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HomeMy WebLinkAboutIR 8169 INFORMAL REPORT TO CITY COUNCIL MEMBERS No. ,u cso T" To the Mayor and Members of the City Council January 19, 1999 X uI n" Subject: Ian DISPOSITION OF CLAIMS AGAINST THE CITY OF FORT WORTH Purpose The purpose of this Informal Report is to provide periodic information to the City Council regarding the disposition of claims made against the City of Fort Worth. Claims Reporting The City Charter requires that persons asserting claims for damages for death, personal injury or damage to property file written notice with the city council within one hundred eighty (180) days after the event giving rise to the claim. The City Council thus receives a list weekly of all claims filed through the Risk Management Department since the last listing was provided (usually one week). 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) 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 be-inning of each fiscal year, these sums 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, including costs for any outside attorneys, and funds to payment of recommended 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 LISSUED BY THE CITY MANAGER FORT WORTH, TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 8169 January 19, 1999 TE Iro To the Mayor and Members of the City Council Page 2 of 3 X Subject: 1873 DISPOSITION OF CLAIMS AGAINST THE CITY OF FORT WORTH and/or its employees. There is much communication and coordination between the Department of Law and the Risk Management Department both on administrative matters and in defense of claims and lawsuits. Immunities, Defenses, and Limitations on Liability (Negligence) Many of the operations of the City are deemed to be "governmental functions" listed in 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 performance 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 omission gave rise to the claim would be personally liable to the claimant according to Texas law. Some of these governmental functions are listed on Attachment 1. Z� Because of this preserved immunity referenced above, there are many claims for property damage which are denied. These include property damage resulting from sewer back-ups, 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 Z�l 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 "governmental 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 sued 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. /)k' 00�0 — ISSUED BY THE CITY MANAGER FORT WORTH,TEXAS INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 8169 00—OTEN'o January 19, 1999 To the Mayor and Members of the City Council page 3 of 3 X Subject: Im DISPOSITION OF CLAIMS AGAINST THE CITY OF FORT WORTH Separately, State law provides for the defense of peace officers and fire fighters who are sued for official acts within the scope of their emloyment. Claims of Violations of Civil Rights The immunities 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 certain claims may be made against individual employees, volunteers, officers, and board, commission and committee members. The defense and indemnification provisions of the Personal Liability Indemnity Plan do 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. Volume and Disposition of Claims over the Past Six Years Attachment 3 shows the volume and disposition of claims that have been disposed by the Risk Management Department over the past six fiscal years. Not included are the lawsuits that have been disposed over the same period. The Department of Law has provided information regarding the disposition of lawsuits for this period. Attachment 4 indicates the average paid per claim paid (settled) and the average paid for all claims disposed per year for the past three fiscal years. Attachment 5 shows the ranges of claim settlements made in the FY 1997-98. Please let me know if you have any questions regarding this information or if there is additional in- formation that you would like to have. Respectfully submitted, 5" f . &µms Bob Terrell City Manager Z) Attachment LISSUED BY THE CITY MANAGER FORT WORTH,TEXAS 4F ATTACHMENT 1 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 ♦ waterworks ♦ 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 Or",, ATTACHMENT 2 ARTICLE IX, PERSONAL LIABILITY INDEMNITY PLAN Sec. 2-290. Definitions. For the purposes of this article, (a) Plan member means: (1) Any employee, volunteer, or elected or appointed officer of the city, any former employee, volunteer, or officer of the city, or the estate of an employee, volunteer, or officer or former employee,volunteer or officer; and (2) Any member or former member of a city board, commission or committee created by Charter, ordinance or resolution of the city, or the estate of said member. (b) City means the City of Fort Worth, Texas. (c) Actual damages means compensatory damages only and interest, if any, which has accrued thereon but does not include punitive or exemplary damages, fines, or penalties. (d) City vehicle means a vehicle or mobile equipment either leased or owned by the city or the personal vehicle of a plan member when used in the scope and course of the plan member's duties. (e) City attorney means the city attorney of the City of Fort Worth, Texas, or any of his assistants. Volunteer means only a person who has been approved as a volunteer by the city and who is working under the direction and supervision of an employee or officer of the city. (Ord. No. 9943, § 1, 9-1-87) Sec. 2-291. Coverage. (a) The city shall pay the actual damages, as provided in section 2-293, arising from any claim, lawsuit or judgment against a plan member,whether or not the city is a party defendant, if said damages. (1) Result from an act or omission of the plan member while in the scope and course of his employment or office with the city or during his assigned volunteer work with the city; and (2) Arise from a cause of action for negligence. (b) This section shall apply only to acts or omissions occurring or alleged to have occurred after the effective date of this article and to acts or omissions occurring or alleged to have occurred prior to the effective date of this article which are not barred by any statute of limitations. This section shall not apply to any lawsuit pending on the effective date of this article. (Ord. No. 9943, § 1, 9-1-87) Editor's note--The effective date of Ordinance No. 9943, from which this article derives, is September 1, 1987. /F Sec. 2-292. Cooperation of plan member required. (a) To be entitled to coverage, a plan member must: (1) Notify risk management within five (5) days after receipt of any written notice of claim; (2) No later than five (5) days after receipt of a lawsuit, notify the city attorney and request in writing legal representation by the city attorney on a form provided by the city attorney for that purpose; (3) Assist and cooperate with the city and its authorized representatives in the investigation of such claim or lawsuit; (4) Attend hearings, depositions, and trials, assist in the conduct of the lawsuit, in effecting settlement, in securing and giving evidence, in obtaining the attendance of witnesses at trial, and in giving a written statement(s) to the city or its representatives, and cooperate in enforcing any right of contribution or indemnity; (5) Not give any oral or written statement concerning a lawsuit or claim, except upon the advice of the city attorney or risk management or when questioned by a police officer at the scene of an accident; and (6) Not voluntarily make any payment, assume or admit any liability, settle or agree to settle any claim or lawsuit, incur any expense, or assume any obligation with respect to a claim or lawsuit, except upon advice and consent of the city attorney or risk management. (b) The failure or refusal of a plan member to comply with any of the above requirements may be grounds for denial of coverage or legal representation under this article. (Ord. No. 9943, § 1, 9-1-87) Sec. 2-293. Limits of coverage. (a) The city will pay the actual damages for any claim, lawsuit, or judgment covered by this article. Payments under this article by the city will not exceed the amounts allowable under state law. (b) In addition to the coverage provided in subsection (a), above, the city will pay: (1) All reasonable costs and expenses incurred in investigating and defending the claim or lawsuit; (2) Court costs; and (3) Attorney's fees ordered by the court to be paid by the plan member. (Ord. No. 9943, § 1, 9-1-87) Sec. 2-294. Exclusions. This article shall not apply to: (a) Claims or lawsuits brought by the city against a plan member; (b) Claims or lawsuits for official misconduct; (c) Acts or omissions constituting gross negligence, criminal negligence, or recklessness, (d) Damages arising out of a willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the plan member; (e) Damages arising out of acts committed by or at the direction of the plan member with affirmative dishonesty, or actual intent to injure, deceive, or defraud; (f) Any act or omission committed by a plan member while the plan member is operating a city vehicle without permission or authority, or while the plan member is operating a city vehicle in the course of personal or private business; (g) Liability assumed by the plan member under a contract or agreement, unless the contract or agreement has been entered into with the consent or at the request of the city; (h) Any obligation for which the city may be liable under the Texas Workers' Compensation Act, Unemployment Compensation Laws, or any similar law; (i) Any act or omission which occurs during a period of time in which the plan member is engaged in outside employment or is rendering contractual services to someone other than the city; (j) Any claim or lawsuit alleging violations of constitutional rights, civil rights, or federal law; provided that nothing in this subsection shall prohibit the city in its discretion on a case-by- case basis from otherwise providing 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; (k) Any plan member who is already covered by an insurance contract or other plan of self- insurance authorized by statute for acts or omissions occurring while in the scope and course � of his employment or duties, up to the limits of said insurance contract or plan. (Ord. No. 9943, § 1, 9-1-87; Ord. No. 10780, § 1, 2-5-91) See. 2-295. Subrogation. The city shall be subrogated to the plan member's rights of recovery against any person, firm, corporation, or organization, and the plan member shall execute and deliver to the city attorney whatever documents are necessary to secure those rights and shall do nothing to prejudice those rights. (Ord. No. 9943, § 1, 9-1-87) Sec. 2-296. Defense and legal representation. (a) The city shall defend any claim or lawsuit against the plan member seeking damages to which this article applies even if any of the allegations of the claim or suit are groundless, false, or fraudulent. (b) The city attorney shall provide the legal representation to a plan member in any claim or lawsuit in which the plan member is covered by this article. (c) 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 entitled to coverage under this article, the city will pay the reasonable fees of outside legal counsel to represent the plan member. The 4r 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 shall not be liable for any settlement of any claim or lawsuit effected without its consent. (f) The city reserves the right to assert any defense and make any settlement it deems expedient. (Ord. No. 9943, § 1, 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, 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, § 1, 9-1-87) 0101111111 m a c� in Ci N G1 CCD [1 0 m © Q c a � U � ° H � <C ii a) LL W W a O � r a) U N Tg p a) >- O N 1 U- cv co m LL ryry U7 �.. 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