Loading...
HomeMy WebLinkAboutIR 8074 INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 8074 oFfgRr� To the Mayor and Members of the City Council {�J s June 10, 1997 EX� Subject: Claims against the City of Fort Worth ei3 Purpose The purpose of this Informal Report is to reiterate the City's procedures for financing and adjusting claims for damages and to provide information regarding the disposition of claims in the past four years. Claim and Lawsuit Payment and Expense Financing The City of Fort Worth is largely self-insured for its general liability, automobile liability, law en- forcement liability, and professional liability exposures. The City has purchased commercial insur- ance for the following liability exposures: ♦ airport liability ($100,000 deductible) ♦ helicopter liability ♦ liquor liability ♦ automobile liability on eleven scheduled vehicles ♦ premise liability (for Employment and Training) off Funds are budgeted annually in each of the City's operating funds representing that fund's allocated cost to finance expected premiums and payouts for costs associated with claims and lawsuits. At the beginning of each fiscal year, these stuns are transferred to Fund 71, Property and Casualty Fund, managed by the Risk Management Department, from which the costs associated with the settlements, judgments, and expenses related to adjusting the claims and defending the lawsuits are paid. Claim Adjusting Procedures The Risk Management Department employs state-licensed claim adjusters to adjust claims asserted against the City. These adjusters receive, acknowledge, and investigate most claims for money dam- ages made against the City. If the matter is not successfully resolved and is ultimately litigated, the Risk Management Department finances the costs associated with the litigation and funds to pay rec- ommended settlements and/or judgments. In their determination of the City's liability for these claims, the claim adjusters investigate the facts of the claim, and they consider the various applicable defenses and immunities conferred on the City and/or its employees. RECORD CITY SM1,11TAIRY''i I FT r O T1,"11, G` ISSUED BY THE CITY MANAGER FORT WORTH, TEXAS Claims against the City of Fort Worth (Continued) Page 2 June 10, 1997 Immunities, Defenses, and Limitations on Liability (Negligence) Many of the operations of the City are declared to be"governmental functions" by the Texas Tort Claims Act. As such, the City retains its immunity from property damage claims under the Act which arise from negligence in the perforniance of those unless ♦ such property damage arises from the operation or use of a motor-driven vehicle or motor-driven equipment, and ♦ the employee whose alleged wrongful act or oinission gave rise to the claim would be personally liable to the claimant according to Texas law. Some of these govenu-nental functions are listed on Attachment 1. Because of this preserved immunity referenced above, there are many claims for property damage which are denied. These include property damage resulting from sewer backups, property damage resulting from hitting potholes, and property damage resulting from police and fire operations. The payment of property damage claims for which the City is clearly immune may be construed as a gift of public funds, a constitutionally prohibited act. In addition to the immunity from property damages, the Tort Claims Act limits the City's financial liability for bodily injury, including death, which results from the performance of its governmental functions. This "cap" is $250,000 per person, and $500,000 per occurrence. Operations of the City not deemed "goverru-nental functions" are"proprietary functions," and the City may be liable for damages in the same amounts and manner as any private entity or person. Defense and Indemnification of Employees, Volunteers, Officers, and Others (Negligence) City employees, volunteers, or elected or appointed officers of the city, and members of a city board, commission, or committee (including former employees, Volunteers, officers or board, commission or committee member or the estates of same) who are stied personally for negligence are entitled to rep- resentation and indemnification according to the terms of the City's Personal Liability Indemnity Plan (Ordinance 9943, September 1, 1987, as amended). A copy of the Plan is attached as Attach- ment 2. Claims of Violations of Civil Rights The im-munities and limitations to liability conferred by the Texas Tort Claims Act do not apply to acts which are alleged violations of constitutional rights, civil rights or federal law. These claims may be made against the City and individual employees, volunteers, officers, and board, commission and committee members. The Personal Liability Indemnity Plan does not apply to these claims, but the Ordinance does not prohibit the city in its discretion on a case-by-case basis from otherwise pro- viding legal representation and paying actual damages, court costs and attorney's fees required to be paid by a plan member in such a claim or lawsuit. Claims against the City of Fort Worth(Continued) Page 3 001 June 10, 1997 Volume and Disposition of Claims over the Past Four Years Attachment 3 shows the volume and disposition of claims which have been disposed by the Risk Management Department over the past four years. Not included are the lawsuits which have been disposed over the same period which will be provided by the Department of Law. Please let me know if you have any questions regarding this information of if there is additional in- formation which you would like to have. Respectfully submitted, Bob Terrell City Manager 6d" Claims against the City of Fort Worth (Continued) Page 4 June 10, 1997 ATTACHMENT SOME OF THE GOVERNMENTAL FUNCTIONS ENUMERATED IN THE TEXAS TORT CLAIMS ACT FOR WHICH THE CITY MAY HAVE IMMUNITY OR LIMITED LIABILITY ♦ police and fire protection and control ♦ health and sanitation services ♦ street construction and design ♦ bridge construction and maintenance and street maintenance ♦ garbage and solid waste removal, collection, and disposal ♦ sanitary and storm sewers ♦ airports ♦ water-works ♦ parks and zoos ♦ museums ♦ libraries and library maintenance ♦ civic, convention centers, or coliseums ♦ community, neighborhood, or senior citizen centers ♦ dams and reservoirs ♦ warning signals ♦ regulation of traffic ♦ recreational facilities, including, but not limited to, swimming pools, beaches, and marinas ♦ parking facilities ♦ building codes and inspection ♦ zoning, planning, and plat approval ♦ engineering functions ♦ maintenance of traffic signals, signs, and hazards ♦ water and sewer service ♦ animal control Claims against the City of Fort Worth Pages S-8 June 10, 1997 ATTACHMENT 2 ARTICLE IX: PERSONAL LIABILITY INDEMNITY PLAN t ADK'IN'iMA?ION 12.294 such indices to be maintained and kept (c) Original municipal public records which are ant by the office of management service microfilmed in compliance with this articls gh the assistance of the departments, wh are determined worthless by the city Co - c Standards Microtllm shall meet the rewire cd be destroyed as directed by the city coon- men of the United Stotts of America Stan cil, vided that notice of proposed destruction Insist tt for archival quality, density, resol Lion or d' ition of thoee original municipal public and de Wilson,except for microfilm intend only records s 11 first be given to the state,11rarian or state a ivist, and, if such records"an, in his far sho -term use, as determined by the cr can- opinion, n for the state lib the records cil thro h approved records retention sac edules. shall be tr theists. (e) Cert ion of microform rtoo+tids depart- (Code 1964, 2 ;Ord, No.87 , } 1, 12.14-82) mental keeper of the city shall eck sand certify that ach microform record is true and Sec. 2.280. Same Certain other records. correct dup on of the original municipal ream% A microform of the city is an original record (a) Municipal in 'ty departments other than those records defin in this article as origi- and will be act ted by any court r administra sal public records ma disposed of upon ap. Live agency of is state, and, wen issued and proval of the records ma er in the office of certified by a dep mental reco, of the management services and �Iega' custodian of city,a copy on pa or film of a icrvfortn record such records in the city depant. will be accepted as certified y of an original record by any court r admi strative agency of (b) Notice of destruction or disposition this state or of the Un led S tes. of all nonpubl c municipal records,,including re- cords series titles, descriptions, in usive dates (f) Public access to bl microform records and volumes, shall first be given to the records The public shall have fr access to information manage/ in the office of management services, in microform records to ich the public is enti- and th,6 proposed destruction shall be to tled under law, Just as�i the microform' record and by the office of management se . 'ces were this original reco (Code 1964, 4 2-65; No. 700, 1 1, 12.14-82) an in compliance with established retard re n /// n schedules. Sec. 2-279. Destruction--O al public rec. e 1964, 4 2.67; Ord. No. 8700, 4 1, 1214$2) ords. Secs. 2.281-2-289. Reserved. (a) Original mcipal records ch are located in city departm, is and are mic med in com- pliance with this article may be d yed as di- ARTICLE 11L PERSONAL LIABILITY rected by the city council with th advice and iNDEMNM PLAN consent of city attorney or attorn y officially performing a duties of city attorney, ess oth- Sec. 2.290. Definitions. erwise req fixed by federal or state law provided that notir of proposed destruction or di itioa For the purposes of this article, of those%riginal municipal public reco shall (a) Plan member means: first be 'ven to the state librarian or sta archi vist, such records are,in his opinion,n (1) �Y employee, volunteer, or elected,or ap- for state library, the records shall be as- p°m� officer of the city, any former em - a volunteer, or officer of the city, or fern thereto. the estate of an employee, volunteer, or ) Any original municipal public record, a officer or former employee, volunteer or of ject matter of which is in litigation, may n ficer;and destroyed until such litigation is final. sum Na a 163 12-290 FORT WORTH CRY CODE (2) Any member or former member of a city See. 2492. Cooperation of plan membtr board,commiaaian or committee created by quirrd. Charter, ordinance or resolution of the city, (a) To be entitled to cover a or the estate of said member. ge, a plan member must: (b) City means the City of Fort Worth,Texas. (1) Notify risk management within tYw(6)days (c) Actual damages means compensatory dam- after receipt of any written notice of claim; ages only and interest, if any, which has accrued (2) No latex than fire(S)days after thereon but does not include punitive or exem• t receipt of a lawsuit,notify for city attorney and request ply damnes`lei'or penalties ' in writing kgxl representation by the city (d) City uthick means a vehicle or mobile equip- attorney on a form provided by the city ment either leased or owned by the city or the attomey Gar that purpose; personal vehicle of a plan member when used in (3) Assist and cooperate with the city and its the Scope and course of the plan member's duties. authorised representatives is the inverati- (e) City attorney means the city attorney of the gation of such claim or lawsuit; City of Fort Worth,Texas,or any of his assistanta. (4) Attend hearings,depositions, cad trials, as. (f) Volunteer means only a person who has been gist in the conduct of the lawsuit, in effect, approved as a volunteer by the city and who is ing settlement, in seaming and giving evi- working under the direction and supervision of dence, in obtaining the attendance of wit. an employee or officer of the city. nesges at trial,and in giving a written state- (Ord. No. 9943, 1 1.9-1.87) ment(s) to the city or its representatives, and cooperate in enforcing any right of con- Free. 2.291. Coverage. tribution or indemnity; (a) The city shall pay the actual damages, as (5) Not give any oral or written statement con- provided in section 2-293,arising from any claim, cerning a lawsuit or claim,except upon the lawsuit or judgment against a plan member, advice of the city attorney or risk manage- whether or not the city is a pasty defendant, if meat or when questioned by a police officer said damages; at the scene of an accident; and (1) Result from an act or omission of the plan (6) Not voluntanly make any payment,assume member while in the scope and course of or admit any liability, settle or agree to his employment or office with the city or settle any claim or lawsuit, incur any ex- during his assigned volunteer work with pease, or assume any obligation with re- the city;and spect to a claim or lawsuit, except upon (2) Arise from a cause of action for negligence. advice and consent of the city attorney or risk management (b) This section shall apply only to acts or omis- (b) The failure or refusal of a plan member to lions occurring or alleged to have occurred after the effective date of this article and to acts or comply with any of the above requirements may omissions occurring or alleged to have occurred be grounds for denial of coverage or legal repre- prior to the effective date of this article which are sensattion ion under this article. (Ord. not barred by any statute of limitations. This N4 9943, 4 1,91871 Section shall not apply to any lawsuit pending on Sec. 2-293. 1.1mits of coverage. the effective date of this article. (Ord. No.9943, 11,9-1.87) (a) The city will pay the actual damages for F,ctitor's cote—The effective date of Ordinance No. 9943, any claim, lawsuit, or judgment covered by this from which this article derives,is September 1. 1967. article. Payments under this article by the city 3upp.No.6 164 ADMPfU'IRATION { !M will not exceed the amounts allowable under:tats (1) Any act or omission which occurs during a law. period of thm in which the plan member is (b) In addition to the coverage provided in sub- engaged in outside employment or is ren- section(a), above,the city will paps derini coat-actual services to someone other than the dt�, (1) All reasonable costs and expenses incurred is investigating and defending the claim W Any claim or lawsuit alleging violations of or lawsuit; constitutional rights, civil rights, or fsd- eral law;provided that nothing in this sub- (2) Court coats;and section shall prohibit the city in its dis+cre- (3) Attorney's fees ordered by the court to be tion on a case-by-case basis fiom othwwise paid by the plan member. providing legal representation and paying (Ord. No.8943, 11.9-1-87) actual damages„ court coats and attorney's fees required to be paid by a plan member in such a claim or lawsuit; Sec. 2-294. Exclusions. This article shall not apply toe Any y as insurance insunce contract or other plan of (a) Claims or lawsuits brought by the city against self insur a authorized by statute for acts a plan member; or omissions oocureing while in the scope and course of his employment or duties,up (b) Claims or lawsuits for official misconduct; to the limits of said insurance contract or (c) Acts.or omissions constituting gross negh- plan. gence,criminal negligence,or recklessness; (Ord. No. 9943, § 1. 9-1-87; Ord. No. 10780, $ 1, 2-5-91) (d) Damages arising out of a willful violation of a penal statute or ordinance committed Sec. 2. . Subrogation. by or with the knowledge or consent of the The city shall be subrogated to the plan mem- ber's rights of recovery (e) Damages arising out of acts committed b g ry against any person, fYrm, ag 8 y corporation, or organization, and the plan mem- or at the direction of the plan member with ber shall execute and deliver to the arty attorney affirmative dishonesty, or.actual intent to whatever documents are necessary to secure those injure,deceive,or defraud; rights and shall do nothing to prejudice those (f) Any act or omission committed by a plan (card. No. 9943. 4 1,9-1$7) member while the plan member is operat ing a city vehicle without permission or authority,or while the plan member is op- Sec. 2-2:96. Defense and legal representation. erating a city vehicle in the course of per- (a) The city shall defend any claim or lawsuit sonal or private business; against the plan member seeking damages to which (g) Liability assumed by the plan member under this article applies even if any of the allegations a contract or agreement, unless the con- of the claim or suit are groundless, false, or tract or agreement has been entered into fraudulent. with the consent or at the request of the (b) The city attorney shall provide the legal city; representation to a plan member in any claim or (h) Any obligation for which the city may be lawsuit in which the plan member is covered by liable under the Texas Workers' Compen. this article. sation Act, Unemployment Compensation (c) If the city attorney determines that there is Laws, or any similar law; a conflict of interest for the city attorney in rep- r Supp.No.18 165 12-296 FORT WORTH CITY CODE resenting a plan member, and the plan member is entitled to coverage under this article,the city wiII pay the reasonable fees of outside legal coun- sel to represent the plan member. The outside counsel shall be selected by mutual agreement of the plan member and the city attorney. (d) In any lawsuit where the city attorney is providing legal representation to a plan member, the plan member may hire or retain additional legal counsel; however, the city shall not pay or reimburse said plan member for the services of said legal counsel. (e) The city &hall not be liable for any settle- ment of any claim or lawsuit effected without its consent. M The city reserves the right to assert any defense and make any settlement it deems ex- pedient- (Ord- No.9943, 11.9-1-87) Sec. 2-297. No defenses waived. Nothing in this article shall be construed as waiving any defense, immunity, or jurisdictional bar available to the city or employee. (Ord- No.9943, 1 1. 9-1-87) Sec. 2.298. No creation of cause of action. Nothing in this article shall be construed as creating a cause of action against the city or plan member nor as the giving of any right to institute or maintain any suit or action which would not otherwise exist or be cognizable under law as a legal claim against the city or a plan member. (Ord. No-9943, 11,9-1-87) Supp..Na IS rM*nest pads is 21.3) 166 Claims against the City of Fort Worth (Continued) Page 9 June 10, 1997 ATTACHMENT 3 UNLITIGATED CLAIMS DISPOSED OVER THE PAST FOUR FISCAL YEARS Total Closed Amount Disposed Denied Referred w/out Payment Settled Paid 1996 551 282 45 57 167 $389,482.65 1995 616 217 55 126 218 $519,644.34 1994 539 209 29 37 264 $792,117.15 1993 391 147 38 27 179 $529,278.52