la department of justice litigation division january 18, 2006 by elaine b. patin indemnification of...

LA DEPARTMENT OF JUSTICELA DEPARTMENT OF JUSTICELITIGATION DIVISIONLITIGATION DIVISION

JANUARY 18, 2006JANUARY 18, 2006

BYBY ELAINE B. PATIN ELAINE B. PATIN

INDEMNIFICATION OF STATE INDEMNIFICATION OF STATE EMPLOYEES EMPLOYEES

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. 13:5108.1 Indemnification of officers and employees of the state; civil rights; representation by attorney general

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 actby 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.

Claim, demand, suit, complaint or petition seeking damages

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

A demand under any federal statute:

Due process violations Employment discrimination Sexual discrimination Racial discrimination

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

13:5108.1(B) – Coverage Process

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.

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.

“COVERED INDIVIDUALS”

CURRENT EMPLOYEES OF STATE AGENCIES

Highway Workers Prison Guards Social Workers

HEADS OF AGENCIES IN OFFICIAL OR PERSONAL CAPACITYPART-TIME WORKERSPHYSICIANS WHETHER EMPLOYEES OR UNDER CONTRACT

PERSONS WHO MAY BE “ COVERED INDIVIDUALS”

FORMER STATE EMPLOYEES ----- Depends on date of incident

LEGISLATIVE AIDES COURT REPORTERS STUDENT WORKERS

PERSONS WHO ARE NOT “COVERED INDIVIDUALS

EMPLOYEES OF CITIES, PARISHES, LEVEE DISTRICTS, SCHOOL BOARDS

DISTRICT ATTORNEYS ASSESSORS CORONERS MAYOR’S COURTS CITY COURT

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

NOTIFY THE ATTORNEY GENERAL’S OFFICE

Charles C. FotiAttorney GeneralLouisiana Department of JusticeLitigation DivisionPost Office Box 94005Baton Rouge, Louisiana 70804-9005Tel: (225)326-6300Fax: (225)326-6490

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/dfcRev. 01/04

Send to the Attorney General’s office the following information:

1. Name of the state employee or official and the job title.

2. Name of the state entity employing the defendant.

3. Name of office or division within the agency where thedefendant works and the work location if different

4. Name of supervisor, if known

5. Address of agency

6. Contact numbers: office telephone, fax number, cell number

7. If the defendant is no longer working at the agency, provide themost recent contact information.

8. Date of service of the lawsuit

9. How the service was made (personal, mail, or domiciliary) and name of person accepting service of the lawsuit

10. Any additional information that might be helpful with thelawsuit. For example, if the defendant has been disciplined ordischarged and it is related to the allegations in the lawsuit let us know.

SAMPLE I I am an employee_____________________at

______________ a member of the ______. I have been named, made a defendant, or served with the lawsuit or claim referred to above. This claim arises through my employment with the _____________ and I hereby request that the State of Louisiana defend and, if necessary, indemnify me in this matter. The information regarding the claim is as follows:

1. Name of Official/Employee/Department sued:2. Name of University within the University

System:3. Date of Service: I was notified by

_______of the suit by phone and given a copy of the suit by

__________4.Type of Service: I received a copy of the suit

at work from__________________

SAMPLE II Attached are the documents that were served

to us for the above matter. We are enclosing an assignment sheet and

ask that you provide us the ORM information and forward it to the AG’s office so that they can advise to which attorney this case has been assigned.

We request that the Attorney General’s office provide legal representation for Trooper ___________ and the Office of State Police through the Department of Public Safety & Corrections.

SAMPLE III

On behalf of the University of _________________ and the employee (official) named below, I would like to request that your office defend and indemnify the employee (official) named in the suit. I have enclosed a copy of the citation and petition for damages served upon the employee and the date and manner of service is indicated below.

1.Name of the person sued:2.Name of institution or university within the University of Louisiana System3.Date of service: July 30, 20034.Type of service: Delivered by Sheriff’s Office at work

The person listed above is an official employee of the University _________________ and this claim or suit arises from that employment.

SAMPLE I Attached please find a Petition in the

above referenced matter, which we are forwarding to your office for appropriate handling and representation of the Department, its employees, and agents.

SAMPLE II Attached please find a copy of the

plaintiff’s original petition and request for disclosure has been filed in the above referenced matter. We ask that the necessary steps be taken to protect the interest of the university and its named employees.

AGENCY RECORDS

May be lost or destroyed

Substitutions or Duplicates

LOCATING EMPLOYEES

• Layoffs and Resignations

• Last known address

Fine’