The city hereby adopts the following policy statement governing
indemnification of employees and officers for damages payable by virtue
of a final judgment or settlement of tort litigation and reimbursement
for legal fees and costs.
(1990 Code, sec. 6.1000)
A vehicle or mobile equipment either leased or owned by the
city.
Providing security against damages, and exemption from incurred
liabilities.
An amount which a plan member is legally obligated to pay
resulting from an act or omission of the plan member which is covered
under this plan.
The city’s public officials’ and employees’
indemnification for tort liability and legal defense plan.
A person who is:
An employee of the city;
A member of a city board, commission, or committee created by
charter, ordinance, or resolution for the city;
A member of the city council;
A volunteer who is working under the direction of an employee
of the city, with approval of the city manager or a department head;
or
Any other individual who is deemed by law to be an officer of
the city.
(1990 Code, sec. 6.1001)
(a)
The
city shall indemnify and defend a plan member, in accordance with
the terms of this plan, against a loss arising out of any claim, suit,
settlement, or judgment arising from an act or omission of the plan
member during the discharge of his or her duties and within the course
and scope of his or her office, employment, or assigned volunteer
work with the city.
(b)
A
plan member whose position with the city terminates is entitled to
coverage in accordance with this plan for any event that occurred
while the person was a plan member.
(1990 Code, sec. 6.1002)
(a)
The
city will defend any suit against a plan member who is covered under
this plan, even if the suit is groundless or fraudulent.
(b)
The
city may investigate, negotiate, compromise and settle any claim or
suit as the city in its sole determination deems necessary.
(1990 Code, sec. 6.1003)
(a)
The
city will pay losses covered by this plan that a plan member is legally
obligated to pay, except that in cases arising from incidents, occurrences,
or omissions where the city’s liability exists by virtue of
the Texas Tort Claims Act, whether or not the city is a party defendant,
the city will pay those losses covered by this plan that a plan member
is obligated to pay up to but not exceeding the limits of liability
provided by that act, as amended, for units of local government
(b)
In addition to the coverage provided in subsection (a), the city will pay:
(1)
The city’s expenses in investigating and defending the claim
or lawsuit;
(2)
Costs taxed against a plan member in a suit covered by this plan
and interest that accrues after entry of judgment before the city
has deposited payment with the court on that portion of the judgment
which does not exceed the limits of coverage;
(3)
Reasonable expenses of the plan member incurred at the city’s
request; and
(4)
Attorneys’ fees ordered by the court to be paid by the plan
member.
(1990 Code, sec. 6.1004)
Failure of a plan member to comply in full with this division
shall waive such plan member’s right to benefits under this
plan. To be entitled to coverage under the plan, a plan member must:
(1)
Notify
in writing the city attorney as soon as practicable upon receipt of
written notice of a claim or lawsuit, but no later than three (3)
working days after receipt by the plan member;
(2)
Cooperate
with the city attorney and, upon the city attorney’s request,
assist in making compromises and settlements, assist in the conduct
of suits, and assist in enforcing any right of contribution or indemnity
against a person or organization who may be liable to the city because
of injury or damage covered under the plan;
(3)
Attend
hearings and trials and assist in securing and giving evidence and
obtaining the attendance of witnesses;
(4)
Not,
except upon advice of the city attorney or when questioned by a police
officer at the scene of an accident, give any oral or written statement
or enter any stipulation or agreement concerning a claim or lawsuit;
(5)
Not,
except at his or her own cost, voluntarily make any payment, assume
any obligation, or incur any expense with respect to a claim or lawsuit
without the prior express consent of the city.
(1990 Code, sec. 6.1005)
This plan covers only acts or omissions occurring or alleged
to have occurred:
(1)
While
the plan is in effect;
(2)
Before
the plan was in effect and legal claims for which are not barred by
any applicable statute of limitations; and
(3)
If
the plan is canceled or terminated, while the plan is in effect and
legal claims for which are not barred by any applicable statute of
limitations.
(1990 Code, sec. 6.1006)
Coverage under this plan does not apply to a claim or lawsuit
that is brought against a plan member:
(1)
By
the city;
(2)
Arising
out of the intentional or knowing violation of a penal statute or
ordinance committed by or with the knowledge or consent of the plan
member, or any claim arising out of acts of fraud committed by or
at the direction of the plan member with intent to deceive or defraud,
or any claim arising out of acts or omissions of the plan member not
taken in good faith;
(3)
Arising
either while the plan member is operating a city vehicle with no authority
to operate the vehicle, or while the plan member is operating a city
vehicle in the course of personal or private business;
(4)
For
liability assumed by the plan member under a contract, unless the
contract is entered into at the prior request of the city;
(5)
If
the plan member joins or attempts to join with the suit against the
plan member in a claim against the city for benefits under this plan;
(6)
If
the plan member files a claim, lawsuit, or counterclaim against the
city;
(8)
For
any claim or lawsuit for punitive damages; nothing in this plan shall
be construed to require the city to indemnify a plan member for an
award of punitive damages.
(1990 Code, sec. 6.1007)
If payment or legal representation is provided under this plan,
the city is subrogated to the plan member’s rights of recovery
against any person or organization to the extent of the city’s
liability and payments, and the plan member must execute and deliver
to the city attorney whatever documents are necessary to secure those
rights. The plan member must not engage in any act or omission or
do anything after a loss to prejudice those rights. The city has the
superior right of claim of subrogation as against a personal insurer
of the plan member.
(1990 Code, sec. 6.1008)
(a)
The
city will provide legal representation for a plan member in a claim
or suit in which the plan member is covered under this plan.
(b)
If
in the sole discretion of the city attorney it is determined that
there is a conflict of interest for the city attorney in representing
a plan member, and the plan member is otherwise entitled to coverage
under this plan, the city will pay the reasonable fees of a private
attorney to represent the plan member. The private attorney will be
selected by mutual agreement of the plan member and the city attorney,
subject to approval by the city council. If the plan member and the
city attorney are unable to agree upon a private attorney, the city
manager shall designate the private attorney, subject to approval
by the city council.
(1990 Code, sec. 6.1009)
If the city denies coverage to a plan member, the plan member
may seek a determination of coverage by a court of proper jurisdiction
in the county. If the court rules in favor of the plan member, the
city shall provide the plan member all benefits under the plan and
shall reimburse the plan member for reasonable attorneys’ fees,
expenses and costs incurred in obtaining the determination of coverage.
(1990 Code, sec. 6.1010)
Nothing contained in this plan shall be construed as creating
a right or cause of action against a plan member nor as giving a right
to a third party to institute or maintain a suit which would not otherwise
exist under law as a legal claim against a plan member.
(1990 Code, sec. 6.1011)
Nothing contained in this plan shall be construed as creating
a right to benefits under the plan prior to the effective date contained
in the ordinance adopted by the city council which approved and implemented
the plan (July 22, 1986).
(1990 Code, sec. 6.1012)
