31A-27a-114 - Immunity and indemnification.
31A-27a-114. Immunity and indemnification.
(1) For purposes of this section:
(a) "Receiver's assistant" includes:
(i) a present or former special deputy or assistant special deputy engaged by contract orotherwise;
(ii) a person whom the receiver, a special deputy, or an assistant special deputy employsto assist in a delinquency proceeding under this chapter; and
(iii) a state employee acting with respect to a delinquency proceeding under this chapter.
(b) "Receiver's contractor" includes a person with whom the receiver, a special deputy, oran assistant special deputy contracts to assist in a delinquency proceeding under this chapter suchas:
(i) an attorney;
(ii) an accountant;
(iii) an auditor;
(iv) an actuary;
(v) an investment banker;
(vi) a financial advisor;
(vii) any other professional or firm who is retained or contracted with by the receiver asan independent contractor; and
(viii) an employee of a person described in this Subsection (1)(b).
(2) For the purposes of this section, the following persons are entitled to immunity andindemnification, or only immunity, as applicable:
(a) a present or former receiver responsible for the conduct of a delinquency proceedingunder this chapter;
(b) a present or former receiver's assistant; and
(c) a present or former receiver's contractor.
(3) The receiver, a receiver's assistant, and a receiver's contractor have immunity underthis chapter, as follows:
(a) the receiver, a receiver's assistant, and a receiver's contractor have official immunityand are immune from suit and liability, both personally and in their official capacities, for anyclaim for damage to or loss of property, personal injury, or other civil liability caused by orresulting from an alleged act, error, or omission of the receiver, a receiver's assistant, or areceiver's contractor arising out of or by reason of the receiver's, receiver's assistant's, orreceiver's contractor's duties or employment;
(b) the receiver, a receiver's assistant, and a receiver's contractor have absolute judicialimmunity and are immune from suit and liability, both personally and in their official capacities,for any claim for damage to or loss of property, personal injury, or other civil liability caused byor resulting from any alleged act, error, or omission of the receiver, a receiver's assistant, or areceiver's contractor arising out of or by reason of any matter that is subject to review by thereceivership court after notice and opportunity to be heard, if the alleged act, error, or omission isnot disapproved or disallowed by the receivership court; and
(c) this chapter may not be construed to provide official immunity, to provide judicialimmunity, or to otherwise hold the receiver, a receiver's assistant, or a receiver's contractorimmune from suit and liability for any damage, loss, injury, or liability caused by the intentionalor willful and wanton misconduct of the receiver, a receiver's assistant, or a receiver's contractor.
(4) The receiver or a receiver's assistant is entitled to indemnification under this chapter,as follows:
(a) the receiver and a receiver's assistant shall be indemnified from the assets of theinsurer:
(i) if any legal action is commenced against the receiver or a receiver's assistant:
(A) whether against the receiver or receiver's assistant personally or in the officialcapacity; and
(B) alleging property damage, property loss, personal injury, or other civil liabilitycaused by or resulting from any alleged act, error, or omission of the receiver or a receiver'sassistant arising out of or by reason of the receiver's or receiver's assistant's duties oremployment;
(ii) for all expenses, attorney fees, judgments, settlements, decrees, or amounts due andowing or paid in satisfaction of or incurred in the defense of the legal action; and
(iii) unless it is determined upon a final adjudication on the merits that the alleged act,error, or omission of the receiver or receiver's assistant giving rise to the claim:
(A) does not arise out of or by reason of the receiver's or receiver's assistant's duties oremployment; or
(B) is caused by intentional or willful and wanton misconduct;
(b) attorney fees and related expenses incurred in defending a legal action for whichimmunity or indemnity is available under this section shall be paid from the assets of the insureras they are incurred, in advance of the final disposition of the action upon receipt of an agreementby or on behalf of the receiver or receiver's assistant to repay the attorney fees and expenses if itis ultimately determined upon a final adjudication on the merits that the receiver or receiver'sassistant is not entitled to immunity or indemnity under this section;
(c) the following paid pursuant to this section are an administrative expense of theinsurer, an indemnification for:
(i) an expense payment;
(ii) a judgment;
(iii) a settlement;
(iv) a decree;
(v) attorney fees;
(vi) a surety bond premium; or
(vii) other amounts paid or to be paid from the insurer's assets pursuant to this section;
(d) in the event of actual or threatened litigation against a receiver or a receiver's assistantfor which immunity or indemnity may be available under this section, a reasonable amount offunds which in the judgment of the receiver may be needed to provide immunity or indemnityshall be segregated and reserved from the assets of the insurer:
(i) as security for the payment of indemnity; and
(ii) until:
(A) all applicable statutes of limitations run;
(B) all actual or threatened actions against the receiver or a receiver's assistant arecompletely and finally resolved; and
(C) all obligations under this section are satisfied;
(e) in lieu of segregation and reserving of funds, the receiver may, in the receiver'sdiscretion, obtain a surety bond or make other arrangements that will enable the receiver to fully
secure the payment of all obligations under this section;
(f) if a legal action against a receiver's assistant for which indemnity may be availableunder this section is settled before final adjudication on the merits, the receiver shall pay thesettlement amount on behalf of the receiver's assistant, or indemnify the receiver's assistant forthe settlement amount, unless the receiver determines that the claim:
(i) does not arise out of or by reason of the receiver's assistant's duties or employment; or
(ii) is caused by the intentional or willful and wanton misconduct of the receiver'sassistant; and
(g) in a legal action in which a claim is asserted against the receiver:
(i) that portion of any settlement relating to the alleged act, error, or omission of thereceiver is subject to the approval of the receivership court; and
(ii) the receivership court may not approve that portion of the settlement if thereceivership court determines that the claim:
(A) does not arise out of or by reason of the receiver's duties or employment; or
(B) is caused by the intentional or willful and wanton misconduct of the receiver.
(5) Nothing contained or implied in this section shall operate, or be construed or appliedto deprive the receiver, a receiver's assistant, or a receiver's contractor of any immunity,indemnity, benefits of law, rights, or any defense otherwise available.
(6) The immunity and indemnification provided to a receiver's assistant and theimmunity provided to a receiver's contractor under this section does not apply to an action by thereceiver against the receiver's assistant or receiver's contractor.
(7) (a) Subsection (3) applies to any suit based in whole or in part on an alleged act,error, or omission that takes place on or after April 30, 2007.
(b) A legal action may not lie against the receiver or a receiver's assistant based in wholeor in part on an alleged act, error, or omission that takes place before April 30, 2007, unless suitis filed and valid service of process is obtained on or after April 30, 2007, but on or before April30, 2008.
(8) Subsection (4) applies to a suit that is pending on or filed after April 30, 2007,without regard to when the alleged act, error, or omission takes place.
Enacted by Chapter 309, 2007 General Session