There is hereby established the city officer and employee liability plan.
(1995 Code, sec. 8.1101; 2009 Code, sec. 9.02.001)
A vehicle or mobile equipment either leased or owned by the city.
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 officer and employee liability plan.
A person who is:
An employee of the city;
A member of a city board, commission, or committee created by ordinance or resolution of the city;
A member of the city council or a retained professional, independent firm and/or person who renders professional services to the city;
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.
(1995 Code, sec. 8.1102; 2009 Code, sec. 9.02.002)
(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, sec. 8.1103; 2009 Code, sec. 9.02.003)
(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, V.T.C.A., Civil Practice and Remedies Code, chapter 101, 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 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 part of the judgment which does not exceed that limits of coverage;
(3)
Reasonable expenses of the plan member incurred at the city’s request; and
(4)
Attorney’s fees ordered by the court to be paid by the plan member.
(1995 Code, sec. 8.1105; 2009 Code, sec. 9.02.005)
To be entitled to coverage under the plan, a plan member must:
(1)
Notify the city attorney as soon as practicable upon receipt of written notice of a claim or lawsuit, but no later than five working days after receipt;
(2)
Cooperate with the city attorney and/or counsel retained by the city’s insurance carrier, and, upon such counsel’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;
(4)
Not, except upon advice of the city attorney or other counsel, 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, except such as may be required by statute; and
(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, sec. 8.1106; 2009 Code, sec. 9.02.006)
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 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, sec. 8.1107; 2009 Code, sec. 9.02.007)
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 or intentional torts committed by or at the direction of the plan member with intent to deceive or defraud;
(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 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; or
(1995 Code, sec. 8.1108; 2009 Code, sec. 9.02.008)
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 do anything after a loss to prejudice those rights.
(1995 Code, sec. 8.1109; 2009 Code, sec. 9.02.009)
(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 if not otherwise provided by counsel for an insurance carrier, or in the event the claims should exceed the city’s coverage at the option of the plan member.
(b)
If the city attorney determines 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, this city will pay the reasonable fee 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.
(1995 Code, sec. 8.1110; 2009 Code, sec. 9.02.010)
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 attorney’s fees, expenses and costs incurred in obtaining the determination of coverage.
(1995 Code, sec. 8.1111; 2009 Code, sec. 9.02.011)
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.
(1995 Code, sec. 8.1112; 2009 Code, sec. 9.02.012)