Means the City of DeSoto, Texas.
Means a vehicle or mobile equipment either leased or owned
by the city.
Means 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.
Means the City of DeSoto Officer and Employee Liability Plan.
Means a person who is:
An employee of the city;
A member of a city board, commission or committee created by
charter, ordinance or resolution of the city;
A member of the city council;
A volunteer who has been approved as a volunteer by a departmental
volunteer coordinator and who is working under the direction of an
employee of the city; or
A member of the board of directors of a nonprofit corporation
created by charter, ordinance or resolution of the city as an instrumentality
of the city, unless such nonprofit corporation has a source of income
to provide indemnification and legal defense for its directors.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.801)
(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
or judgment resulting from an act or omission of the plan member during
the discharge of his duties and within the scope of his 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.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.802)
(a)
Subject to the provisions of Section 9.808, 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, and settle any claim or suit as it
determines necessary.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.803)
(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 or
occurrences where the city's liability exists by virtue of the Texas
Tort Claims Act (Chapter 101 of the Texas Civil Practice and Remedies
Code), whether or not the city is a party defendant, the city will
pay those losses covered by this plan that a plan member is legally
obligated to pay up to, but not exceeding the maximum payments allowable
under Chapter 102 of the Texas Civil Practice and Remedies Code.
(b)
Subject to the limits of coverage in subsection (a) above, and the exclusions in Section 9.806, 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 part 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.
(c)
To be
entitled to coverage under the plan, a plan member must:
(1)
notify
the city attorney in writing as soon as practicable upon receipt of
written notice of a claim or lawsuit, but no later than three (3)
working days after receipt;
(2)
cooperate
with the city attorney, and upon the city's request, assist in making
settlements, in the conduct of suits, and 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; and
(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 into any stipulation or agreement concerning a claim or lawsuit;
(5)
not,
except at his own cost, voluntarily make any payment, assume any obligation
or incur any expense with respect to a claim or lawsuit without the
consent of the city.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.804)
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 (above any insurance coverage in effect) and
which are not barred by any statute of limitations; and
(3)
if the
plan is canceled, while the plan is in effect and which are not barred
by any statute of limitations.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.805)
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;
(3)
arising
while the plan member is operating a city vehicle with no authority
to operate the vehicle;
(4)
for
liability assumed by the plan member under a contract, unless the
contract is entered into at the request of the city;
(5)
if the
plan member joins or attempts to join with the suit against the plan
member a claim against the city for benefits under this plan;
(7)
for
punitive damages, where such damages are not recoverable in law or
against the city; or
(8)
for
damages or payments in excess of the amounts permitted in Chapter
102 of the Texas Civil Practice and Remedies Code or expressly excluded
under Section 102.002(c) and (d) of the Texas Civil Practice and Remedies
Code in cases and claims arising from incidents or occurrences where
the city's liability exists by virtue of the Texas Tort Claims Act
(Chapter 101 of the Civil Practice and Remedies Code).
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.806)
If the 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 do anything after a loss to prejudice those
rights. Any damages or court costs recovered by a plan member shall
be paid to the city to the extent necessary to offset the cost of
the defense of such plan member.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.807)
(a)
Covered
Claims or Suits Only.
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)
Conflict
of Interest.
If the city attorney determines that there
exists a conflict of interest for the city attorney to represent a
plan member, and the plan member is otherwise entitled to coverage
under this plan, the city will pay the reasonable fee of a private
attorney to represent the plan member. The private attorney will be
selected by the city attorney in consultation with the plan members.
If agreement regarding selection of counsel is not reached, the plan
member may appeal to the city council which shall select the private
attorney. The city council's determination shall be final.
(c)
Representation
of Police Officers in Criminal Proceedings.
The city
will provide legal representation for any police officer in any criminal
proceeding up to the time an Internal Affairs report is submitted
to the chief of police. The city will provide legal representation
in criminal proceedings for any police officer thereafter, if the
city manager certifies that the police officer was acting within the
course and scope of his employment, provided, however, that legal
representation for any appeal of a criminal conviction maybe provided
at the discretion of the claims board.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.808)
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 Dallas County, Texas. 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 attorney fees,
expenses and costs incurred in obtaining the determination of coverage.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.809)
Nothing contained in this plan shall be construed as creating
a right or cause of action against a plan member nor 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.
(1995 Code of Ordinances, Chapter 8, Article 8.800,
Section 8.810)
