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, LSAR.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
State EE
ORM
DOJ
• The Coverage Review
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ORM as insurer
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State employee as insured
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DOJ as defense counsel
• Risk Litigation’s 5108 review
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Screening
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Obtaining service information
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Contacting state workers
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Representation forms
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Charles C. Foti
Attorney General
Louisiana Department of Justice
Litigation Division
Post Office Box 94005
Baton Rouge, Louisiana 70804-9005
Tel: (225)326-6300
Fax: (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
/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.
•
Fine’