Follow
Publications: 59 | Followers: 0

WHAT IS A TORT_ - General Counsel

Publish on Category: Birds 0

Defense of State Employees: LAWSUITS and LIABILITY
NC State University Office of General CounselApril 2010
COMMON CAUSES OF ACTION(or what could we be sued for)
Tort claimsContract claimsDiscrimination/Harassment claimsSection 1983 claimsWrongful DischargeViolation of privacy rights or due process
N.C. TORT CLAIM ACTGeneral Statute 143-291
State agencies, and employees and agents acting in their official capacity, may be sued for torts,BUT ONLYFor ordinary negligenceCaused by the state employee or agent (named)Acting within the scope of authorized serviceStatute of Limitations (3 years for negligence and 2 years for wrongful death)
Types of Tort Claims
NegligenceNegligent hiringNegligent supervisionNegligent retention
FOUR ELEMENTS TO A TORT CLAIM
A LEGAL DUTY OF CARE IS OWED TO THE INJURED PARTY;THERE MUST BE A BREACH OF THAT DUTY BY A STATE ACTOR;THE BREACH MUST BE THE PROXIMATE CAUSE OF THE INJURY; andTHERE IS PERSONAL INJURY OR PROPERTY DAMAGE
Defenses and Protections Against Tort Claims
Contributory negligence (limitations on children)Assumption of risk (known and voluntary)Waivers of liability and releasesWorker’s compensation (employees only)Immunity for Volunteers ActPublic Duty Doctrine
Contributory Negligence
NC is one of the few remaining States that still recognizes contributory negligence of the plaintiff as a complete bar to recovery in tortA child under the age of 7 is legally incapable of contributory negligenceA child between the ages of 7 and 14 is presumed incapable of contributory negligence.
TORT CLAIM LIMIT
Raised from $500,000 to $1 million for torts committed on orafter August 27, 2007
Jurisdiction for Official Capacity Tort Claims
N.C. Industrial Commission(appeal to the Court of Appeals)
Jurisdiction for Individual Capacity Tort Claims
Superior Court(appeal to the Court of Appeals)
BREACH OF CONTRACT
Contracting party alleges that university did not meet obligations under contractMust have authority to sign contract; otherwise state employee may be personally liable for the breachDamages are typically for actual damages; not consequential or liquidated.
Discrimination/Harassment
Title VII, Title IX, ADA, ADEA claimsUniversity as a federal contractor is the proper party to be sued in federal courtIndividuals are not liable under the civil rights actDamages capped at $300,000 for public universities plus attorney’s fees
42 U.S.C. 1983
Federal civil action for deprivation of constitutional rights
Key Points to a Section 1983 Case
The State actor’s conduct must have violated a constitutional rightThe constitutional right must be clearly establishedDeliberately indifferent or egregious official conductNo damage capSame statute of limitations
DEFENSE OF STATE EMPLOYEES ACTGeneral Statute 143-300.3et seq.
THE STATEMAYDEFEND EMPLOYEES AND AGENTS IN LAWSUITS BROUGHT AGAINST THEM PERSONALLY FOR ACTS/OMISSIONS IN THE COURSE AND SCOPE OF THEIR AUTHORIZED EMPLOYMENT
Key Points of Defense
Covers civil and criminal liabilityAttorney General authorizes providing the defense and hassolediscretion to decideEmployee must request the defenseCovers employee in his/her official (“title”) or individual capacity
Grounds for Refusal of Defense
when the act or omission is not within the scope and course of employment (e.g. harassment);there was fraud, corruption or actual malice;there would be a conflict of interest with the State; orthe Attorney General decides that it would not be in the best interests of the State.
Four Methods for Providing Defense
Attorney General’s OfficeAG authorizes private counselAG authorizes the purchase of insurance which requires that the insurer provide the defenseAG authorizes agency counsel
Initiation or Settlementof a Lawsuit
The authority to initiate and settle lawsuits in the name of UNC, and on behalf of the constituent institution lies with the UNC Board of Governors.UNC Policy 200.5 sets forth the rules for both initiation and settlements.
Payment of Judgments or Settlements
State must have provided a defenseNCSU is responsible for first $150,000State poolmaypay next $850,000State’s excess liability insurance policyPersonal insurance
Settlements are public records (N.C.G.S. 132-1.3)BOG policy 200.5AG approval for amounts of $75k or greater
State’s Excess Liability Insurance
$10 million per individual$10 million per occurrence$25 million annual aggregatePays for judgments in excess of the tort claim limits
Provides insurance for employees sued in their individual capacitiesExclusions for pollution, asbestos, criminal acts, immoral acts, automobiles, watercraft, mold, terrorism, malpractice
OTHER TYPES OF INSURANCE
The State of NC is self insuredHowever, there are various, specific policies to cover certain activities such as motor pool vehicles, boats, student internships, study abroad, and medical malpracticeWe are not authorized to purchase insuranceAll insurance must be approved and purchased by the Department of Insurance
Notification
Contact the Office of General Counsel (515-3071) immediately upon threat of litigation or service of actual lawsuit
Litigation Holds and E Discovery
Upon notification or threat of a lawsuit, the General Counsel will send a “litigation hold” letter to pertinent personnelAll records, including emails, must be maintained and preserved pertaining to the potential or actual lawsuit

0

Embed

Share

Upload

Make amazing presentation for free
WHAT IS A TORT_ - General Counsel