The following terms, as used in this article, shall have the following meanings unless the context requires otherwise:
(1) 
Act
includes an omission or failure to act.
(2) 
City
means the City of Irving, Texas.
(3) 
City vehicle
means a vehicle or any mobile equipment leased to, or owned by, the city.
(4) 
Claim
means any claim made or suit brought against a plan member for damage or injury alleged to be caused by a covered act.
(5) 
Claims board
means the city's self-insurance claims board created by article IV of this chapter.
(6) 
Coverage determination action
means an action by a plan member to determine coverage under the plan pursuant to section 27A-147 of this article.
(7) 
Covered act
means any act or omission of a plan member that:
a. 
Occurs during the discharge of the plan member's official duties;
b. 
Is within the course and scope of the plan member's office, employment, or assigned volunteer work with the city, as applicable; or
c. 
Constitutes, or is alleged or asserted to constitute, negligence on the part of the plan member.
d. 
Occurs during incidental medical services or first aid (including transportation) at the scene of an accident or injury by any plan member not regularly engaged in the medical profession.
e. 
Occurs while rendering medical services (including transportation) by emergency medical technicians, paramedics, nurses and aides employed by the city while in the course of their employment as such.
f. 
Occurs while a plan member is carrying out their authorized duties related to the city's law enforcement activities.
g. 
Occurs while a plan member is using a city vehicle, or one (1) hired by or on behalf of the city, provided the use is with the permission of the city; or
h. 
Arises from the use of a nonowned automobile by a plan member while such automobile is being used in the business of the city.
i. 
Arises from an act or omission of a plan member while they are acting in the course of their duties as a member of the claims board.
(8) 
Excluded action
means any claim against a plan member:
a. 
By the city; or
b. 
That results from (i) an intentional or knowing violation of a penal law (including an administrative agency rule having the force and effect of law) committed by, or with the knowledge and consent of, the plan member; (ii) an act of fraud committed by, or at the direction of, the plan member; (iii) official misconduct, a willful or wrongful act or omission, or an act or omission constituting gross negligence committed by, or at the direction of, the plan member; (iv) an act of conspiracy or collusion by the plan member against the city; or (v) knowing or intentional violation by the plan member of any ordinances, policies or procedures of the city, or of lawful orders, instructions or directives of city management; or (vi) an intentional or knowing violation of employment rules or policies;
c. 
That arises while the plan member is using or operating a city vehicle or other city property or equipment with no authority to do so;
d. 
That asserts or alleges liability assumed by the plan member under a contract, unless the plan member is authorized by the city to enter into the contract;
e. 
That includes a joinder by the plan member of a claim or suit of the member against the city for benefits under the plan;
f. 
For damages that are not recoverable against the city; or
g. 
For damages the city is precluded from paying under Section 102.002, or for payments in excess of the limitations on payments by the city prescribed by Section 102.003, Texas Civil Practice and Remedies Code, Vernon's Texas Codes Annotated.
(9) 
Excluded loss
means any of the following:
a. 
Any loss that arises out of an excluded action;
b. 
Any loss the city is precluded from paying by law;
c. 
Any loss arising out of a claim resulting from a covered act that occurred before the plan took effect, unless the board in its discretion extends coverage;
d. 
Any loss arising out of a claim resulting from a covered act that occurs while the plan is in effect if (i) the plan member experiencing the loss becomes legally obligated to pay the loss after the plan is terminated, and (ii) such claim or legal proceeding were barred by any statute of limitations when instituted; or
e. 
Any loss arising out of a claim resulting from a covered act that occurs after the plan is terminated.
(10) 
Loss
means (i) the damages that a plan member or former plan member is legally obligated to pay on account of a claim; and (ii) amounts paid, or agreed to be paid, by the city pursuant to sections 27A-143(b) and 27A-144 of this article, to compromise or settle a claim in order to avoid the risk, expense and uncertainty of litigation.
(11) 
Loss expenses
means any of the following:
a. 
The city's expenses in investigating or defending a claim that may result in a plan claim;
b. 
The costs taxed against a plan member in a suit that results in a plan claim and any pre-judgment or post-judgment interest for which the plan member is liable;
c. 
The reasonable expenses of a plan member incurred at the city's request in connection with a claim that may result in a plan claim; and
d. 
Any attorneys' fees ordered by a court to be paid by a plan member in a suit arising out of a claim that results in a plan claim.
(12) 
Non-owned automobile
means an automobile which is neither a city vehicle nor one (1) hired by the city.
(13) 
Plan
means the City of Irving Officer and Employee Liability Plan, as established by this article.
(14) 
Plan claim
means any plan loss together with the plan loss expenses that result from the claim giving rise to such plan loss.
(15) 
Plan loss
means any loss that is not an excluded loss.
(16) 
Plan loss expenses
means any loss expenses, except those incurred in connection with an excluded action.
(17) 
Plan member
means an individual who at the time of a covered act is:
a. 
An employee of the city;
b. 
The mayor as well as any other member of the city council;
c. 
A member of (i) a city board, commission, or committee created by charter, ordinance, or resolution of the city, or (ii) the board of directors of any nonprofit corporation created under the authority of the city council as an instrumentality of the city; or
d. 
An individual who is (i) a member of the city's volunteer police reserve, or (ii) any other volunteer acting with knowledge of and authorization by the city to assist the city pursuant to an official policy adopted or approved by the city council.
(18) 
Program ordinance
means Ordinance No. 5847 (which establishes the city's self-insurance), as from time to time amended. The aforesaid ordinance is set out herein as article IV of this chapter.
(Ordinance 5848, § 1(1), adopted 8/23/1990)
The city hereby establishes the "City of Irving Officer and Employee Liability Plan," which shall consist of the policies, rights, and duties embodied in this article. The plan shall be implemented and administered as provided by this article.
(Ordinance 5848, § 1(2), adopted 8/23/1990)
(a) 
The city will defend any suit, except an excluded action, against a plan member or former plan member that results from a covered act occurring prior to termination of the plan, even if the suit is groundless or fraudulent.
(b) 
The city may investigate, negotiate, or settle any claim, as the city determines necessary or appropriate.
(Ordinance 5848, § 1(3), adopted 8/23/1990)
(a) 
The funds will pay each plan claim subject to any limitations contained in the Program Ordinance No. 5847 as set out in article IV of this chapter.
(b) 
To be entitled to payment by the funds for any plan claim, a plan member must:
(1) 
Give notice of loss;
(2) 
Notify the claims board in writing within a reasonable time, to be determined by the board, after receipt of any written or oral notice of any claim that may result in a plan claim but in any event not later than seven (7) calendar days after receipt of such notice. The claims board reserves the right to waive this notice requirement in the event the plan member is legally incapacitated at the time of receipt of such notice;
(3) 
Cooperate with the claims board and, upon the request of the claims board, assist in making settlement, in the conduct of any suit, and in enforcing any right of contribution or indemnity against an individual or organization who may be liable for the act giving rise to a claim, or to the city because of the payment by the city of a plan claim;
(4) 
Cooperate fully in the investigation and defense of any plan claim made against the plan member including but not limited to, attendance at any hearing or trial held in connection with a plan claim and assisting in discovery, securing and giving evidence and obtaining the attendance of witnesses;
(5) 
Not give any oral or written statement or enter into any stipulation or agreement concerning a claim resulting in a plan claim, except upon advice of the city attorney or his designee or when questioned by a police officer at the scene of an accident;
(6) 
Not, except at the plan member's own cost, voluntarily make any payment, assume any obligation, or incur any expense with respect to any claim resulting in a plan claim without the consent of the claims board;
(7) 
Deliver to the city attorney or his designee, promptly upon receipt, any demand, summons, notice, or other process received by the plan member in connection with any claim that may result in a plan claim;
(8) 
Comply with the claims administration procedures of the claims board; and
(9) 
Perform the duties and comply with the requirements imposed on the plan member by this article or by the program ordinance (article IV).
(Ordinance 5848, § 1(4), adopted 8/23/1990)
(a) 
The city will provide legal representation for a plan member or former plan member in a claim, except an excluded action, in which the asserted or alleged liability of the member results from a covered act occurring prior to termination of the plan.
(b) 
The city attorney or his designee shall select, supervise and/or retain, if applicable, attorneys, experts, and investigators he deems necessary in connection with the defense of any plan claim.
(c) 
If the city attorney determines that there exists a conflict of interest for the city attorney to represent a plan member (pursuant to subsection (a) of this section), the city will pay the reasonable fee of a private attorney to represent the plan member. The private attorney will be selected by the claims board.
(Ordinance 5848, § 1(5), adopted 8/23/1990)
If payment of a plan claim or legal representation is provided to a plan member under the plan, the city is subrogated to the plan member's rights of recovery against any individual or organization to the extent of the city's payment or liability for payment. A plan member shall execute and deliver to the claims board such documents as are necessary to secure this right of subrogation in the sole opinion of the city attorney or his designee. A plan member shall not do anything after a plan claim is incurred to prejudice this right.
The plan member shall:
(1) 
Cooperate with the claims board and, upon the request of the claims board, assist in making settlement, in the conduct of any suit, and in enforcing any right of contribution or indemnity against an individual or organization who may be liable to the city because of the payment by the city of a plan claim;
(2) 
Attend any hearing or trial held in connection with a plan claim and assist in discovery, securing and giving evidence, and obtaining the attendance of witnesses.
(Ordinance 5848, § 1(6), adopted 8/23/1990)
If the city denies coverage under the plan to a plan member, the plan member may seek a determination of whether the member is entitled to such coverage from a court of proper jurisdiction.
(Ordinance 5848, § 1(7), adopted 8/23/1990)
Nothing contained in this article shall be construed as creating a right or cause of action against the city or a plan member or as giving a right to a third party to institute or maintain a suit that would not otherwise exist under law as a legal claim against the city or a plan member.
(Ordinance 5848, § 1(8), adopted 8/23/1990)
In the course of carrying out its responsibilities, the claims board and its members shall be indemnified and held harmless by the city for any act or omission and the program shall pay all attorney fees necessary in its defense.
(Ordinance 5848, § 1(9), adopted 8/23/1990)
The claims board is responsible for the administration of the plan in accordance with its terms, subject to the superior authority of the city council. In the course of carrying out this responsibility, the claims board shall interpret and apply the provisions of this article.
(Ordinance 5848, § 1(10), adopted 8/23/1990)
(a) 
The self-insurance afforded by this article is primary self-insurance, except when (b) below applies. When this self-insurance is primary and the plan member has other insurance which is stated to be applicable to the plan claim the amount of the fund's liability under this article shall not be reduced by the existence of such other insurance.
(b) 
If there is other insurance against a loss covered by the self-insurance afforded by this article, the self-insurance afforded by this article shall be excess insurance over any other valid and collectible insurance, whether primary, excess or contingent on any other basis, which is maintained by any person that is not a plan member.
(Ordinance 5848, § 1(11), adopted 8/23/1990; Ordinance 6365, § 2, adopted 1/20/1994)
The rules of construction as found in section 1-2 of the Code of Civil and Criminal Ordinances shall apply in interpreting this article. This article may be repealed or amended at any time, subject to existing rights of plan members under section 27A-144 of this article, and the city may modify or terminate the plan at any time.
(Ordinance 5848, § 1(12), adopted 8/23/1990)
This article shall not operate to repeal or affect any other ordinance of the city except to the extent that the provisions thereof are inconsistent or in conflict with the ordinance enacting this article, in which case the provisions of this article shall govern.
(Ordinance 5848, § 1(13), adopted 8/23/1990)
The terms and provisions of this article shall be deemed to be severable and if the validity of any section, subsection, sentence, clause or phase of this article should be declared to be invalid, the same shall not affect the validity of any other section, subsection, sentence, clause or phrase of the article.
(Ordinance 5848, § 1(14), adopted 8/23/1990)
The regulations provided in this article are hereby declared to be governmental and for the health, safety, and welfare of the general public.
(Ordinance 5848, § 1(15), adopted 8/23/1990)
This article does not grant any right to any plan member in, or to the risk management fund created by the program ordinance (article IV).
(Ordinance 5848, § 1(17), adopted 8/23/1990)