LA DEPARTMENT OF JUSTICE LITIGATION DIVISION CIVIL RIGHTS SECTION – 2004 CLE SEMINAR March 10, 2004 INDEMNIFICATION OF STATE EMPLOYEES

Tonya Trojan, diehard USC football fan and state employee speaks at a seminar where she encounters Mike Bengal, rabid LSU sports fan and state employee. Mike is deeply offended by Tonya’s use of USC images during the seminar and assaults Tonya with the LSU flag.

La. Const of 1974, Art. 12, section 10 (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property. (B)Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.

Public Policies Underlying Indemnification – competing views mandate coverage for state employees in order that they can perform their duties without worry. state would promote wrongdoing by its officials if they were automatically indemnified for their intentional acts. The innocent injury victim should be protected.

The recognized public policy of the state is that liability insurance is issued for the protection of the general public as well as the security of the insured. These public policies must be balanced in accord with the function performed by liability insurance and the expectations of a reasonable insurance buyer. Young v. Brown, 658 So.2d 750, 753 (La. App. 3d Cir. 1995)

Louisiana Governmental Claims Act, LSA- R.S. 13:5101 et seq. Acts 2000, 1st Ex Session, No. 65, sec. 1 LSA-R.S. 13: Indemnification of officers and employees of the state; civil rights; representation by attorney general

ORM State EE DOJ

The Coverage Review ORM as insurer State employee as insured DOJ as defense counsel

Risk Litigation’s 5108 review Screening Obtaining service information Contacting state workers Representation forms

Charles C. Foti Attorney General Louisiana Department of Justice Litigation Division Post Office Box Baton Rouge, Louisiana Tel: (225) Fax: (225) Re:_________________________ v.________________________ JDC/Docket number:__________________________________ Dear General Foti: I am requesting representation from the Attorney General’s Office. I was named as a defendant in the above referenced lawsuit. A copy of the lawsuit was (check one) ____________left at my place of employment ____________left at my home address ____________given to me personally at my place of employment ____________given to me personally at my home address 0n_____________________________, 200_(date petition was served). ___________________________Date: _________________________ Signature ___________________________ Printed Name /dfc Rev. 01/04

13:5108.1(A)(1) The state shall defend and indemnify a covered individual against any claim, demand, suit, complaint or petition seeking damages filed in any court over alleged negligence or other act by the individual, including any demand under any federal statute when the act that forms the basis of the cause of action took place while the individual was engaged in the performance of the duties of the individual’s office or employment with the state.

Who is a covered individual? 13:5108.1(E) (1)An official, officer, or employee holding office or employment: –(a) In the executive branch of state government or in any department, office, division, or agency thereof. –(b) In the legislative branch of state government or in any house, committee, or office thereof. –(c) In the state supreme court or in the office of the clerk thereof or office of judicial administrator thereof, in one of the circuit courts of appeal or in the office of clerk thereof, or in of the family, juvenile, or judicial district courts of the state or in the offices of the judicial administrators thereof. –(d) In one of the deep-water ports, deep-water port commissions, or deep-water port, harbor, and terminal districts.

(2)A physician who either contracts with or provides services on behalf of the state or any of its departments, whether compensated or not, in treating and performing evaluations of persons when such persons cause harm to third parties. For the purposes of this Section, such physicians who provide services under contract shall be deemed to be employees of the contracting agency.

Who is not a covered individual? 13:5108.1(E)(3) An official, officer, or employee of a municipality, ward, parish, special district, including without limitation a levee district, school board, parish law enforcement district, or any other political subdivision or local authority other than a deep-water port, deep-water port commission, or deep water port, harbor, or terminal district whose functions have not been transferred to a state department or office or agency thereof. District attorneys, sheriffs, assessors, clerks of district courts, coroners, justices of the peace, constables, mayor’s courts, city courts, marshals, nor the officials, officers, or employees thereof.

Claim, demand, suit, complaint or petition seeking damages The remedy sought determines whether the claim will be handled by the Litigation Division. Suits seeking contractual damages or suit on open account would not be handled in this Division.

Alleged negligence or other act…including any demand under any federal statute

individual was engaged in the performance of the duties of the individual’s office or employment with the state. Shorthand- course and scope of employment

13:5108.1(B) – Coverage Process Time constraints (1) Within ten days of the time the covered individual is served…he shall deliver the original or a copy thereof to the attorney general. Notice requirement (1)…Delivery of such a summons, complaint, process, notice, demand, or pleading constitutes a request for representation under this Section and constitutes a prerequisite to indemnification by the state.

Attorney General to investigate (2)…the attorney general shall investigate, by examining the face of the complaint, process, notice, demand, or pleading, and any other information available…whether the covered individual was engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened.

Decision to Defend R.S. 13:5108.1(B)(3) (3) If the attorney general concludes that the covered individual was engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened and that the covered individual was free of criminal conduct, then the attorney general shall provide a defense to the covered individual.

Attorney General makes coverage decision If the attorney general decides not to provide a defense, (3)…Such a decision shall be communicated in writing to the covered individual and the head of the department of the state in which the individual is employed within ten working days of delivery of the petition to the attorney general.

Manner of Communication R.S. 13:5108.1(B)(3) The notice is sufficient if it is sent properly addressed to the covered individual at his place of work, his home, or any other place where he may be found by U.S. Postal Service, third party commercial carrier for no more than three day delivery (UPS or FedEx ?), facsimile, or electronic mail and to his departmental employer.

Time Constraints R.S. 13:5108.1(B)(4) After the notice of denial is provided, …the covered individual or the departmental employer shall have five days from the date of receipt of the denial to provide additional information to the attorney general should the departmental supervisor desire the attorney general’s representation of the covered individual.

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