MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division A
By: Senator(s) Jolly, Browning, Chassaniol, Collins, Doty, Fillingane, Hale, Harkins, Hopson, Jackson (11th), Kirby, Lee, Massey, McDaniel, Montgomery, Parks, Smith, Stone, Ward, Watson
AN ACT TO INCLUDE VOLUNTEER FIREFIGHTERS AMD VOLUNTEER FIRE DEPARTMENTS WITHIN THE SCOPE OF PROTECTION FROM CLAIMS UNDER THE TORT CLAIMS ACT; TO AMEND SECTION 11-46-1, MISSISSIPPI CODE OF 1972, TO REVISE DEFINITIONS; TO AMEND SECTION 11-46-17, MISSISSIPPI CODE OF 1972, TO MAKE TECHNICAL AND GRAMMATICAL CORRECTIONS; TO AMEND SECTION 95-9-1, MISSISSIPPI CODE OF 1972, TO MAKE A GRAMMATICAL CORRECTION; TO AMEND SECTION 45-2-1, MISSISSIPPI CODE OF 1972, TO CLARIFY THE ELIGIBILITY OF VOLUNTEER FIREFIGHTERS FOR BENEFITS UNDER THE DEATH BENEFITS TRUST FUND; TO AMEND SECTION 45-2-21, MISSISSIPPI CODE OF 1972, TO CONFORM THE WORDING FOR ELIGIBILITY FOR BENEFITS UNDER THE DISABILITY BENEFITS TRUST FUND; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-46-1, Mississippi Code of 1972, is amended as follows:
11-46-1. As used in this
chapter, the following terms shall have the meanings * * * ascribed unless the context otherwise
requires:
(a) "Claim" means any demand to recover damages from a governmental entity as compensation for injuries.
(b) "Claimant" means any person seeking compensation under the provisions of this chapter, whether by administrative remedy or through the courts.
(c) "Board" means the Mississippi Tort Claims Board.
(d) "Department" means the Department of Finance and Administration.
(e) "Director" means the executive director of the department who is also the executive director of the board.
(f)
"Employee" means any officer, employee or servant of the State of
Mississippi or a political subdivision of the state, including elected or
appointed officials and persons acting on behalf of the state or a political
subdivision in any official capacity, temporarily or permanently, in the
service of the state or a political subdivision whether with or without
compensation, including firefighters who are members of a volunteer fire
department that is a political subdivision. The term "employee"
shall not mean a person or other legal entity while acting in the capacity of
an independent contractor under contract to the state or a political
subdivision; * * * and
(i) For purposes of the limits of liability provided for in Section 11-46-15, the term "employee" shall include:
1.
Physicians under contract to provide health services with the State Board of
Health, the State Board of Mental Health or any county or municipal jail
facility while rendering services under * * * the contract * * *;
2. Any
physician, dentist or other health care practitioner employed by the University
of Mississippi Medical Center (UMMC) and its departmental practice plans who is
a faculty member and provides health care services only for patients at UMMC or
its affiliated practice sites * * *;
3. Any
physician, dentist or other health care practitioner employed by any university
under the control of the Board of Trustees of State Institutions of Higher
Learning who practices only on the campus of any university under the control
of the Board of Trustees of State Institutions of Higher Learning * * *;
4. Any
physician, dentist or other health care practitioner employed by the State
Veterans Affairs Board and who provides health care services for patients for
the State Veterans Affairs Board * * *; and
(ii) The
term "employee" * * *shall also * * * includes Mississippi Department
of Human Services licensed foster parents for the limited purposes of coverage
under the Tort Claims Act as provided in Section 11-46-8.
(g) "Governmental
entity" means * * * the state and political subdivisions * * *.
(h) "Injury" means death, injury to a person, damage to or loss of property or any other injury that a person may suffer that is actionable at law or in equity.
(i) "Political
subdivision" means any body politic or body corporate other than the state
responsible for governmental activities only in geographic areas smaller than
that of the state, including, but not limited to, any county,
municipality, school district, volunteer fire department that is a chartered
nonprofit corporation providing emergency services under contract with a county
or municipality community hospital as defined in Section 41-13-10, * * * airport authority,
or other instrumentality * * *thereof of the state, whether or not * * * the body or instrumentality * * * has the authority to levy taxes or to
sue or be sued in its own name.
(j) "State"
means the State of Mississippi and any office, department, agency, division,
bureau, commission, board, institution, hospital, college, university, airport
authority or other instrumentality thereof, whether or not * * * the body or instrumentality * * * has the authority to levy taxes or to
sue or be sued in its own name.
(k) "Law" means all species of law, including, but not limited to, any and all constitutions, statutes, case law, common law, customary law, court order, court rule, court decision, court opinion, court judgment or mandate, administrative rule or regulation, executive order, or principle or rule of equity.
SECTION 2. 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 * * * 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 in * * * the 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 * * * 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 * * * or one or more policies of
liability insurance or combination of the two, all to be administered by
the Department of Finance and Administration. * * * The 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; * * * 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. * * * The plan may also 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 * * * the
costs * * * 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.
* * * Before July 1, 1993, the Board
of Trustees of State Institutions of Higher Learning may provide * * * 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 * * * the
insurance or self-insurance program. From and after July 1, 1993, 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 * * * a 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 * * * 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 political subdivisions may be
liable under this chapter; * * * a political subdivision shall
not be required to obtain pollution liability insurance. However, this shall
not limit any cause of action against * * * a political subdivision relative to
limits of liability under the Tort Claims Act. * * * 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 political
subdivisions. All * * *
the plans of insurance * * * or reserves or combination of
insurance and reserves shall be submitted for approval to the board. The
board shall issue a certificate of coverage to each political subdivision whose
plan * * * 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 * * * its plan * * *, the political
subdivision shall act in accordance with the rules and regulations of the board
and obtain a satisfactory plan of insurance * * * or reserves or combination of
insurance and reserves to be approved by the board.
(4) Any governmental entity * * * 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 * * * excess liability insurance carried.
(5) Any two (2) or more
political subdivisions * * * may contract * * *
to pool their liabilities as a group under this chapter. * * * The pooling agreements and
contracts may provide for the purchase of one or more policies of liability
insurance * * *
or the establishment of self-insurance reserves or a combination of
insurance and 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 pursuant to this section * * * on behalf of a governmental entity that
is not a political subdivision 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 3. Section 95-9-1, Mississippi Code of 1972, is amended as follows:
95-9-1. (1) For the purposes of this section, unless the context otherwise requires:
(a) "Qualified volunteer" means any person who freely provides services, goods or the use of real or personal property or equipment, without any compensation or charge, to any volunteer agency in connection with a volunteer activity. For purposes of this chapter, reimbursement of actual expenses, including travel expenses, necessarily incurred in the discharge of a member's duties, insurance coverage and workers' compensation coverage of volunteers, shall not be considered monetary compensation.
(b) "Volunteer agency" means any department, institution, community volunteer organization or any nonprofit corporation designated 501(c)(3) by the United States Internal Revenue Service, except an agency established primarily for the recreational benefit of its stockholders or members. Volunteer agency shall also include any volunteer firefighter association which is eligible to be designated as a nonprofit corporation under 501(c)(3) by the United States Internal Revenue Service.
(c) "Volunteer
activity" means any activity within the scope of any project, program or
other activity regularly sponsored by a volunteer agency with the intent to
effect a charitable purpose * * * or other public benefit, including,
but not limited to, fire protection, rescue services, the enhancement of the
cultural, civic, religious, educational, scientific or economic resources of
the community or equine activity as provided in * * * Section 95-11-1 et seq.
(2) A qualified volunteer shall not be held vicariously liable for the negligence of another in connection with or as a consequence of his volunteer activities.
(3) A qualified volunteer who renders assistance to a participant in, or a recipient, consumer or user of the services or benefits of a volunteer activity shall not be liable for any civil damages for any personal injury or property damage caused to a person as a result of any acts or omissions committed in good faith except:
(a) Where the qualified volunteer engages in acts or omissions which are intentional, willful, wanton, reckless or grossly negligent; or
(b) Where the qualified volunteer negligently operates a motor vehicle, aircraft, boat or other powered mode of conveyance.
SECTION 4. Section 45-2-1, Mississippi Code of 1972, is amended as follows:
45-2-1. (1) Whenever used in this section, the term:
(a) "Covered
individual" means a law enforcement officer or firefighter, including
volunteer firefighters, as defined in this section when employed by an
employer as defined in this section; it does not include employees of
independent contractors. * * * "Covered individual" also includes volunteer fire fighters.
(b) "Employer" means a state board, commission, department, division, bureau or agency, or a county, municipality or other political subdivision of the state, which employs, appoints or otherwise engages the services of covered individuals.
(c) "Fire fighter" means an individual who is trained for the prevention and control of loss of life and property from fire or other emergencies, who is assigned to fire-fighting activity, and is required to respond to alarms and perform emergency actions at the location of a fire, hazardous materials or other emergency incident.
(d) "Law enforcement officer" means any lawfully sworn officer or employee of the state or any political subdivision of the state whose duties require the officer or employee to investigate, pursue, apprehend, arrest, transport or maintain custody of persons who are charged with, suspected of committing, or convicted of a crime, whether the officer is on regular duty on full-time status, an auxiliary or reserve officer, or is serving on a temporary or part-time status.
(2) (a) The Department of Public Safety shall make a payment, as provided in this section, in the amount of Sixty-five Thousand Dollars ($65,000.00) when a law enforcement officer, while engaged in the performance of the person's official duties, is accidentally or intentionally killed or receives accidental or intentional bodily injury that results in the loss of the covered individual's life, provided that the killing is not the result of suicide and that the bodily injury is not intentionally self-inflicted.
(b) The Department of Public Safety shall make a payment, as provided in this section, in the amount of Sixty-five Thousand Dollars ($65,000.00) when a fire fighter, while engaged in the performance of the person's official duties, is accidentally or intentionally killed or receives accidental or intentional bodily injury that results in loss of the covered individual's life, provided that the killing is not the result of suicide and that the bodily injury is not intentionally self-inflicted.
(c) The payment provided for in this subsection shall be made to the beneficiary who was designated in writing by the covered individual, signed by the covered individual and delivered to the employer during the covered individual's lifetime. If no such designation is made, then the payment shall be made to the surviving child or children and spouse in equal portions, and if there is no surviving child or spouse, then to the parent or parents. If a beneficiary is not designated and there is no surviving child, spouse or parent, then the payment shall be made to the covered individual's estate.
(d) The payment made in this subsection is in addition to any workers' compensation or pension benefits and is exempt from the claims and demands of creditors of the covered individual.
(3) (a) There is established in the State Treasury a special fund to be known as the Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund. The trust fund shall be funded by an initial appropriation of Two Hundred Thousand Dollars ($200,000.00), and shall be comprised of any additional funds made available by the Legislature or by donation, contribution, gift or any other source.
(b) The State Treasurer shall invest the monies of the trust fund in any of the investments authorized for the funds of the Public Employees' Retirement System under Section 25-11-121, and those investments shall be subject to the limitations prescribed by Section 25-11-121.
(c) Unexpended amounts remaining in the trust fund at the end of the state fiscal year shall not lapse into the State General Fund, and any income earned on amounts in the trust fund shall be deposited to the credit of the trust fund.
(4) The Department of Public Safety shall be responsible for the management of the trust fund and the disbursement of death benefits authorized under this section. The Department of Public Safety shall adopt rules and regulations necessary to implement and standardize the payment of death benefits under this section, to administer the trust fund created by this section and to carry out the purposes of this section.
SECTION 5. Section 45-2-21, Mississippi Code of 1972, is amended as follows:
45-2-21. (1) Whenever used in this section, the term:
(a) "Covered individual" means a law enforcement officer or firefighter, including volunteer firefighters, as defined in this section while actively engaged in protecting the lives and property of the citizens of this state when employed by an employer as defined in this section; it does not include employees of independent contractors.
(b) "Employer" means a state board, commission, department, division, bureau, or agency, or a county, municipality or other political subdivision of the state, which employs, appoints or otherwise engages the services of covered individuals.
(c) "Firefighter" means an individual who is trained for the prevention and control of loss of life and property from fire or other emergencies, who is assigned to fire-fighting activity, and is required to respond to alarms and perform emergency actions at the location of a fire, hazardous materials or other emergency incident.
(d) "Law enforcement officer" means any lawfully sworn officer or employee of the state or any political subdivision of the state whose duties require the officer or employee to investigate, pursue, apprehend, arrest, transport or maintain custody of persons who are charged with, suspected of committing, or convicted of a crime.
(2) (a) The Attorney General's office shall make a monthly disability benefit payment equal to thirty-four percent (34%) of the covered individual's regular base salary at the time of injury when a covered individual, while engaged in the performance of the individual's official duties, is accidentally or intentionally injured in the line of duty as a direct result of a single incident. The benefit shall be payable for the period of time the covered individual is physically unable to perform the duties of the covered individual's employment, not to exceed twelve (12) total payments for any one (1) injury. Chronic or repetitive injury is not covered. Benefits made available under this section shall be in addition to any workers' compensation benefits and shall be limited to the difference between the amount of workers' compensation benefits and the amount of the covered individual's regular base salary. Compensation under this section shall not be awarded where a penal violation committed by the covered individual contributed to the disability or the injury was intentionally self-inflicted.
(b) Payments made under this subsection are exempt from the claims and demands of creditors of the covered individual.
(3) (a) There is established in the State Treasury a special fund to be known as the Law Enforcement Officers and Fire Fighters Disability Benefits Trust Fund. The trust fund shall be funded by any funds made available by the Legislature or by donation, contribution, gift or any other source.
(b) The State Treasurer shall invest the monies of the trust fund in any of the investments authorized for the funds of the Public Employees' Retirement System under Section 25-11-121, and those investments shall be subject to the limitations prescribed by Section 25-11-121.
(c) Unexpended amounts remaining in the trust fund at the end of the state fiscal year shall not lapse into the State General Fund, and any income earned on amounts in the trust fund shall be deposited to the credit of the trust fund.
(4) The Attorney General's office shall be responsible for the management of the trust fund and the disbursement of disability benefits authorized under this section. The Attorney General shall adopt rules and regulations necessary to implement and standardize the payment of disability benefits under this section, to administer the trust fund created by this section and to carry out the purposes of this section. The Attorney General's office may expend up to ten percent (10%) of the monies in the trust fund for the administration and management of the trust fund and carrying out the purposes of this section.
SECTION 6. This act shall take effect and be in force from and after its passage; volunteer fire departments shall have until July 1, 2013, to obtain and have approved the insurance policies or self-insurance reserves or combination thereof required for political subdivisions under the Tort Claims Act.