Since Tebo breached her contract the Town does not have to protect her but nevertheless, her intentional acts would be excluded

The Town shall to the extent required by law, defend, save harmless and indemnify the Town Manager against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise arising out of alleged act or omission occurring in the performance of the Manager’s duties as Town Manager

IN STACY’S CASE, THERE ARE EXCLUSIONS WHICH APPLY AND HER CONTRACT DID NOT STATE THAT THE TOWN DOES NOT HAVE THE RIGHT TO SUE HER PERSONALLY IN A CIVIL COURT OF LAW:

The member agrees to maintain a reasonable loss prevention program in order to provide the maximum in safety and lawful practices as such may relate to potential liability assumed by the trust.

 

(Just Check out the exclusions in Red.  Nevertheless that is why the Town needs to sue Tebo.  Her contract does not apply because of her breach of contract) 

Subrogation:  The member agrees in the event of payment of any loss by the Trust on behalf of the member, the Trust shall be subrogated to the extent of such payment to all the rights of the members. (usual)

  1. For any occurrence resulting in a claim or suit for damages under the Agreement, the Trust in its sole discretion may investigate, settle, coordinate the defense of claims or counts whether suits which may not be expressly covered by this Agreement but which provide strategic benefits through coordinated litigation and/or use any other reasonable means permitted by applicable rules of state law and attorney professional conduct without the prior consent or approval of the member.
  2. The trust shall remain in control of the defense for any occurrence resulting in a claim or suit for damages for which the Trust is obligated to provide a defense or elects to provide a defense to the members, whether covered or not covered by this agreement, notwithstanding any of the following.
  3. There is more than one defendant against whom a claim or suit is brought
  4. There is any real or perceived conflict between or among the trust, any member of any defendant(s) involved in any claim or suit.
  5. The Trust has reserved its right to deny or limit its coverage in any claim or suit.
  6. The Trust or the member initiates any claim or suit against any other Trust member.

In the event any court of competent jurisdiction orders the Trust to provide attorney representation beyond the attorneys the Trust selects and retains, the members shall be entitled to the fees and charges for such attorney representation, only to the extent of usual and customary legal fees and charges paid by the Trust for reasonably similar representation.

 

The Member agrees the coverage of the Trust does not apply to punitive or exemplary damages.

45 day notice of cancellation may be provided at any time if the Trust cancels

The members may, in its discretion and solely at its own expense, retain counsel other than the attorney(s) provided by the Trust to represent the member against any claim, suit, allegations or demands).  The trust has no obligation to cover the cost of such retained counsel or related expense.  The Trust however will remain in control as per the agreement.

If the limit of liability is exhausted and the Trust or its agents, has not notified the member of such exhaustion at least 30 days prior, then the Trust shall continue providing the defense previously undertaken for a reasonable time but not to exceed 30 days following the exhaustion…during which time the member takes control and the member shall reimburse the trust for any related expenses incurred during the transfer.    (DEFENSE APPEARS TO BE INCLUDED IN THE LIMIT OF LIABILITY)

2 of 16 Defense Settlement, Paragraph 2 – The Trust’s duty to defend ends when the applicable Limits of Liability have been exhausted.

 

The trust makes or arranges for the payment of claims, claim expenses, medical expenses and all other matters required or necessary insofar as they affect the member’s liability under federal or Florida law.

The member and the Trust agree the Trust will maintain an excess coverage program and reserve evaluation to protect the financial stability of the Trust in an amount and manner determined by a qualified and independent actuary.   The Trust reserves the right to execute necessary contracts, reports, waivers, agreements excess insurance contracts, service contracts and other documents reasonably necessary to accomplish the purpose and fulfill the responsibilities of the trust.  (THE TRUST RETAINS EXCESS LIABILITY COVERAGE AND RESERVES – HOWEVER THE MEMBER MUST PROVIDE THEIR OWN EXCESS LIABILITY POLICY)

Members duties after loss: Refrain from any intentional efforts (whether by statements, actions or agreements) that (1) harm, undermine, injure or conflict with the known legal strategy put forth by the trust (2) that are against the members self-interest or the interest of the Trust (3) that are contrary to the members pecuniary or proprietary interest or that of the Trust or (4) that lend to subject the Member or the Trust to liability or expand existing liability.

The Trust will pay all sums which a member becomes legally obligated to pay as damages because of

Bodily Injury      Property Damage            Personal Injury                 or Advertising Injury

$300,000 limit applies/aggregate per fund year – defense is included within the limit and not outside the limit.

Sublimits (extensions of coverage):

Herbicide/Pesticide Coverage  part of the $ 300,000 limit as an aggregate per fund year

Law Enforcement Liability Endorsement – COVERAGE IS PROVIDED FOR LOSSES, INCLUDING PERSONAL INJURY, ARISING OUT OF THE COURSE AND SCOPE OF LAW ENFORCEMENT AND INCLUDES BUT IS NOT LIMITED TO FALSE ARREST, DETENTION, MALICIOUS PROSECUTION, EXCESSIVE FORCE AND ASSAULT ANDD BATTERY  part of the $ 300,000 limit as an aggregate per fund year

Extra Contractual Legal Expense Coverage Endorsement – Administrative Proceedings:

Reimburse designated member 50% of the Legal Fees if paid an attorney up to a maximum of $25,000 per coverage year, when such fees are incurred by any of the designated members Public Officers and paid by the designated member in regard to a Covered Action that alleged wrongdoing of the Public Officials  (if acting lawfully in his or her official capacity; BUT excludes fines or penalties; legal fees of the public officer breached a public trust or committed the violations alleged in the covered action)

 

 

Limits of Liability – regardless of the number of (1) members under the agreement  (2) persons or organizations who sustain injury or damage, or (3) claims made or suits brought on account of BI, PD, or PI, the liability of the Trust is limited as follows:

Total Limit applicable to “each person” under all coverage and endorsements for all damages, including but not limited to damage awards for derivative claims, taxable costs, claimant attorney fees and prejudgment or post-judgment interest, sustained by one person or organization, as the result of one occurrence shall NOT EXCEED THE LIMIT OF LIABILITY STATED   ($300,000) in the Declarations and endorsements thereto.

Total Limit applicable to “each occurrence” under all coverage and endorsements for all damages, including but not limited to damage awards for derivative claims, taxable costs, claimant attorney fees and prejudgment or post-judgment interest, sustained by one person or organization, as the result of one occurrence shall NOT EXCEED THE LIMIT OF LIABILITY STATED in the Declarations and endorsements thereto.

Occurrence defined – all damages arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.   An event or accident including continuous or repeated exposure to conditions which result in Bodily Injury, Property Damage, Personal Injury or Advertising Injury and not arising from any form of intentional misconduct.   Note the limit of liability is not separate for each coverage part but the limit applies to all due to the ‘OR”.

 

The trust will defend even if found groundless, false or fraudulent; however the Trust has NO DUTY TO DEFEND a member in any action which on its face alleges facts excluded or not covered by the agreement.

 

If the trust gives written notice of a recommended settlement, the Member has up to 30 days to respond.  If the member does not agree, the Trust’s sole coverage obligations to the member shall then not exceed the LESSOR of  (a) The sum for which the claim or suit could have been settled for  (b) the costs and expenses incurred by the Trust , in relation to the claim or suit through the date on which the member was required to provide its affirmative acceptance of the recommendation for settlement, or (c) If less than the sum of (a) and (b) above the unused portion of the stated limit of liability contained within the declarations, less any self-insured retention or deductible amounts owed by the member.

If the trust gives written notice of a recommended settlement, the Member has up to 30 days to respond.  If the member does not agree, the Trust’s sole coverage obligations to the member shall then not exceed the LESSOR of  (a) The sum for which the claim or suit could have been settled for  (b) the costs and expenses incurred by the Trust , in relation to the claim or suit through the date on which the member was required to provide its affirmative acceptance of the recommendation for settlement, or (c) If less than the sum of (a) and (b) above the unused portion of the stated limit of liability contained within the declarations, less any self-insured retention or deductible amounts owed by the member.

 

 

Personal injury – means injury sustained by any person or organization arising out of one or more of the following offenses committed during the term of the Agreement BUT DOES NOT APPLY TO LAW ENFORCEMENT OPERATIONS:   (1) False arrest, detention, imprisonment (2) wrongful entry or inviction…(3) publication or utterance of (a) liable or slander or other defamatory or disparaging material  (4) in violation of an individual’s right of privacy…except publications or utterances in the course related to broadcasting, publishing or telecasting activities conducted on behalf of the member

Exclusions – auto exclusion except parking an auto on the premises; racing speed or demolition exclusion; mobile equipment used in racing, demolition, etc the operation of a trailer used with mobile equipment; amusement devices; water theme parks, watercraft over 35 feet ;law enforcement watercraft over 52 feet; passengers of watercraft, barge lighters,etc; aircraft exclusion except the exclusion doesn’t apply to parked aircraft on a premises; contaminants exclusion; lead exclusion; surface or subsurface degradation and deterioration; war exclusion, other insurance exclusion SS, WC, employers liability, unemployment or disability, contractual liability except incidental contracts; Property damage to property of members; property damage to premises alienated; loss of use of tangible property; products exclusion; completed operations exclusion; any act, error or omission by a member committed while acting outside the scope of his employment; unentitled remuneration; willful violation of any federal, state, or local law, ordinance or regulation committed by or with the knowledge or consent of any member or violation of public trust.

Also excluded operation of the principles of eminent domain, condemnation proceedings, inverse condemnation or takings law EXCEPT inverse condemnation or claims arising from Ch. 95-181 Bert Harris Act Laws of FL.; rendering or failure to render professional services; failure to supply utilities or services of a designated member; failure to supply quality of power, steam, pressure or fuel; violations of ERISA;; inadequacies of water flow, dam, dyke ditches, gates, sewers, water sheds, channels, culverts or drains;  fines, punitive or exemplary damages or any non-compensatory damages or penalties imposed pursuant to any federal or state anti-trust, civil rights, anti-discrimination or racketeer influence and control organization (RICCO) laws; damages because of special acts of the legislature; nuclear energy liability exclusion; to personal injury  publications or utterances claims prior to coverage date; errors and omissions; to any claim, demand or action seeking injunctive, declaratory, writ of mandamus or any other non-monetary relief against a designated member or any of its agents; liquor liability exclusion EXCE[T serving alcoholic beverages without charge at public functions; Sexual action exclusion except for Bodily Injury or Personal Injury coverage;

The Broad Form Property Damage Endorsement Provides:

  • Property Damage to property owned or occupied or leased or rented to a member.
  • Care custody and control of property damaged by a member
  • Damage to property for which work has been performed by the employees of the designated +equipment furnished by the member; and property damage loaned to a member who has physical control.

Further Exclusions – Asbestos exclusion; employee benefit errors and omissions; liability arising out of Federal Fair Labor Standards Act, Chapter 447, Florida Statutes; Driver Privacy Protection Act of 1994, National Labor Relations Act; Worker Adjustment and Retraining Notification Act; OSHA.; to any claim for attorneys’ fees or costs for any action not covered by this Agreement; advertising injury out of failure to perform except to the unauthorized appropriation of ideas upon alleged breach of implied contract is covered; infringement of trademark; incorrect description or mistake; to any member in the business of advertising et al; to any injury arising out of any act committed by the member with actual malice; breakdown of computers exclusions; testing exclusion – done by member; Microorganisms, mold, mildew etc.;   Terrorism clause;

 

 

SPECIFIC EXCESS ENDORSEMENT- GENERAL LIABILITY

Does not modify the provisions of the Coverage Agreement.  It does extend the monetary limits of liability as stated in the limits of Liability in the declarations.

$ 300,000            COMBINED SINGLE LIMIT PER OCCURRENCE SOLELY FOR ANY LIABILITY RESULTING FROM ENTRY OF A CLAIM BILL PURSUANT TO SECTON 768.28(5) Florida Statutes or liability imposed pursuant to Federal Law or to any liability resulting from actions taken outside of the State of Florida where it is determined by a court of competent jurisdiction that the liability limitations contained in Section 768.26(5), Florida Statutes are inapplicable, if such liability is covered by the Agreements.

The limits provided herein are inclusive of the$200,000 each person and $300,000 each occurrence liability limitations contained in Section 768.28 (5) Florida Statutes, but in no way exceed

$300,000 (combined single limit per occurrence)       

The damages to acts imposed by the legislature exclusion now includes claims bills passed by the legislature pursuant to Section 768.28(5) Florida Statutes, against a member for damages covered under the terms of the agreement.    

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $200,000 or $300,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974.

                   

Leave a Reply