:
377 (I) on one or more specific products; or
378 (II) on products that are components of a system; and
379 (C) under which the person described in Subsection (6)(a)(i)(A) is liable for services to
380 be provided under the service contract including, if the manufacturer's or seller's service
381 contract designates, providing parts and labor;
382 (ii) "manufacturer's or seller's warranty" means the guaranty of:
383 (A) (I) the manufacturer of a product;
384 (II) a seller of a product; or
385 (III) an affiliate of a manufacturer or seller of a product;
386 (B) (I) on one or more specific products; or
387 (II) on products that are components of a system; and
388 (C) under which the person described in Subsection (6)(a)(ii)(A) is liable for services
389 to be provided under the warranty, including, if the manufacturer's or seller's warranty
390 designates, providing parts and labor; and
391 (iii) "service contract" is as defined in Section 31A-6a-101 .
392 (b) A manufacturer's or seller's warranty may be designated as:
393 (i) a warranty;
394 (ii) a guaranty; or
395 (iii) a term similar to a term described in Subsection (6)(b)(i) or (ii).
396 (c) This title does not apply to:
397 (i) a manufacturer's or seller's warranty;
398 (ii) a manufacturer's or seller's service contract paid for with consideration that is in
399 addition to the consideration paid for the product itself; and
400 (iii) a service contract that is not a manufacturer's or seller's warranty or manufacturer's
401 or seller's service contract if:
402 (A) the service contract is paid for with consideration that is in addition to the
403 consideration paid for the product itself;
404 (B) the service contract is for the repair or maintenance of goods;
405 (C) the cost of the product is equal to an amount determined in accordance with
406 Subsection (6)(e); and
407 (D) the product is not a motor vehicle.
408 (d) This title does not apply to a manufacturer's or seller's warranty or service contract
409 paid for with consideration that is in addition to the consideration paid for the product itself
410 regardless of whether the manufacturer's or seller's warranty or service contract is sold:
411 (i) at the time of the purchase of the product; or
412 (ii) at a time other than the time of the purchase of the product.
413 (e) (i) For fiscal year 2001-02, the amount described in Subsection (6)(c)(iii)(C) shall
414 be equal to $3,700 or less.
415 (ii) For each fiscal year after fiscal year 2001-02, the commissioner shall annually
416 determine whether the amount described in Subsection (6)(c)(iii)(C) should be adjusted in
417 accordance with changes in the Consumer Price Index published by the United States Bureau
418 of Labor Statistics selected by the commissioner by rule, between:
419 (A) the Consumer Price Index for the February immediately preceding the adjustment;
420 and
421 (B) the Consumer Price Index for February 2001.
422 (iii) If under Subsection (6)(e)(ii) the commissioner determines that an adjustment
423 should be made, the commissioner shall make the adjustment by rule.
424 (7) (a) For purposes of this Subsection (7), "public agency insurance mutual" means an
425 entity formed by two or more political subdivisions or public agencies of the state:
426 (i) under Title 11, Chapter 13, Interlocal Cooperation Act; and
427 (ii) for the purpose of providing for the political subdivisions or public agencies:
428 (A) subject to Subsection (7)(b), insurance coverage; or
429 (B) risk management.
430 (b) Notwithstanding Subsection (7)(a)(ii)(A), a public agency insurance mutual may
431 not provide health insurance unless the public agency insurance mutual provides the health
432 insurance using:
433 (i) a third party administrator licensed under Chapter 25, Third Party Administrators;
434 (ii) an admitted insurer; or
435 (iii) a program authorized by Title 49, Chapter 20, Public Employees' Benefit and
436 Insurance Program Act.
437 (c) Except for this Subsection (7), a public agency insurance mutual is exempt from
438 this title.
439 (d) A public agency insurance mutual is considered to be a governmental entity and
440 political subdivision of the state with all of the rights, privileges, and immunities of a
441 governmental entity or political subdivision of the state including all the rights and benefits of
442 Title 63, Chapter [
443 Section 11. Section 32A-1-118 is amended to read:
444 32A-1-118. Liability insurance -- Governmental immunity.
445 (1) The department shall maintain insurance against loss on each motor vehicle
446 operated by it on any public highway. Each motor vehicle shall be covered for:
447 (a) any liability imposed by law upon the department for damages from bodily injuries
448 suffered by any person or persons by reason of the ownership, maintenance, or use of the motor
449 vehicle; and
450 (b) any liability or loss from damage to or destruction of property of any description,
451 including liability of the department for the resultant loss of use of the property, which results
452 from accident due to the ownership, maintenance, or use of the motor vehicle.
453 (2) The department is liable to respond in damages in all cases if a private corporation
454 under the same circumstances would be liable.
455 (3) The provisions of Title 63, Chapter [
456 apply in all actions commenced against the department in any action for damages sustained as a
457 result of department ownership, maintenance, or use of motor vehicles under Subsections (1)
458 and (2). Immunity from suit against the commission or any member of the commission, is in
459 all respects retained in any such action.
460 Section 12. Section 40-10-21 is amended to read:
461 40-10-21. Civil action to compel compliance with chapter -- Jurisdiction -- Venue
462 -- Division and board as parties -- Court costs -- Security when temporary restraining
463 order or injunction sought -- Other rights not affected -- Action for damages.
464 (1) (a) Except as provided in Subsection (2), any person having an interest which is or
465 may be adversely affected may commence a civil action on his own behalf to compel
466 compliance with this chapter against:
467 (i) the state or any other governmental instrumentality or agency to the extent permitted
468 by the 11th Amendment to the United States Constitution or Title 63, Chapter [
469 Governmental Immunity Act of Utah, which is alleged to be in violation of the provisions of
470 this chapter or of any rule, order, or permit issued pursuant to it;
471 (ii) any person who is alleged to be in violation of any rule, order, or permit issued
472 pursuant to this chapter; or
473 (iii) the division or board where there is alleged a failure of the division or board to
474 perform any act or duty under this chapter which is not discretionary with the division or with
475 the board.
476 (b) The district courts shall have jurisdiction without regard to the amount in
477 controversy or the citizenship of the parties.
478 (2) No action may be commenced:
479 (a) under Subsection (1)(a)(i) or (ii):
480 (i) prior to 60 days after the plaintiff has given notice in writing of the violation to the
481 division and to any alleged violator; or
482 (ii) if the attorney general has commenced and is diligently prosecuting a civil action in
483 a court of the state to require compliance with the provisions of this chapter, or any rule, order,
484 or permit issued pursuant to this chapter; or
485 (b) under Subsection (1)(a)(iii) prior to 60 days after the plaintiff has given notice in
486 writing of the action to the board, in the manner as the board prescribes by rule, except that the
487 action may be brought immediately after the notification in the case where the violation or
488 order complained of constitutes an imminent threat to the health or safety of the plaintiff or
489 would immediately affect a legal interest of the plaintiff.
490 (3) (a) Any action concerning a violation of this chapter or the rules promulgated under
491 it may be brought only in the judicial district in which the surface coal mining operation
492 complained of is located.
493 (b) In the action, the division and board, if not a party, may intervene as a matter of
494 right.
495 (4) (a) The court, in issuing any final order in any action brought pursuant to
496 Subsection (1) may award costs of litigation, including attorney and expert witness fees, to any
497 party whenever the court determines that award is appropriate.
498 (b) The court may, if a temporary restraining order or preliminary injunction is sought,
499 require the filing of a bond or equivalent security in accordance with the Utah Rules of Civil
500 Procedure.
501 (5) Nothing in this section may restrict any right which any person, or class of persons,
502 has under any statute or common law to seek enforcement of any of the provisions of this
503 chapter and the rules promulgated under it, or to seek any other relief, including relief against
504 the division and board.
505 (6) Any person who is injured in his person or property through the violation by an
506 operator of any rule, order, or permit issued pursuant to this chapter may bring an action for
507 damages, including reasonable attorney and expert witness fees, only in the judicial district in
508 which the surface coal mining operation complained of is located. Nothing in this Subsection
509 (6) shall affect the rights established by or limits imposed under Utah workmen's compensation
510 laws.
511 Section 13. Section 41-12a-407 is amended to read:
512 41-12a-407. Certificate of self-funded coverage as proof of owner's or operator's
513 security.
514 (1) The department may, upon the application of any person, issue a certificate of
515 self-funded coverage when it is satisfied that the person has:
516 (a) more than 24 motor vehicles; and
517 (b) deposits, in a form approved by the department, securities in an amount of
518 $200,000 plus $100 for each motor vehicle up to and including 1,000 motor vehicles and $50
519 for every motor vehicle over 1,000 motor vehicles.
520 (2) Persons holding a certificate of self-funded coverage under this chapter shall pay
521 benefits to persons injured from the self-funded person's operation, maintenance, and use of
522 motor vehicles as would an insurer issuing a policy to the self-funded person containing the
523 coverages under Section 31A-22-302 .
524 (3) In accordance with Title 63, Chapter 46b, Administrative Procedures Act, the
525 department may, upon reasonable grounds, cancel the certificate. Failure to pay any judgment
526 up to the limit under Subsection 31A-22-304 (2) within 30 days after the judgment is final is a
527 reasonable ground to cancel the certificate.
528 (4) Any government entity with self-funded coverage for government-owned motor
529 vehicles under Title 63, Chapter [
530 the requirements of this section.
531 Section 14. Section 41-22-31 is amended to read:
532 41-22-31. Board to set standards for safety program -- Safety certificates issued --
533 Cooperation with public and private entities -- State immunity from suit.
534 (1) The board shall establish curriculum standards for a comprehensive off-highway
535 vehicle safety education and training program and shall implement this program.
536 (a) The program shall be designed to develop and instill the knowledge, attitudes,
537 habits, and skills necessary for the safe operation of an off-highway vehicle.
538 (b) Components of the program shall include the preparation and dissemination of
539 off-highway vehicle information and safety advice to the public and the training of off-highway
540 vehicle operators.
541 (c) Off-highway vehicle safety certificates shall be issued to those who successfully
542 complete training or pass the knowledge and skills test established under the program.
543 (2) The division shall cooperate with appropriate private organizations and
544 associations, private and public corporations, and local government units to implement the
545 program established under this section.
546 (3) In addition to the governmental immunity granted in Title 63, Chapter [
547 30d, Governmental Immunity Act of Utah, the state is immune from suit for any act, or failure
548 to act, in any capacity relating to the off-highway vehicle safety education and training
549 program. The state is also not responsible for any insufficiency or inadequacy in the quality of
550 training provided by this program.
551 Section 15. Section 58-59-308 is amended to read:
552 58-59-308. No guarantee.
553 By registering and regulating professional employer organizations under this chapter,
554 the state:
555 (1) does not guarantee any right, claim, or defense of any professional employer
556 organization, client company, coemployee, or other person;
557 (2) does not guarantee the financial responsibility or solvency of any professional
558 employer organization; and
559 (3) does not waive any right, claim, or defense of immunity that it may have under
560 Title 63, Chapter [
561 Section 16. Section 58-73-701 is amended to read:
562 58-73-701. Persons immune from liability.
563 (1) Employees of the division, members of the board or its committees, and
564 professional consultants serving the division or the board, are not subject to civil damages,
565 when acting under the authority of this chapter for any act or omission performed in good faith
566 within the scope of their functions as an employee of the division or member of the board.
567 (2) Employees, board members, committee members, and professional consultants are
568 indemnified by the state. The state has full responsibility for providing legal and financial
569 protection for employees, board members, committee members, and consultants to the board or
570 division.
571 (3) Nothing in this section may be construed to adversely limit any provision of Title
572 63, Chapter [
573 Section 17. Section 62A-4a-410 is amended to read:
574 62A-4a-410. Immunity from liability.
575 (1) Any person, official, or institution participating in good faith in making a report,
576 taking photographs or X-rays, assisting an investigator from the division, serving as a member
577 of a child protection team, or taking a child into protective custody pursuant to this part, is
578 immune from any liability, civil or criminal, that otherwise might result by reason of those
579 actions.
580 (2) This section does not provide immunity with respect to acts or omissions of a
581 governmental employee except as provided in Title 63, Chapter [
582 Immunity Act of Utah.
583 Section 18. Section 63-2-802 is amended to read:
584 63-2-802. Injunction -- Attorneys' fees.
585 (1) A district court in this state may enjoin any governmental entity or political
586 subdivision that violates or proposes to violate the provisions of this chapter.
587 (2) (a) A district court may assess against any governmental entity or political
588 subdivision reasonable attorneys' fees and other litigation costs reasonably incurred in
589 connection with a judicial appeal of a denial of a records request if the requester substantially
590 prevails.
591 (b) In determining whether to award attorneys' fees under this section, the court shall
592 consider:
593 (i) the public benefit derived from the case;
594 (ii) the nature of the requester's interest in the records; and
595 (iii) whether the governmental entity's or political subdivision's actions had a
596 reasonable basis.
597 (c) Attorneys' fees shall not ordinarily be awarded if the purpose of the litigation is
598 primarily to benefit the requester's financial or commercial interest.
599 (3) Neither attorneys' fees nor costs shall be awarded for fees or costs incurred during
600 administrative proceedings.
601 (4) Notwithstanding Subsection (2), a court may only award fees and costs incurred in
602 connection with appeals to district courts under Subsection 63-2-404 (2) if the fees and costs
603 were incurred 20 or more days after the requester provided to the governmental entity or
604 political subdivision a statement of position that adequately explains the basis for the
605 requester's position.
606 (5) Claims for attorneys' fees as provided in this section or for damages are subject to
607 Title 63, Chapter [
608 Section 19. Section 63-30b-3 is amended to read:
609 63-30b-3. Action under Governmental Immunity Act of Utah permitted.
610 Nothing in this chapter shall preclude legal action against a public entity for any injury
611 occurring as a result of the decisions or actions taken by a person performing services on a
612 voluntary basis for that entity, where such action would otherwise be permitted under Title 63,
613 Chapter [
614 Section 20. Section 63-46b-1 is amended to read:
615 63-46b-1. Scope and applicability of chapter.
616 (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
617 superseding provisions of this chapter by explicit reference to this chapter, the provisions of
618 this chapter apply to every agency of the state and govern:
619 (a) state agency action that determines the legal rights, duties, privileges, immunities,
620 or other legal interests of an identifiable person, including agency action to grant, deny, revoke,
621 suspend, modify, annul, withdraw, or amend an authority, right, or license; and
622 (b) judicial review of the action.
623 (2) This chapter does not govern:
624 (a) the procedure for making agency rules, or judicial review of the procedure or rules;
625 (b) the issuance of a notice of a deficiency in the payment of a tax, the decision to
626 waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the
627 issuance of a tax assessment, except that this chapter governs an agency action commenced by
628 a taxpayer or by another person authorized by law to contest the validity or correctness of the
629 action;
630 (c) state agency action relating to extradition, to the granting of a pardon or parole, a
631 commutation or termination of a sentence, or to the rescission, termination, or revocation of
632 parole or probation, to the discipline of, resolution of a grievance of, supervision of,
633 confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah
634 State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction
635 of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or
636 judicial review of the action;
637 (d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a
638 student or teacher in a school or educational institution, or judicial review of the action;
639 (e) an application for employment and internal personnel action within an agency
640 concerning its own employees, or judicial review of the action;
641 (f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah
642 Occupational Safety and Health Act, and Title 58, Chapter 3a, Architect Licensing Act,
643 Chapter 11a, Cosmetologist/Barber, Esthetician, Electrologist, and Nail Technician Licensing
644 Act, Chapter 17b, Pharmacy Practice Act, Chapter 22, Professional Engineers and Professional
645 Land [
646 Chapter 55, Utah Construction Trades Licensing Act, Chapter 63, Security Personnel Licensing
647 Act, and Chapter 76, Professional Geologist Licensing Act, except that this chapter governs an
648 agency action commenced by the employer, licensee, or other person authorized by law to
649 contest the validity or correctness of the citation or assessment;
650 (g) state agency action relating to management of state funds, the management and
651 disposal of school and institutional trust land assets, and contracts for the purchase or sale of
652 products, real property, supplies, goods, or services by or for the state, or by or for an agency of
653 the state, except as provided in those contracts, or judicial review of the action;
654 (h) state agency action under Title 7, Chapter 1, Article 3, Powers and Duties of
655 Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution
656 by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or
657 Holding Companies, and Title 63, Chapter [
658 Utah, or judicial review of the action;
659 (i) the initial determination of a person's eligibility for unemployment benefits, the
660 initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'
661 Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial
662 determination of a person's unemployment tax liability;
663 (j) state agency action relating to the distribution or award of a monetary grant to or
664 between governmental units, or for research, development, or the arts, or judicial review of the
665 action;
666 (k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah
667 Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19,
668 Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19,
669 Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,
670 Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used
671 Oil Management Act, except that this chapter governs an agency action commenced by a
672 person authorized by law to contest the validity or correctness of the notice or order;
673 (l) state agency action, to the extent required by federal statute or regulation, to be
674 conducted according to federal procedures;
675 (m) the initial determination of a person's eligibility for government or public
676 assistance benefits;
677 (n) state agency action relating to wildlife licenses, permits, tags, and certificates of
678 registration;
679 (o) a license for use of state recreational facilities;
680 (p) state agency action under Title 63, Chapter 2, Government Records Access and
681 Management Act, except as provided in Section 63-2-603 ;
682 (q) state agency action relating to the collection of water commissioner fees and
683 delinquency penalties, or judicial review of the action;
684 (r) state agency action relating to the installation, maintenance, and repair of headgates,
685 caps, values, or other water controlling works and weirs, flumes, meters, or other water
686 measuring devices, or judicial review of the action;
687 (s) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1 ; and
688 (ii) an action taken by the Division of Securities pursuant to a hearing conducted under
689 Section 61-1-11.1 , including a determination regarding the fairness of an issuance or exchange
690 of securities described in Subsection 61-1-11.1 (1); and
691 (t) state agency action relating to water well driller licenses, water well drilling permits,
692 water well driller registration, or water well drilling construction standards, or judicial review
693 of the action.
694 (3) This chapter does not affect a legal remedy otherwise available to:
695 (a) compel an agency to take action; or
696 (b) challenge an agency's rule.
697 (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative
698 proceeding, or the presiding officer during an adjudicative proceeding from:
699 (a) requesting or ordering a conference with parties and interested persons to:
700 (i) encourage settlement;
701 (ii) clarify the issues;
702 (iii) simplify the evidence;
703 (iv) facilitate discovery; or
704 (v) expedite the proceeding; or
705 (b) granting a timely motion to dismiss or for summary judgment if the requirements of
706 Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party,
707 except to the extent that the requirements of those rules are modified by this chapter.
708 (5) (a) A declaratory proceeding authorized by Section 63-46b-21 is not governed by
709 this chapter, except as explicitly provided in that section.
710 (b) Judicial review of a declaratory proceeding authorized by Section 63-46b-21 is
711 governed by this chapter.
712 (6) This chapter does not preclude an agency from enacting a rule affecting or
713 governing an adjudicative proceeding or from following the rule, if the rule is enacted
714 according to the procedures outlined in Title 63, Chapter 46a, Utah Administrative Rulemaking
715 Act, and if the rule conforms to the requirements of this chapter.
716 (7) (a) If the attorney general issues a written determination that a provision of this
717 chapter would result in the denial of funds or services to an agency of the state from the federal
718 government, the applicability of the provision to that agency shall be suspended to the extent
719 necessary to prevent the denial.
720 (b) The attorney general shall report the suspension to the Legislature at its next
721 session.
722 (8) Nothing in this chapter may be interpreted to provide an independent basis for
723 jurisdiction to review final agency action.
724 (9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
725 cause shown, from lengthening or shortening a time period prescribed in this chapter, except
726 the time period established for judicial review.
727 Section 21. Section 63A-4-204 is amended to read:
728 63A-4-204. School district participation in Risk Management Fund.
729 (1) (a) For the purpose of this section, action by a public school district shall be taken
730 upon resolution by a majority of the members of the school district's board of education.
731 (b) (i) Upon approval by the state risk manager and the board of education of the
732 school district, a public school district may participate in the Risk Management Fund and may
733 permit a foundation established under Section 53A-4-205 to participate in the Risk
734 Management Fund.
735 (ii) Upon approval by the state risk manager and the State Board of Education, a state
736 public education foundation may participate in the Risk Management Fund.
737 (c) Subject to any cancellation or other applicable coverage provisions, either the state
738 risk manager or the public school district may terminate participation in the fund.
739 (2) The state risk manager shall contract for all insurance, legal, loss adjustment,
740 consulting, loss control, safety, and other related services necessary to support the insurance
741 program provided to a participating public school district, except that all supporting legal
742 services are subject to the prior approval of the state attorney general.
743 (3) (a) The state risk manager shall treat each participating public school district as a
744 state agency when participating in the Risk Management Fund.
745 (b) Each public school district participating in the fund shall comply with the
746 provisions of this part that affect state agencies.
747 (4) (a) By no later than March 31 of each year, the risk manager shall prepare, in
748 writing, the information required by Subsection (4)(b) regarding the coverage against legal
749 liability provided a school district employee of this state:
750 (i) by the Risk Management Fund;
751 (ii) under Title 63, Chapter [
752 (iii) under Title 63, Chapter 30a, Reimbursement of Legal Fees and Costs to Officers
753 and Employees.
754 (b) (i) The information described in Subsection (4)(a) shall include:
755 (A) the eligibility requirements, if any, to receive the coverage;
756 (B) the basic nature of the coverage for a school district employee; and
757 (C) whether the coverage is primary or in excess of any other coverage the risk
758 manager knows is commonly available to a school district employee in this state.
759 (ii) The information described in Subsection (4)(a) may include:
760 (A) comparisons the risk manager considers beneficial to a school district employee
761 between:
762 (I) the coverage described in Subsection (4)(a); and
763 (II) other coverage the risk manager knows is commonly available to a school district
764 employee in this state; and
765 (B) any other information the risk manager considers appropriate.
766 (c) The risk manager shall provide the information prepared under this Subsection (4)
767 to each school district that participates in the Risk Management Fund.
768 (d) A school district that participates in the Risk Management Fund shall provide a
769 copy of the information described in Subsection (4)(c) to each school district employee within
770 the school district:
771 (i) within 30 days of the day the school district employee is hired by the school district;
772 and
773 (ii) by no later than April 15 of each calendar year.
774 Section 22. Section 63A-4-204.5 is amended to read:
775 63A-4-204.5. Charter school participation in Risk Management Fund.
776 (1) A charter school established under the authority of Title 53A, Chapter 1a, Part 5,
777 The Utah Charter Schools Act, may participate in the Risk Management Fund upon the
778 approval of the state risk manager and the governing body of the charter school.
779 (2) (a) For purposes of administration, the state risk manager shall treat each charter
780 school participating in the fund as a state agency.
781 (b) Each charter school participating in the fund shall comply with the provisions of
782 this part that affect state agencies.
783 (3) (a) By no later than March 31 of each year, the risk manager shall prepare, in
784 writing, the information required by Subsection (3)(b) regarding the coverage against legal
785 liability provided a charter school employee of this state:
786 (i) by the Risk Management Fund;
787 (ii) under Title 63, Chapter [
788 (iii) under Title 63, Chapter 30a, Reimbursement of Legal Fees and Costs to Officers
789 and Employees.
790 (b) (i) The information described in Subsection (3)(a) shall include:
791 (A) the eligibility requirements, if any, to receive the coverage;
792 (B) the basic nature of the coverage for a charter school employee; and
793 (C) whether the coverage is primary or in excess of any other coverage the risk
794 manager knows is commonly available to a charter school employee in this state.
795 (ii) The information described in Subsection (3)(a) may include:
796 (A) comparisons the risk manager considers beneficial to a charter school employee
797 between:
798 (I) the coverage described in Subsection (3)(a); and
799 (II) other coverage the risk manager knows is commonly available to a charter school
800 employee in this state; and
801 (B) any other information the risk manager considers appropriate.
802 (c) The risk manager shall provide the information prepared under this Subsection (3)
803 to each charter school that participates in the Risk Management Fund.
804 (d) A charter school that participates in the Risk Management Fund shall provide a
805 copy of the information described in Subsection (3)(c) to each charter school employee within
806 the charter school:
807 (i) within 30 days of the day the charter school employee is hired by the charter school;
808 and
809 (ii) by no later than April 15 of each calendar year.
810 Section 23. Section 67-5b-107 is amended to read:
811 67-5b-107. Immunity -- Limited liability.
812 (1) Officers and employees performing services for two or more public agencies
813 pursuant to contracts executed under the provisions of this part are considered to be officers
814 and employees of the public agency employing their services, even though performing those
815 functions outside of the territorial limits of any one of the contracting public agencies, and are
816 considered to be officers and employees of public agencies in accordance with Title 63,
817 Chapter [
818 (2) The officers and employees of the center, while acting within the scope of their
819 authority, are not subject to any personal or civil liability resulting from carrying out any of the
820 purposes of a center under the provisions of Title 63, Chapter [
821 Immunity Act of Utah.
822 (3) A volunteer is considered a government employee in accordance with Section
823 67-20-3 and entitled to immunity under the provisions of Title 63, Chapter [
824 Governmental Immunity Act of Utah.
825 (4) A volunteer, other than one considered a government employee in accordance with
826 Section 67-20-3 , may not incur any personal financial liability for any tort claim or other action
827 seeking damage for an injury arising from any act or omission of the volunteer while providing
828 services for the nonprofit organization if:
829 (a) the individual was acting in good faith and reasonably believed he was acting
830 within the scope of his official functions and duties with the center; and
831 (b) the damage or injury was not caused by an intentional or knowing act by the
832 volunteer which constitutes illegal or wanton misconduct.
833 (5) The center is not liable for the acts or omissions of its volunteers in any
834 circumstance where the acts of its volunteers are not as described in Section (4) unless:
835 (a) the center had, or reasonably should have had, reasonable notice of the volunteer's
836 unfitness to provide services to the center under circumstances that make the center's use of the
837 volunteer reckless or wanton in light of that notice; or
838 (b) a business employer would be liable under the laws of this state if the act or
839 omission were the act or omission of one of its employees.
840 Section 24. Section 72-5-306 is amended to read:
841 72-5-306. Assumption of risk -- Immunity -- Public safety.
842 (1) An R.S. 2477 right-of-way not designated under Section 72-3-102 , 72-3-103 , or
843 72-3-104 as a Class A, B, or C road is traveled at the risk of the user.
844 (2) The state and its political subdivisions do not waive immunity under Title 63,
845 Chapter [
846 occurring in or associated with any R.S. 2477 right-of-way.
847 (3) The state and its political subdivisions assume no liability for injury or damage
848 resulting from a failure to maintain any:
849 (a) R.S. 2477 right-of-way for vehicular travel; or
850 (b) highway sign on an R.S. 2477 right-of-way.
851 (4) If the state or any political subdivision of the state chooses to maintain an R.S.
852 2477 right-of-way, the basic governmental objective involved in providing the improvements is
853 the consistent promotion of public safety.
854 (5) (a) The state recognizes that there are limited funds available to upgrade all R.S.
855 2477 rights-of-way to applicable safety standards.
856 (b) A decision by the state or a political subdivision of the state to allocate funds for
857 maintaining an R.S. 2477 right-of-way is the result of evaluation and assigning of priorities for
858 the promotion of public safety.
859 (c) The state or a political subdivision of the state must use its judgment and expertise
860 to evaluate which safety feature improvements should be made first. In making this policy
861 determination the state or a political subdivision of the state may:
862 (i) perform on-site inspections and weigh all factors relating to safety, including the
863 physical characteristics and configuration of the R.S. 2477 right-of-way and the volume and
864 type of traffic on the R.S. 2477 right-of-way; and
865 (ii) consult with transportation experts who have expertise to make an evaluation of the
866 relative dangerousness of R.S. 2477 rights-of-way within their jurisdiction.
867 Section 25. Section 73-18c-306 is amended to read:
868 73-18c-306. Certificate of self-funded coverage as proof of owner's or operator's
869 security.
870 (1) The division may, upon the application of any person, issue a certificate of
871 self-funded coverage when it is satisfied that the person has:
872 (a) more than 24 personal watercraft; and
873 (b) deposits, in a form approved by the division, securities in an amount of $200,000
874 plus $100 for each personal watercraft up to and including 1,000 personal watercraft and $50
875 for each personal watercraft over 1,000 personal watercraft.
876 (2) Persons holding a certificate of self-funded coverage under this chapter shall pay
877 benefits to persons injured from the self-funded person's operation, maintenance, and use of
878 personal watercraft as would an insurer issuing a policy to the self-funded person containing
879 the coverages under Sections 31A-22-1502 and 31A-22-1503 .
880 (3) In accordance with Title 63, Chapter 46b, Administrative Procedures Act, the
881 division may, upon reasonable grounds, cancel the certificate. Failure to pay any judgment up
882 to the limit under Subsection 31A-22-1503 (2) within 30 days after the judgment is final is a
883 reasonable ground to cancel the certificate.
884 (4) Any government entity with self-funded coverage for government-owned personal
885 watercraft under Title 63, Chapter [
886 the requirements of this section.
887 Section 26. Section 73-26-403 is amended to read:
888 73-26-403. Immunity from suit -- Exception.
889 Activities engaged in under authority of this chapter are governmental functions. The
890 state and its officers and employees are immune from suit for any injury or damage resulting
891 from those activities, except as provided in Section [
892 Section 27. Section 76-10-1311 is amended to read:
893 76-10-1311. Mandatory testing -- Retention of offender medical file -- Civil
894 liability.
895 (1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty and
896 mentally ill, or been found guilty for violation of Section 76-10-1302 , 76-10-1303 , or
897 76-10-1313 shall be required to submit to a mandatory test to determine if the offender is an
898 HIV positive individual. The mandatory test shall be required and conducted prior to
899 sentencing.
900 (2) If the mandatory test has not been conducted prior to sentencing, and the convicted
901 offender is already confined in a county jail or state prison, such person shall be tested while in
902 confinement.
903 (3) The local law enforcement agency shall cause the blood specimen of the offender as
904 defined in Subsection (1) confined in county jail to be taken and tested.
905 (4) The Department of Corrections shall cause the blood specimen of the offender
906 defined in Subsection (1) confined in any state prison to be taken and tested.
907 (5) The local law enforcement agency shall collect and retain in the offender's medical
908 file the following data:
909 (a) the HIV infection test results;
910 (b) a copy of the written notice as provided in Section 76-10-1312 ;
911 (c) photographic identification; and
912 (d) fingerprint identification.
913 (6) The local law enforcement agency shall classify the medical file as a private record
914 pursuant to Subsection 63-2-302 (1)(b) or a controlled record pursuant to Section 63-2-303 .
915 (7) The person tested shall be responsible for the costs of testing, unless the person is
916 indigent. The costs will then be paid by the local law enforcement agency or the Department of
917 Corrections from the General Fund.
918 (8) (a) The laboratory performing testing shall report test results to only designated
919 officials in the Department of Corrections, the Department of Health, and the local law
920 enforcement agency submitting the blood specimen.
921 (b) Each department or agency shall designate those officials by written policy.
922 (c) Designated officials may release information identifying an offender under Section
923 76-10-1302 , 76-10-1303 , or 76-10-1313 who has tested HIV positive as provided under
924 Subsection 63-2-202 (1) and for purposes of prosecution pursuant to Section 76-10-1309 .
925 (9) (a) An employee of the local law enforcement agency, the Department of
926 Corrections, or the Department of Health who discloses the HIV test results under this section
927 is not civilly liable except when disclosure constitutes fraud or [
928 provided in Section [
929 (b) An employee of the local law enforcement agency, the Department of Corrections,
930 or the Department of Health who discloses the HIV test results under this section is not civilly
931 or criminally liable, except when disclosure constitutes a knowing violation of Section
932 63-2-801 .
933 (10) When the medical file is released as provided in Section 63-2-803 , the local law
934 enforcement agency, the Department of Corrections, or the Department of Health or its officers
935 or employees are not liable for damages for release of the medical file.
936 Section 28. Section 78-2a-6 is amended to read:
937 78-2a-6. Appellate Mediation Office -- Protected records and information --
938 Governmental immunity.
939 (1) Unless a more restrictive rule of court is adopted pursuant to Subsection
940 63-2-201 (3)(b), information and records relating to any matter on appeal received or generated
941 by the Chief Appellate Mediator or other staff of the Appellate Mediation Office as a result of
942 any party's participation or lack of participation in the settlement program shall be maintained
943 as protected records pursuant to Subsections 63-2-304 (16), (17), (18), and (33).
944 (2) In addition to the access restrictions on protected records provided in Section
945 63-2-202 , the information and records may not be disclosed to judges, staff, or employees of
946 any court of this state.
947 (3) The Chief Appellate Mediator may disclose statistical and other demographic
948 information as may be necessary and useful to report on the status and to allow supervision and
949 oversight of the Appellate Mediation Office.
950 (4) When acting as mediators, the Chief Appellate Mediator and other professional
951 staff of the Appellate Mediation Office shall be immune from liability pursuant to Title 63,
952 Chapter [
953 (5) Pursuant to Utah Constitution, Article VIII, Section 4, the Supreme Court may
954 exercise overall supervision of the Appellate Mediation Office as part of the appellate process.
955 Section 29. Section 78-3a-912 is amended to read:
956 78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal --
957 Duties and responsibilities -- Training -- Trained staff and court-appointed special
958 advocate volunteers -- Costs -- Immunity -- Annual report.
959 (1) The court may appoint an attorney guardian ad litem to represent the best interest of
960 a minor involved in any case before the court and shall consider only the best interest of a
961 minor in determining whether to appoint a guardian ad litem.
962 (2) An attorney guardian ad litem shall represent the best interest of each minor who
963 may become the subject of a petition alleging abuse, neglect, or dependency, from the date the
964 minor is removed from the minor's home by the division, or the date the petition is filed,
965 whichever occurs earlier.
966 (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad
967 litem, shall:
968 (a) represent the best interest of the minor in all proceedings;
969 (b) be trained in applicable statutory, regulatory, and case law, and in accordance with
970 the United States Department of Justice National Court Appointed Special Advocate
971 Association guidelines, prior to representing any minor before the court;
972 (c) conduct or supervise an independent investigation in order to obtain first-hand, a
973 clear understanding of the situation and needs of the child;
974 (d) (i) personally meet with the minor;
975 (ii) personally interview the minor if the minor is old enough to communicate;
976 (iii) determine the minor's goals and concerns regarding placement; and
977 (iv) personally assess or supervise an assessment of the appropriateness and safety of
978 the minor's environment in each placement;
979 (e) file written motions, responses, or objections at all stages of a proceeding when
980 necessary to protect the best interest of a minor;
981 (f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
982 administrative and foster care citizen review board hearings pertaining to the minor's case;
983 (g) participate in all appeals unless excused by order of the court;
984 (h) be familiar with local experts who can provide consultation and testimony
985 regarding the reasonableness and appropriateness of efforts made by the Division of Child and
986 Family Services to maintain a minor in the minor's home or to reunify a minor with the minor's
987 parent;
988 (i) to the extent possible, and unless it would be detrimental to the minor, personally or
989 through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the
990 status of the minor's case, all court and administrative proceedings, discussions, and proposals
991 made by other parties, court action, and psychiatric, medical, or other treatment or diagnostic
992 services that are to be provided to the minor;
993 (j) review proposed orders for, and as requested by the court, prepare proposed orders
994 with clear and specific directions regarding services, treatment, and evaluation, assessment, and
995 protection of the minor and the minor's family; and
996 (k) personally or through a trained volunteer, paralegal, or other trained staff, monitor
997 implementation of a minor's treatment plan and any dispositional orders to determine whether
998 services ordered by the court are actually provided, are provided in a timely manner, and
999 attempt to assess whether they are accomplishing their intended goal.
1000 (4) (a) An attorney guardian ad litem may use trained volunteers, in accordance with
1001 Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained
1002 staff to assist in investigation and preparation of information regarding the cases of individual
1003 minors before the court. An attorney guardian ad litem may not, however, delegate the
1004 attorney's responsibilities described in Subsection (3).
1005 (b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained
1006 in and follow, at a minimum, the guidelines established by the United States Department of
1007 Justice Court Appointed Special Advocate Association.
1008 (c) The court may use volunteers trained in accordance with the requirements of
1009 Subsection (4)(b) to assist in investigation and preparation of information regarding the cases
1010 of individual minors within the jurisdiction.
1011 (d) When possible and appropriate, the court may use a volunteer who is a peer of the
1012 minor appearing before the court, in order to provide assistance to that minor, under the
1013 supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
1014 other trained staff.
1015 (5) The attorney guardian ad litem shall continue to represent the best interest of the
1016 minor until released from duties by the court.
1017 (6) (a) The juvenile court is responsible for all costs resulting from the appointment of
1018 an attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment
1019 and training, and shall use funds appropriated by the Legislature for the guardian ad litem
1020 program to cover those costs.
1021 (b) (i) When the court appoints an attorney guardian ad litem under this section, the
1022 court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
1023 expenses against the minor's parents, parent, or legal guardian in a proportion that the court
1024 determines to be just and appropriate.
1025 (ii) The court may not assess those fees or costs against a legal guardian, when that
1026 guardian is the state, or against a parent who is found to be impecunious. If a person claims to
1027 be impecunious, the court shall require of that person an affidavit of impecuniosity as provided
1028 in Section 78-7-36 and the court shall follow the procedures and make the determinations as
1029 provided in Section 78-7-36 .
1030 (7) An attorney guardian ad litem appointed under this section, when serving in the
1031 scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
1032 of the state for purposes of indemnification under Title 63, Chapter [
1033 Governmental Immunity Act of Utah.
1034 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
1035 minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
1036 guardian ad litem shall communicate the minor's wishes to the court in addition to presenting
1037 the attorney's determination of the minor's best interest. A difference between the minor's
1038 wishes and the attorney's determination of best interest may not be considered a conflict of
1039 interest for the attorney.
1040 (b) The court may appoint one attorney guardian ad litem to represent the best interests
1041 of more than one minor child of a marriage.
1042 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
1043 Family Services records regarding the minor at issue and the minor's family.
1044 (10) An attorney guardian ad litem shall maintain current and accurate records
1045 regarding the number of times the attorney has had contact with each minor and the actions the
1046 attorney has taken in representation of the minor's best interest.
1047 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian
1048 ad litem are confidential and may not be released or made public upon subpoena, search
1049 warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
1050 Government Records Access and Management Act.
1051 (b) All records of an attorney guardian ad litem are subject to legislative subpoena,
1052 under Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the
1053 Legislature.
1054 (c) Records released in accordance with Subsection (11)(b) shall be maintained as
1055 confidential by the Legislature. The Office of the Legislative Auditor General may, however,
1056 include summary data and nonidentifying information in its audits and reports to the
1057 Legislature.
1058 (d) Because of the unique role of an attorney guardian ad litem described in Subsection
1059 (8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
1060 patriae, to protect minors, Subsection (11)(b) constitutes an exception to Rules of Professional
1061 Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
1062 bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
1063 subpoena.
1064 (e) The Office of the Guardian Ad Litem shall present an annual report to the Child
1065 Welfare Legislative Oversight Panel detailing:
1066 (i) the development, policy, and management of the statewide guardian ad litem
1067 program;
1068 (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
1069 (iii) the number of children served by the Office of the Guardian Ad Litem.
1070 Section 30. Section 78-27-37 is amended to read:
1071 78-27-37. Definitions.
1072 As used in Sections 78-27-37 through Section 78-27-43 :
1073 (1) "Defendant" means a person, other than a person immune from suit as defined in
1074 Subsection (3), who is claimed to be liable because of fault to any person seeking recovery.
1075 (2) "Fault" means any actionable breach of legal duty, act, or omission proximately
1076 causing or contributing to injury or damages sustained by a person seeking recovery, including
1077 negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach
1078 of express or implied warranty of a product, products liability, and misuse, modification, or
1079 abuse of a product.
1080 (3) "Person immune from suit" means:
1081 (a) an employer immune from suit under Title 34A, Chapter 2, Workers' Compensation
1082 Act, or Chapter 3, Utah Occupational Disease Act; and
1083 (b) a governmental entity or governmental employee immune from suit pursuant to
1084 Title 63, Chapter [
1085 (4) "Person seeking recovery" means any person seeking damages or reimbursement on
1086 its own behalf, or on behalf of another for whom it is authorized to act as legal representative.
1087 Section 31. Section 78-27-43 is amended to read:
1088 78-27-43. Effect on immunity, exclusive remedy, indemnity, contribution.
1089 Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any common law or
1090 statutory immunity from liability, including, but not limited to, governmental immunity as
1091 provided in Title 63, Chapter [
1092 Chapter 2, Workers' Compensation Act. Nothing in Sections 78-27-37 through 78-27-42
1093 affects or impairs any right to indemnity or contribution arising from statute, contract, or
1094 agreement.
Legislative Review Note
as of 1-17-05 11:40 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.