MISSISSIPPI LEGISLATURE
2002 Regular Session
To: Appropriations
By: Representative Capps
AN ACT TO AMEND SECTIONS 11-46-17 AND 27-104-31, MISSISSIPPI CODE OF 1972, TO CHANGE THE NAME OF THE TORT CLAIMS FUND TO THE TORT CLAIMS AND WORKERS' COMPENSATION FUND; TO PROVIDE THAT ALL MONIES THAT THE DEPARTMENT OF FINANCE AND ADMINISTRATION RECEIVES FROM STATE AGENCIES FOR THE WORKERS' COMPENSATION SELF-INSURANCE PROGRAM SHALL BE DEPOSITED INTO THE FUND; TO PROVIDE THAT THE MONIES IN THE FUND MAY BE EXPENDED BY THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO PAY CLAIMS UNDER THE WORKERS' COMPENSATION SELF-INSURANCE PROGRAM, IN ADDITION TO BEING USED TO PAY TORT CLAIMS; TO DIRECT THE STATE FISCAL OFFICER TO TRANSFER ALL FUNDS IN THE WORKERS' COMPENSATION SELF-INSURANCE FUND ON THE EFFECTIVE DATE OF THIS ACT INTO THE TORT CLAIMS AND WORKERS' COMPENSATION FUND; TO AMEND SECTION 11-46-19, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; 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) (a) There is * * * created in the State Treasury a special fund to be known as the "Tort Claims and Workers' Compensation Fund."
(b) All * * * monies that the Department of Finance and Administration * * * receives and collects under the provisions of subsection (2) of this section and all * * * funds that the Legislature * * * appropriates for use by the board in administering the provisions of this chapter shall be deposited into the fund. In addition, all monies that the Department of Finance and Administration receives and collects from state agencies for the Workers' Compensation Self-Insurance Program established under Section 27-104-31 shall be deposited into the fund.
(c) The 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. In addition, the monies in the fund may be expended by the Department of Finance and Administration to pay claims under the Workers' Compensation Self-Insurance Program established under Section 27-104-31.
(d) All interest earned from the investment of monies in the fund shall be credited to the fund. Monies remaining in the 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. The plan shall provide coverage to each of those governmental entities for every risk for which the board determines the respective governmental entities to be liable if there is 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; * * * however, * * * the board may allow the 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 those 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 those governmental entities is adequately insured.
Before 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, * * * determines 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 that insurance or self-insurance program. From and after July 1, 1993, the liability coverage established by the board of trustees must conform to the provisions of this section and must receive approval from the board. If the board rejects the 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 the political subdivision relative to limits of liability under the Tort Claims Act. The policy or policies of insurance or the 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 the excess insurance carried; * * * however, * * * the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of the excess liability insurance carried.
(5) Any two (2) or more political subdivisions may enter into agreement and to contract between and among themselves for the purpose of pooling their liabilities as a group under this chapter. Those 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) The board shall have subrogation rights against a third party for amounts paid out of any plan of self-insurance administered by the board under this section in behalf of a governmental entity as a result of damages caused under circumstances creating a cause of action in favor of the governmental entity against a third party. The board shall deposit in the Tort Claims and Workers' Compensation Fund all monies received in connection with the settlement or payment of any claim, including proceeds from the sale of salvage.
SECTION 2. Section 27-104-31, Mississippi Code of 1972, is amended as follows:
27-104-31. (1) The State Fiscal Officer shall have the following powers and duties, acting through the Insurance Division:
(a) To implement and administer a comprehensive risk management program for all state agencies, including but not limited to, the areas of liability insurance and workers' compensation insurance;
(b) To coordinate and administer the Employment Compensation Revolving Fund for state agencies as directed in Section 71-5-359(2)(c);
(c) To coordinate and administer the liability plans authorized in Section 11-46-17;
(d) To coordinate and administer the workers' compensation plan for state agencies as a self-insured program and to determine the feasibility of other self-insured programs for state agencies;
(e) To require of state agencies premium payments or contributions to self-insurance funds or both necessary to meet the obligations created by the comprehensive risk management program. The self-insurance funds created shall be maintained as separate special funds in the State Treasury or in authorized bank accounts. * * * All those funds shall be exempt from the appropriation process. All interest earned from the investment of monies in the funds shall be credited to the appropriate special fund. Monies remaining in those special funds at the end of the fiscal year shall not lapse into the State General Fund. All funds collected from state agencies as premium payments or contributions for the Workers' Compensation Self-Insurance Program shall be deposited into the Tort Claims and Workers' Compensation Fund created under Section 11-46-17. The State Fiscal Officer shall transfer all funds in the Workers' Compensation Self-Insurance Fund on the effective date of House Bill Number ______, 2002 Regular Session, into the Tort Claims and Workers' Compensation Fund. Such funds as required from the Tort Claims and Workers' Compensation Fund shall be used by the department to pay claims under the Workers' Compensation Self-Insurance Program;
(f) To promulgate and adopt rules and regulations necessary to effect the provisions of a comprehensive risk management program; * * *
(g) To pay such administrative costs necessary to insure the successful operation of each program administered by the insurance division. Those administrative costs shall include the operating expenses of the division. Each program shall be assessed their proportionate share of those operating expenses; and
(h) To provide administrative support to the board as defined in Section 25-15-3.
(2) The State Fiscal Officer shall not have the power or authority to request that bonds be issued or any funds borrowed in order to implement a comprehensive risk management program or plan of self-insurance for the state, or any of its political subdivisions, or to make contributions under Section 11-46-17(2) to the Tort Claims and Workers' Compensation Fund established under Section 11-46-17.
SECTION 3. Section 11-46-19, Mississippi Code of 1972, is amended as follows:
11-46-19. (1) The board shall have the following powers:
(a) To provide, together with the Department of Finance and Administration, oversight over the Tort Claims and Workers' Compensation Fund;
(b) To approve any award made from the Tort Claims and Workers' Compensation Fund for a claim brought under this chapter;
(c) To pay, together with the Department of Finance and Administration, all necessary expenses attributable to the operation of the Tort Claims and Workers' Compensation Fund from the fund;
(d) To assign litigated claims against governmental entities other than political subdivisions to competent attorneys unless the governmental entity has a staff attorney who is competent to represent the governmental entity and is approved by the board; the board shall give primary consideration to attorneys practicing in the jurisdiction where the claim arose in assigning cases; attorneys hired to represent a governmental entity other than a political subdivision shall be paid according to the department fee schedule;
(e) To approve all claimants' attorney fees in claims against the state;
(f) To employ on a full-time basis a staff attorney who shall possess the minimum qualifications required to be a member of the Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of this chapter; the employees in the positions approved by the board shall be hired by the director, shall be employees of the department, and shall be compensated from the Tort Claims and Workers' Compensation Fund;
(g) To contract with one or more reputable insurance consulting firms as may be necessary;
(h) To purchase any policies of liability insurance and to administer any plan of self-insurance or policies of liability insurance required for the protection of the state against claims and suits brought under this chapter;
(i) To expend money from the Tort Claims and Workers' Compensation Fund for the purchase of any policies of liability insurance and the payment of any award or settlement of a claim against the state under the provisions of this chapter or of a claim against any school district, junior college or community college district, or state agency, arising from the operation of school buses or other vehicles, under the provisions of Section 37-41-42;
(j) To cancel, modify or replace any policy or policies of liability insurance procured by the board;
(k) To issue certificates of coverage to governmental entities, including any political subdivision participating in any plan of liability protection approved by the board;
(l) To review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions if the plan is intended to serve as security for risks of claims and suits against them for which immunity has been waived under this chapter;
(m) To administer disposition of claims brought under this chapter against the Tort Claims and Workers' Compensation Fund;
(n) To withhold issuance of any warrants payable from funds of a participating state entity if the entity fails to make required contributions to the Tort Claims and Workers' Compensation Fund in the time and manner prescribed by the board;
(o) To develop a comprehensive statewide list of attorneys who are qualified to represent the state and any employee thereof named as a defendant in a claim brought under this chapter against the state or any such employee;
(p) To develop a schedule of fees for paying attorneys defending claims against the state or an employee thereof;
(q) To adopt and promulgate such reasonable rules and regulations and to do and perform all such acts as are necessary to carry out its powers and duties under this chapter;
(r) To establish and assess premiums to be paid by governmental entities required by this chapter to participate in the Tort Claims and Workers' Compensation Fund;
(s) To contract with a third-party administrator to process claims against the state under this chapter;
(t) To annually submit its budget request to the Legislature as a state agency; and
(u) To dispose of salvage obtained in settlement or payment of any claim at fair market value by such means and upon such terms as the board may think best.
(2) Policies of liability insurance purchased for the protection of governmental entities against claims and suits brought under this chapter shall be purchased according to the competitive bidding procedures set forth in Section 31-7-13.
(3) The department shall have the following powers and duties:
(a) To annually report to the Legislature concerning each comprehensive plan of liability protection established under Section 11-46-17(2). The report shall include a comprehensive analysis of the cost of the plan, a breakdown of the cost to participating state entities, and such other information as the department * * * deems necessary; and
(b) To provide the board with any staff and meeting facilities as may be necessary to carry out the duties of the board as provided in this chapter.
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SECTION 4. This act shall take effect and be in force from and after its passage.