(1)  Except as provided in Subsections (2) and (3), a governmental entity shall defend any action brought against its employee arising from an act or omission occurring:

Terms Used In Utah Code 63G-7-902

  • Claim: means any asserted demand for or cause of action for money or damages, whether arising under the common law, under state constitutional provisions, or under state statutes, against a governmental entity or against an employee in the employee's personal capacity. See Utah Code 63G-7-102
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Employee: includes :
(i) a governmental entity's officers, employees, servants, trustees, or commissioners;
(ii) a member of a governing body;
(iii) a member of a government entity board;
(iv) a member of a government entity commission;
(v) members of an advisory body, officers, and employees of a Children's Justice Center created in accordance with Section 67-5b-102;
(vi) a student holding a license issued by the State Board of Education;
(vii) an educational aide;
(viii) a student engaged in an internship under Section 53B-16-402 or 53G-7-902;
(ix) a volunteer, as defined in Section 67-20-2; and
(x) a tutor. See Utah Code 63G-7-102
  • Governmental entity: means :
    (a) the state and its political subdivisions; and
    (b) a law enforcement agency, as defined in Section 53-1-102, that employs one or more law enforcement officers, as defined in Section 53-13-103. See Utah Code 63G-7-102
  • Injury: means death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to the person or estate, that would be actionable if inflicted by a private person or the private person's agent. See Utah Code 63G-7-102
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • Service of process: The service of writs or summonses to the appropriate party.
  • Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
    • (a)  during the performance of the employee’s duties;

    (b)  within the scope of the employee’s employment; or

    (c)  under color of authority.

    • (2) 

    (a)  Before a governmental entity may defend its employee against a claim, the employee shall make a written request to the governmental entity to defend the employee:

    (i)  within 10 days after service of process upon the employee; or

    (ii)  within a longer period that would not prejudice the governmental entity in maintaining a defense on the employee’s behalf; or

    (iii)  within a period that would not conflict with notice requirements imposed on the entity in connection with insurance carried by the entity relating to the risk involved.

    (b)  If the employee fails to make a request, or fails to reasonably cooperate in the defense, including the making of an offer of judgment under Rule 68, Utah Rules of Civil Procedure, Offers of Judgment, the governmental entity need not defend or continue to defend the employee, nor pay any judgment, compromise, or settlement against the employee in respect to the claim.

    (3)  The governmental entity may decline to defend, or, subject to any court rule or order, decline to continue to defend, an action against an employee if it determines:

    (a)  that the act or omission in question did not occur:

    (i)  during the performance of the employee’s duties;

    (ii)  within the scope of the employee’s employment; or

    (iii)  under color of authority; or

    (b)  that the injury or damage on which the claim was based resulted from conditions set forth in Subsection 63G-7-202(3)(c).

    (4) 

    (a)  Within 10 days of receiving a written request to defend an employee, the governmental entity shall inform the employee whether or not it shall provide a defense, and, if it refuses to provide a defense, the basis for its refusal.

    (b)  A refusal by the entity to provide a defense is not admissible for any purpose in the action in which the employee is a defendant.

    (5)  Except as provided in Subsection (6), if a governmental entity conducts the defense of an employee, the governmental entity shall pay any judgment based upon the claim.

    (6)  A governmental entity may conduct the defense of an employee under a reservation of rights under which the governmental entity reserves the right not to pay a judgment if any of the conditions set forth in Subsection (3) are established.

    (7) 

    (a)  Nothing in this section or Section 63G-7-903 affects the obligation of a governmental entity to provide insurance coverage according to the requirements of Subsection 41-12a-301(3) and Section 63G-7-802.

    (b)  When a governmental entity declines to defend, or declines to continue to defend, an action against its employee under any of the conditions set forth in Subsection (3), it shall still provide coverage up to the amount specified in Section 31A-22-304.

    Renumbered and Amended by Chapter 382, 2008 General Session

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