CHAPTER 431

FORMERLY

HOUSE BILL NO. 579

AN ACT TO AMEND TITLE 10, DELAWARE CODE, BY ADDING A NEW CHAPTER 40 THERETO PROVIDING FOR LIMITATIONS ON THE CIVIL LIABILITY OF THE STATE, ITS SUBDIVISIONS AND ITS PUBLIC OFFICERS AND EMPLOYEES, AND BY PROVIDING FOR THE INDEMNIFICATION OF PUBLIC OFFICERS AND EMPLOYEES IN CERTAIN INSTANCES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 10, Delaware Code, by adding a new Chapter 40 to read as follows:

"CHAPTER 40. TORT CLAIMS ACT §4001. Limitation on civil liability

(a) Except as otherwise provided by the Constitution or laws of the United States or of the State, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, or agency of the State, whether elected or appointed, and whether now or previously serving as such, in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:

(1) the act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege, or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority; and

(2) the act or omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and

(3) the act or omission complained of was done without gross or wanton negligence;

provided that the immunity of judges, the Attorney General and deputy attorneys general, and members of the General Assembly shall, as to all civil claims or causes of action founded upon an

act or omission arising out of the performance of an official duty, be absolute; provided further that in any civil action or proceeding against the State or a public officer, employee or member of the State, the plaintiff shall have the burden of proving the absence of one or more of the elements of immunity as set forth in this subsection.

§4002. Indemnification of public officers and employees

In addition to the right of representation provided for in §3925 of this Title, any public officer, employee or member who, but for the application of any provision of the Constitution or laws of the United States or the State to the contrary, would be entitled to immunity in accordance with Section 4001 of this Chapter, shall be indemnified by the State against any expenses (including attorneys fees and disbursements), judgments, fines and costs, actually and reasonably incurred by such public officer, employee or member in defending against the action, suit or proceeding giving rise thereto.

§4003. Political subdivisions; limitations on liability

Any political subdivision of the State, including the various school districts, and their officers and employees shall be entitled to the same privileges and immunities as provided in this Chapter for the State and its officers and employees; provided that the public officers and employees of any such political subdivision shall only be indemnified if the governing body of the subdivision shall expressly so provide, and then only to the extent that the subdivision shall appropriate all funds necessary therefor.

§4004. Establishing right to indemnification: procedure

The right to indemnification provided for in Section 4002 of this Chapter shall automatically obtain upon the final determination of any court or administrative tribunal of competent jurisdiction that no claim or cause of action existed, or but for the application of the provisions of the Constitutions or laws of either the United States or the State, that no such claim or cause of action would have existed or upon a verdict or ruling in favor of the public officer, employee or member. If a court or administrative tribunal shall determine that no right to indemnification exists because of the absence of one or more of the elements of immunity set forth in Section 4001 of this Chapter, said determination shall be final and binding at such time as any and all rights of appeal from the decision giving rise to such determination shall have been exhausted. If, for whatever reason, including a settlement agreed upon by the parties, the court or administrative tribunal having jurisdiction shall fail or refuse to make the determination required by this subsection, then the indemnification shall only be granted as to public officers, employees or members of the State upon the affirmative recommendation of the appropriate department head, or a majority of the members of the governing body of the board, commission or agency, whichever shall apply, and the concurrence of the Governor and the Attorney General or their designees. Any political subdivision of the State which shall hereafter provide indemnification as authorized by this Chapter, shall establish its own procedure for determining eligibility for its officer and employees in the absence of the determination of a court of competent jurisdiction.

§4005. Authorization to purchase liability insurance

The State or any of its departments, agencies, boards, commissions or political subdivisions are hereby authorized to obtain from funds appropriated for such purpose a policy or policies of insurance sufficient to provide coverage for its public officers, employees or members which is coextensive with the standards for indemnification as provided for in this Chapter. No public officer, employee or member shall be entitled to indemnification under this section for any act or omission, not otherwise protected herein, the provisions of any applicable policy of insurance to

the contrary notwithstanding."

Approved July 8, 1978.