ORD 1991-05 - Amending Ch. 2, Employee Liabiltiy Insurance Coverage 04-09-1991ORDINANCE N0. 91 -5
AN ORDINANCE AMENDING CHAPTER 2, ADMINISTRATION, OF THE
HUNTSVILLE CODE OF ORDINANCES, AS AMENDED; CREATING THE
CITY OF HUNTSVILLE OFFICER AND EMPLOYEE LIABILITY PLAN;
PROVIDING COVERAGE, LIMITS OF COVERAGE, EXCLUSIONS, AND
RELATED PROVISIONS FOR THE INDEMNIFICATION AND DEFENSE
OF CITY OFFICERS AND EMPLOYEES; PROVIDING A SAVING
CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING
AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS:
SECTION 1. That Chapter 2, Administration, of the Huntsville Code of
Ordinances, as amended, is amended by adding Article VI to read as
follows:
ARTICLE VI. OFFICER AND EMPLOYEE LIABILITY PLAN
SEC. 2 -70. DEFINITIONS.
(A) City means the City of Huntsville, Texas.
(B) City Vehicle means a vehicle or mobile equipment either leased
or owned by the City.
(C) Loss 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.
(D) Plan means the City of Huntsville Officer and Employees
Liability Plan.
(E) Plan Member means a person who is:
(1) an employee of the City;
(2) a member of a City board, commission, or committee
created by charter, ordinance, or resolution of the
City;
(3) a member or former member of the City Council; or
(4) 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.
SEC. 2 -71. COVERAGE.
(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.
SEC. 2 -72. DEFENSE.
(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, and settle any claim or
suit as it determines necessary.
SEC. 2 -73. LIMITS OF COVERAGE.
(A) The City will pay losses covered by this plan that a plan
member is legally obligated to pay, except, that in cases
arising under the Texas Tort Claims Act (Chapter 101, Texas
Civil Practice and Remedies Code) the City will pay 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 government.
(B) In addition to the coverage provided in paragraph (A), the
City will pay:
(1) the City's expense 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) attorney's fees ordered by the court to be paid by the
plan member.
SEC. 2 -74. NOTICE OF OCCURRENCE, CLAIM, OR SUIT; COOPERATION.
To be entitled to coverage under the plan a plan member must:
(A) notify the City Attorney as soon as practicable upon receipt
of written notice of a claim or lawsuit, but no later than
three working days after receipt;
(B) cooperate with the City Attorney and, upon the City Attorney'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;
(C) attend hearings and trials and assist in securing and giving
evidence and obtaining the attendance of witnesses; and
(D) 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;
(E) 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.
SEC. 2-75. PLAN PERIOD.
This plan covers only acts or omissions occurring or alleged to have
occurred:
(A) while the plan is in effect;
(B) before the plan was in effect and which are not barred by any
statute of limitations; and
(C) if the plan is canceled, while the plan is in effect and which
are not barred by any statute of limitations.
SEC. 2-76. EXCLUSIONS.
Coverage under this plan does not apply to a claim or lawsuit that is
brought against a plan member:
(A) by the City;
(B) 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;
(C) 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;
(D) for liability assumed by the plan member under a contract,
unless the contract is entered into at the request of the
City;
(E) 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
(F) if the plan member fails to comply with Section V of this
plan.
SEC. 2 -77. SUBROGATION.
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.
SEC. 2 -78. LEGAL REPRESENTATION.
(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 the City Attorney determines that there is a conflict of
interests 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 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.
SEC. 2 -79. DETERMINATION OF COVERAGE.
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 Walker
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.
SEC. 2 -80. NO CREATION OF CAUSE OF ACTION.
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.
SECTION 2.
SECTION 3.
That the Huntsville Code of Ordinances, as amended, shall remain in
full force and effect, save and except as amended by this ordinance.
That the terms and provisions of this ordinance are severable and
are governed by Section 1 -5 of CHAPTER 1 of the Huntsville Code of
Ordinance as amended.
SECTION 4. That this ordinance shall take effect immediately from and after its
passage and publication in accordance with the provisions of the
Charter of the City of Huntsville, and it is accordingly so
ordained.
Passed and approved this 9th
APPROVED AS TO FORM:
a z
day of April
Scott Bounds, City Attorney
Attest:
De haw, ity Secretary
,1991.
W. H. Hodges, ayor
r