2005 Idaho Code - 6-903 — LIABILITY OF GOVERNMENTAL ENTITIES -- DEFENSE OF EMPLOYEES

                                   TITLE  6
                         ACTIONS IN PARTICULAR CASES
                                  CHAPTER 9
                             TORT CLAIMS AGAINST
                            GOVERNMENTAL ENTITIES
    6-903.  LIABILITY OF GOVERNMENTAL ENTITIES -- DEFENSE OF EMPLOYEES. (a)
Except as otherwise provided in this act, every governmental entity is subject
to liability for money damages arising out of its negligent or otherwise
wrongful acts or omissions and those of its employees acting within the course
and scope of their employment or duties, whether arising out of a governmental
or proprietary function, where the governmental entity if a private person or
entity would be liable for money damages under the laws of the state of Idaho,
provided that the governmental entity is subject to liability only for the pro
rata share of the total damages awarded in favor of a claimant which is
attributable to the negligent or otherwise wrongful acts or omissions of the
governmental entity or its employees.
    (b)  (i) A governmental entity shall provide a defense to its employee,
including a defense and indemnification against any claims brought against the
employee in the employee's individual capacity when the claims are related to
the course and scope of employment, and be responsible for the payment of any
judgment on any claim or civil lawsuit against an employee for money damages
arising out of any act or omission within the course and scope of his
employment; provided that the governmental entity and its employee shall be
subject to liability only for the pro rata share of the total damages awarded
in favor of a claimant which is attributable to the act or omission of the
employee; (ii) provided further, that to the extent there is valid and
collectible, applicable insurance or any other right to defense or
indemnification legally available to and for the protection of an employee,
while operating or using an automobile, aircraft or other vehicle not owned or
leased by the governmental entity and while acting within the course and scope
of his/her employment or duties, the governmental entity's duty hereunder to
indemnify the employee and/or defend any such claim or lawsuit arising out of
the operation or use of such personal automobile, aircraft or vehicle, shall
be secondary to the obligation of the insurer or indemnitor of such
automobile, aircraft or vehicle, whose obligation shall be primary; and (iii)
provided further, this paragraph shall not be construed to alter or relieve
any such indemnitor or insurer of any legal obligation to such employee or to
any governmental entity vicariously liable on account of or legally
responsible for damages due to the allegedly wrongful error, omissions,
conduct, act or deed of such employee.
    (c)  The defense of its employee by the governmental entity shall be
undertaken whether the claim and civil lawsuit is brought in Idaho district
court under Idaho law or is brought in a United States court under federal
law. The governmental entity may refuse a defense or disavow and refuse to pay
any judgment for its employee if it is determined that the act or omission of
the employee was not within the course and scope of his employment or included
malice or criminal intent.
    (d)  A governmental entity shall not be entitled to contribution or
indemnification, or reimbursement for legal fees and expenses from its
employee unless a court shall find that the act or omission of the employee
was outside the course and scope of his employment or included malice or
criminal intent. Any action by a governmental entity against its employee and
any action by an employee against the governmental entity for contribution,
indemnification, or necessary legal fees and expenses shall be tried to the
court in the same civil lawsuit brought on the claim against the governmental
entity or its employee.
    (e)  For the purposes of this act and not otherwise, it shall be a
rebuttable presumption that any act or omission of an employee within the time
and at the place of his employment is within the course and scope of his
employment and without malice or criminal intent.
    (f)  Nothing in this act shall enlarge or otherwise adversely affect the
liability of an employee or a governmental entity. Any immunity or other bar
to a civil lawsuit under Idaho or federal law shall remain in effect. The fact
that a governmental entity may relieve an employee from all necessary legal
fees and expenses and any judgment arising from the  civil lawsuit shall not
under any circumstances be communicated to the trier of fact in the civil
lawsuit.
    (g)  When a claim asserted against an employee in the employee's
individual capacity is dismissed by the court, the dismissed party shall have
the right to a hearing pursuant to the provisions of section 12-123, Idaho
Code.