Bill Text: MS SB2995 | 2010 | Regular Session | Introduced
Bill Title: Tort Claims Fund; exempt MDOT from participation.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [SB2995 Detail]
Download: Mississippi-2010-SB2995-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Highways and Transportation; Judiciary, Division A
By: Senator(s) King
Senate Bill 2995
AN ACT TO AMEND SECTION 11-46-17, MISSISSIPPI CODE OF 1972, TO EXEMPT THE MISSISSIPPI TRANSPORTATION COMMISSION AND THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION FROM PARTICIPATION IN THE STATE TORT CLAIMS FUND; TO REQUIRE THE COMMISSION TO PROVIDE COVERAGE FOR LIABILITY OF THE COMMISSION AND DEPARTMENT; TO PROVIDE COVERAGE OF CLAIMS DURING THE TRANSITION PERIOD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-46-17, Mississippi Code of 1972, is amended as follows:
11-46-17. (1) There is hereby created in the State Treasury a special fund to be known as the "Tort Claims Fund."
All such monies as the Department of Finance and Administration shall receive and collect under the provisions of subsection (2) of this section and all such funds as the Legislature may appropriate for use by the board in administering the provisions of this chapter shall be deposited in such fund. All monies in the fund may be expended by the board for any and all purposes for which the board is authorized to expend funds under the provisions of this chapter. All interest earned from the investment of monies in the fund shall be credited to the fund. Monies remaining in such fund at the end of a fiscal year shall not lapse into the State General Fund.
(2) From and after July 1, 1993, each governmental entity other than political subdivisions shall participate in a comprehensive plan of self-insurance and/or one or more policies of liability insurance administered by the Department of Finance and Administration; except that from and after July 1, 2010, the Mississippi Transportation Commission and the Mississippi Department of Transportation shall be exempt from participation in the plan in accordance with the provisions of subsection (6) of this section. Such plan shall provide coverage to each of such governmental entities for every risk for which the board determines the respective governmental entities to be liable in the event of a claim or suit for injuries under the provisions of this chapter, including claims or suits for injuries from the use or operation of motor vehicles; provided, however, that the board may allow such plan to contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to governmental entities. In addition to the coverage authorized in the preceding sentence, the plan may provide coverage for liabilities outside the provisions of this chapter, including, but not limited to, liabilities arising from Sections 1983 through 1987 of Title 42 of the United States Code and liabilities from actions brought in foreign jurisdictions, and the board shall establish limits of coverage for such liabilities. Each governmental entity participating in the plan shall make payments to the board in such amounts, times and manner determined by the board as the board deems necessary to provide sufficient funds to be available for payment by the board of such costs as it incurs in providing coverage for the governmental entity. Each governmental entity of the state other than the political subdivisions thereof participating in the plan procured by the board shall be issued by the board a certificate of coverage whose form and content shall be determined by the board but which shall have the effect of certifying that in the opinion of the board each of such governmental entities is adequately insured.
Prior to July 1, 1993, the Board of Trustees of State Institutions of Higher Learning may provide such liability coverage for each university, department, trustee, employee, volunteer, facility and activity as the board of trustees, in its discretion, shall determine advisable. If liability coverage, either through insurance policies or self-insurance retention is in effect, immunity from suit shall be waived only to the limit of liability established by such insurance or self-insurance program. From and after July 1, 1993, such liability coverage established by the board of trustees must conform to the provisions of this section and must receive approval from the board. Should the board reject such plan, the board of trustees shall participate in the liability program for state agencies established by the board.
(3) All political subdivisions shall, from and after October 1, 1993, obtain such policy or policies of insurance, establish such self-insurance reserves, or provide a combination of such insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; except any political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against such political subdivision relative to limits of liability under the Tort Claims Act. Such policy or policies of insurance or such self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All such plans of insurance and/or reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan of insurance and/or reserves it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the board's approval of any plan of insurance and/or reserves, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance and/or reserves to be approved by the board.
(4) Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried.
(5) Any two (2) or more political subdivisions are hereby authorized to enter into agreement and to contract between and among themselves for the purpose of pooling their liabilities as a group under this chapter. Such pooling agreements and contracts may provide for the purchase of one or more policies of liability insurance and/or the establishment of self-insurance reserves and shall be subject to approval by the board in the manner provided in subsections (2) and (3) of this section.
(6) Before July 1, 2010, the Mississippi Transportation Commission and the Mississippi Department of Transportation shall participate in the Tort Claims Fund and the board shall have responsibility and authority under subsection (2) of this section for claims filed under the provisions of this chapter before that date.
From and after July 1, 2010, the Mississippi Transportation Commission shall provide a program for liability coverage for each commissioner and Department of Transportation officer, employee, volunteer, facility and activity as the commission, in its discretion, shall determine advisable, with exclusive powers and duties being granted to the Mississippi Transportation Commission as provided to the board in this chapter as may be applicable. In order to administer this program, the commission may obtain a policy or policies of insurance, establish self-insurance reserves, or provide a combination of insurance and reserves as necessary to cover all risks of claims and suits for which a governmental entity may be liable under this chapter; provided, however, that the policy or policies of insurance or self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to governmental entities.
The commission shall budget for this program based upon historical data from the actual claims, financial experience, administrative costs and available insurance industry data of the previous three (3) years. The commission shall maintain a written statement setting forth the financial limits of liability assumed by the commission and the department, those limits to be no less than the limits imposed under this chapter, and setting forth the scope of the liability assumed by the commission and the department, that scope to be no less than that imposed in this chapter. Nothing in this section shall enlarge or otherwise adversely affect the liability of the Mississippi Transportation Commission and Department of Transportation or any officer or
employee thereof and any immunity or other bar to a civil lawsuit under Mississippi or federal law, where applicable, shall remain in effect.
On or before October 1, 2010, the board shall calculate a reasonable reserve for unresolved claims filed against the Mississippi Transportation Commission and the Mississippi Department of Transportation before July 1, 2010. As of October 1, 2010, the board shall refund to the Department of Transportation any monies deposited or credits to the Tort Claims Fund by the Department of Transportation that have not been expended on behalf of the Mississippi Transportation Commission or the Mississippi Department of Transportation and any reserves or credits for unresolved claims filed before July 1, 2010. On or before each October 1 and thereafter, the board shall refund to the Department of Transportation any unexpended reserves or credits for claims resolved on behalf of the Mississippi Transportation Commission or the Mississippi Department of Transportation during the previous fiscal year. This shall continue until all claims filed against the Mississippi Transportation Commission and the Mississippi Department of Transportation before July 1, 2010, are resolved and all unexpended monies deposited in the Tort Claims Fund by the Mississippi Department of Transportation are refunded.
(7) The board shall have subrogation rights against a third party for amounts paid out of any plan of self-insurance administered by such board pursuant to this section in behalf of a governmental entity as a result of damages caused under circumstances creating a cause of action in favor of such governmental entity against a third party. The board shall deposit in the Tort Claims Fund all monies received in connection with the settlement or payment of any claim, including proceeds from the sale of salvage.
SECTION 2. This act shall take effect and be in force from and after its passage.
