NO. 62.  AN ACT RELATING TO TORT CLAIMS AGAINST MUNICIPAL EMPLOYEES.

(H.453)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  24 V.S.A. § 901a is added to read:

§ 901a.  TORT CLAIMS AGAINST MUNICIPAL EMPLOYEES

(a)  As used in this section, “municipal employee” means any person employed for a wage or salary by a municipality; a volunteer whose services have been requested by the legislative body of a municipality; a volunteer whose services have been requested by a municipal officer; or a volunteer whose services have been requested by an employee of the municipality acting within the scope of the employee’s authority.

(b)  When the act or omission of a municipal employee acting within the scope of employment is alleged to have caused damage to property, injury to persons, or death, the exclusive right of action shall lie against the municipality that employed the employee at the time of the act or omission; and no such action may be maintained against the municipal employee or the estate of the municipal employee.

(c)  When a municipality assumes the place of a municipal employee in an action as provided in subsection (b) of this section, the municipality may assert all defenses available to the municipal employee, and the municipality shall waive any defense not available to the municipal employee, including municipal sovereign immunity.

(d)(1)  The municipality shall defend and indemnify a municipal employee for any legal costs if a municipal employee is improperly named as a defendant in a proceeding.

(2)  The municipality shall defend or, when a cause of action contains elements not covered by insurance, reimburse legal defense and expense costs incurred by a municipal employee in the event that a municipal employee is named as a party under subsection (e) of this section and the employee is dismissed from the matter before the entry of a judgment by the court or the acts or omissions of the employee are determined not to be willful, intentional, or outside the scope of the employee’s authority.

(e)  This section shall not apply to an act or omission of a municipal employee that was willful, intentional, or outside the scope of the employee’s authority.

(f)  When two or more conflicting statutes provide protection to a municipal employee whose act or omission is alleged to have caused damage to property, injury to persons, or death, a court shall apply the statute that grants greater protection to the municipal employee.

Sec. 2.  REPORT ON UNINSURED MOTORIST COVERAGE

(a)  The department of banking, insurance, securities, and health care administration shall report to the general assembly on underinsured motorist coverage in the state.  The report shall include:

(1)  An analysis of the claim payments before the Supreme Court’s decision in Caldwell v. Allstate Insurance Company, to determine whether the common practice in the industry conformed with the court’s interpretation of subsection 941(f) of Title 23.

(2)  An analysis of whether companies have adjusted rates or coverage as a result of the supreme court’s opinion in Caldwell v. Allstate Insurance Company.

(3)  An analysis of S.119 and whether the proposed statutory modifications would result in a modification of rates or coverage for underinsured motorists.

(4)  An examination of whether insurers are required to notify an insured that underinsured payments are reduced when there are multiple claimants on an underinsured motorist policy.

(5)  An examination of how other states address multiple claims against an underinsured motorist policy.

(b)  The department shall file its report on or before January 15, 2004 with the House and Senate Committees on Judiciary.

Sec. 3.  24 V.S.A. § 1981 is amended to read:

§ 1981.  ENFORCEMENT OF ORDER FROM JUDICIAL BUREAU

(a)  Upon entry of a judgment after hearing or entry of default by the hearing officer, subject to any appeal pursuant to 4 V.S.A. § 1107, the person found in violation shall have up to 30 days to pay the penalty to the judicial bureau.  Upon the expiration of the period to pay the penalty, the person found in violation shall be assessed a surcharge of $10.00 for the benefit of the municipality.  All the civil remedies for collection of judgments shall be available to enforce the final judgment of the judicial bureau.

(b)  In addition to any other civil remedies available by law, a final judgment of the judicial bureau that has not been satisfied within 30 days shall, upon due recordation in the land records of the town in which any real or personal property of the defendant is located, constitute a lien upon that real or personal property, except for motor vehicles as defined by 23 V.S.A. § 4(21), and may be enforced within the time and in the manner provided for the collection of taxes pursuant to subchapter 8, chapter 133 of Title 32.

(c)  The supreme court shall establish rules which provide for an expedited process in small claims court for the collection of judgments to enforce the orders of the judicial bureau.

(d)  Upon motion of the municipal attorney, grand juror or other person designated by the legislative body of the municipality and proof by affidavit that the person found in violation has not paid the penalty, in the time set forth in subsection (a) of this section, the bureau shall send to the person found in violation a notice that the penalty must be paid within 20 days of receipt of notice.  The notice shall include a warning that failure to pay the penalty within 20 days of the notice will result in a proceeding for contempt before the district court, and a $10.00 surcharge has been added to the penalty.

(e)  If the penalty is not paid within the 20 days the bureau shall send a notice to the district court in the county in which the violation occurred.  The clerk of the district court shall forthwith provide notice to the person of a hearing for civil contempt proceedings pursuant to 12 V.S.A. § 122 for the failure to pay the penalty imposed by the bureau.  A finding of contempt for failure to pay the penalty shall include an order that a nonpayment surcharge of an additional $10.00 shall be added to the penalty and surcharge set forth in subsection (a) of this section for the benefit of the municipality.

Sec. 4.  REPEAL

Sec. 1 of No. 130 of the Acts of the 2001 Adj. Sess. (2002) (findings related to municipal immunity) is repealed.

Sec. 5.  EFFECTIVE DATE

(a)  This section shall take effect upon passage.

(b)  Secs. 1 and 3 of this act shall take effect for actions and omissions occurring on or after July 1, 2003.

Approved:  June 11, 2003