Employee Liability Coverage

Employee Protections Against Personal Liability

DEFINITION OF EMPLOYEE

Sovereign immunity prohibits monetary claims against individual Tennessee State University employees.  The term employee, for purposes of liability coverage, means any person who is employed in the service of the State of Tennessee and whose compensation is paid by the state through its payroll system or any person who is employed by the state and whose compensation is paid in whole or in part from federal funds, but does not include any person employed on a contractual or percentage basis, including most volunteers.  

STATE LAW CLAIMS

Tennessee law (Tenn. Code Ann. 9-8-307(h)) provides TSU employees with immunity from liability for acts or omissions that occur while they are acting within the scope of their employment, unless an act or omission is willful, malicious, criminal, or involves personal gain. This immunity means that no state or federal court in Tennessee may enter a judgment against the personal assets of a state employee on a civil, state law claim arising out of acts or omissions by the employee unless: (1) the act or omission was outside the scope of employment; or (2) the act or omission was willful, malicious, criminal, or involved personal gain. State law claims to which this immunity applies include claims for personal injury, property damage, and libel and slander.

The immunity of state employees under Tennessee law has no mandatory effect in courts outside Tennessee. Whether other states recognize Tennessee employee immunity depends on their willingness to do so as a matter of comity. Generally speaking, if a state has granted immunity to its own employees, the courts of that state will be inclined to recognize the immunity granted by another state. Mississippi and Arkansas recognize Tennessee employee immunity. Alabama and New Jersey do not. The Tennessee statutory sovereign immunity provision, Tenn. Code Ann. 20-13-102, expressly prohibits claims for money damages against the state or any officer under Tenn. Code Ann. 20-13-102(a), which provides as follows: 

        No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the
        state, or against any  officer of the state acting by authority of the state, with a view to reach the
        state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such
        officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the
        state.

Tennessee law prohibits monetary claims against individual employees (or the state) as well as claims seeking declaratory judgment or other declaratory relief under the Declaratory Judgment Act, Tenn. Code Ann. 29-14-101 et seq., or the Administrative Procedures Act, Tenn. Code Ann. 4-5-225.  Any state court lawsuit or complaint filed to recover money damages, attorney fees, or reimbursement, is considered to be a suit filed with a view to reach the state, its treasury, funds, that must be dismissed under Tenn. Code Ann. 20-13-102(a).  See City of Jackson v. State of Tennessee , No. M2006-01995-COA-R3-CV, Op. filed May 27, 2008.

Because the State of Tennessee and its employees acting within the scope of their employment are protected by the doctrine of governmental immunity, suit can be brought before the Division of Claims Administration/Tennessee Claims Commission, which has exclusive jurisdiction to adjudicate the merits of such claims under statutory exceptions to governmental immunity.  

FILING A CLAIM FOR DAMAGES

Handling of liability claims involving state employees is centralized in the Department of the Treasury.  Claims are filed in the Division of Claims Administration, a division of the Treasury, using the Claim Form provided by the Treasury for this purpose. Claims are payable from the Risk Management Fund, and damages are limited to $300,000 per claimant/$1,000,000 per occurrence. 

             Initiating a claim: The first step in making a claim is to give written notice of the claim to the Division of Claims Administration (See Tenn. Code Ann. 9-8-402). That notice may be given using the form provided by the Treasury, but not required:  The Treasury Department's Division of Claims Administration is responsible for paying all claims.

             Special Instructions: The Claim Form must be printed, filled out completely, signed with an original signature. and then sent by U.S. mail to the address shown on the form. Click on the link above to access the form.

             Submitting the Form:  The completed form should be mailed to the following address:  State of Tennessee, Division of Claims Administration, 9th Floor, Andrew Jackson Building, Nashville, Tennessee, 37243-0243.
            Further Information:   For further information on filing a claim or questions regarding the status of a claim that has already been filed, contact the Division of Claims Administration at (615) 741-2734. 

COVERAGE LIMITS

Professional liability coverage for state employees is available in the amount of  $300,000 per claimant//$1,000,000 per occurrence. Covered acts and omissions follow: 

  1. Loss, damage, or destruction of personal property, if the personal property is required by the state to be used in the course of employment
  2. Damage to personal vehicles:  (a) The employee must first submit the claim to his/her insurer; (b) If the damage is to a motor vehicle and the employee "does not have the benefit of insurance coverage," compensation is limited to $500.
  3. Damage to rental vehicles
  4. Negligent operation of motor vehicles, boats, and planes
  5. Nuisances created or maintained
  6. Negligently created or maintained dangerous conditions on state-controlled real property
  7. Legal malpractice
  8. Medical malpractice
  9. Negligent care, custody and control of persons. Confinement in a state institution or facility or negligent release from a state institution or facility is a prerequisite to recovery
  10. Negligent care, custody or control of personal property
  11. Negligent care, custody or control of animals
  12. Negligent construction of state sidewalks and buildings
  13. Dangerous conditions on state maintained highways
  14. Workers compensation, including death claims
  15. Negligent planning, inspection of, design of, preparation of plans for, approval of plans for, and construction of public roads, streets, highways, or bridges
  16. Negligent maintenance of highways, bridges, and similar structures designated by TDOT as being on the state system of highways or the state system of interstate highways
  17. Breach of written contract
  18. Negligent operation of machinery or equipment.
  19. Negligent deprivation of statutory rights, other than civil service claims
  20. Injuries to non-state employees who are passengers in a motor vehicle driven by a state employee in the course of his/her employment
  21. Victim compensation/Criminal injuries compensation
  22. Libel
  23. Slander
  24. Indemnification of the United States for damages due to the construction or operation and maintenance of projects for water resource development and conservation, except damages due to the fault or negligence of the United States or its contractors
  25. Claims related to purchases or failure(s) to purchase of commodities or services from disabled persons
  26. Inverse condemnation
  27. Full or partial payment of civil damage awards against state employees, including pre-and post-judgment interest
The primary jurisdictional statute, Tenn. Code Ann. 9-8-307 also contains other causes of action.

FEDERAL LAW CLAIMS

The immunity of state employees under Tennessee law has no effect in state or federal court actions for violation of the federal constitution or federal statutes. This is because the United States Supreme Court has ruled that states cannot immunize their employees against liability for violating federal law. Because the Supreme Court has ruled this way, the State of Tennessee cannot adopt policies or enact statutes that will prevent imposition of individual liability on a state employee.

State employees may be held personally liable for both compensatory and punitive damages in certain kinds of federal civil rights actions. The most common federal civil rights actions against state employees in their personal capacities are based on an allegation that a state employee violated the equal protection clause (discrimination), due process substantive [1] and procedural due process), or the free speech clause of the First Amendment.                   

REIMBURSEMENT FOR JUDGMENTS AND SETTLEMENTS

The immunity provided by Tenn. Code Ann. 9-8-307(h) may not protect employees against personal liability in all cases. State law also authorizes the state Board of Claims to reimburse an employee for actual damages, interest, costs, and attorney fees paid by the employee when individual liability is imposed by a court and damages are awarded in a civil lawsuit, up to a maximum of $300,000 per plaintiff and $1,000,000 per occurrence. See Tenn. Code Ann. 9-8-112(h). This includes all federal law actions (in which employee state law immunity has no effect) and any state law action in which employee immunity is not sustained. In its discretion, the Board of Claims may reimburse the employee for amounts beyond these limits. In all cases, reimbursement will be for actual damages, but not punitive damages. The Board of Claims may also pay settlements.

Reimbursement will be made only upon a determination by the Board of Claims that the employee was acting within the scope of his or her employment and under apparent lawful authority and orders. Even if the Board finds that the employee was acting within the scope of his or her employment, the Board may reduce the reimbursement for any circumstance it finds warranting a reduction (for example, failure of the employee to cooperate fully in defense of the litigation or nondisclosure of material information to counsel). In addition, the Board may deny reimbursement altogether if the employee or counsel for the employee did not make reasonable efforts to defend the action. No judgment will be paid if the employee engaged in conduct or  action that was grossly negligent, willful, malicious, criminal, or involved personal gain.  

The above information about the law does not constitute legal advice.  While this site provides information designed to help TSU employees safely address employment-related legal needs, legal information is not the same as legal advice.  The application of the law can vary according to the individual's specific circumstances. Any employee who is named as a party in a lawsuit arising out of his or her employment with Tennessee State University should immediately contact the Office of University Counsel at (615) 963-7923 for information concerning the case.
 

[1] Substantive due process imposes individual liability if conduct is found to be arbitrary or capricious.

 





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