ORS 30.285¹

Public body shall indemnify public officers

• • procedure for requesting counsel
• • extent of duty of state
• • obligation for judgment and attorney fees

Notes of Decisions

Because of statutory mandate that school district indemnify employes against tort claims arising from acts performed during execu­tion of employe's job duties, school district's insurer is not entitled to appor­tioned contribu­tion from teacher's per­sonal insurer for tort claims arising out of teacher's acts performed during execu­tion of job responsibilities. United Pacific/Reliance Ins. v. Horace Mann Ins., 65 Or App 21, 670 P2d 172 (1983)

Where plaintiff, per­sonal auto insurer of school administrator, also insured district's vicarious liability for administrator, plaintiff could not, under this sec­tion, recover indemnity from district for administrator's on-job auto accident. Calif. Cas. Ins. v. David Douglas School Distr., 71 Or App 549, 693 P2d 54 (1984), Sup Ct review denied

Where plaintiff volunteered at request of Workers' Compensa­tion Depart­ment to es­tab­lish and chair peer review committee to review at request of depart­ment particular chiropractor billings to compensa­tion insurance carriers, control exercised over committee was sufficient to es­tab­lish agency rela­tionship. Samuel v. Frohnmayer, 82 Or App 375, 728 P2d 97 (1986), Sup Ct review denied, as modified by 84 Or App 80 (1987)

Where plaintiff insurer, which insured van that was loaned to defendant University of Oregon, sought declara­tion that state's duty to indemnity its employes against tort claims under this sec­tion rendered state primarily liable and absolved plaintiff insurer of its contractual duty to defend and indemnify defendants against liability claims of third per­sons arising out of automobile accident, trial court properly granted defendants' mo­tion for summary judg­ment. Fircrest Poultry Farms Co. v. State of Oregon, 82 Or App 695, 728 P2d 968 (1986), Sup Ct review denied

Where former assistant director of Puerto Rico's Commercial Develop­ment Company brought 1983 ac­tion against company and other defendants for allegedly dismissing him in viola­tion of First and Fourteenth Amend­ment rights, former executive director entitled to qualified immunity and any back pay awarded to plaintiff reduced by interim earnings. Figueroa-Rodriguez v. Aquino, 863 F2d 1037 (1st Cir. 1988)

Where public employer con­ducted no investiga­tion other than complaint against employee before declining his tendered de­fense, employer failed to satisfy investiga­tion require­ment of ORS 30.287 (Counsel for public officer) and was therefore re­quired to indemnify employee. Cunliffe v. Pomplin, 102 Or App 403, 794 P2d 816 (1990), Sup Ct review denied

Where expense of defending of­fi­cer, employee or agent of public body is incurred by third party, third party may not claim right to indemnifica­tion. Gill v. SAIF, 110 Or App 533, 823 P2d 447 (1992), aff'd as modified 314 Or 719, 842 P2d 402 (1992)

Allega­tion of ethics viola­tion does not constitute tort claim or demand. City of Tualatin v. City-County Insurance Services Trust, 129 Or App 198, 878 P2d 1139 (1994), aff'd 321 Or 164, 894 P2d 1158 (1995)

Duty of public employer to indemnify and defend employee against suits arising in performance of employee's duty does not impose duty on plaintiff to give employer notice when suing employee in private capacity. Krieger v. Just, 319 Or 328, 876 P2d 754 (1994)

Court must make separate inquiry to determine whether to substitute state as sole defendant rather than relying on Attorney General's determina­tion. Berry v. Dept. of General Services, 141 Or App 225, 917 P2d 1070 (1996)

Prohibi­tion against public expenditure for de­fense of malfeasance or willful or wanton neglect does not apply to de­fense of claims other than tort claims. Eugene Police Employees' Associa­tion v. City of Eugene, 157 Or App 341, 972 P2d 1191 (1998), Sup Ct review denied

Where insurance policy applies to of­fi­cer, employee or agent but not to public body, policy releases public body only from obliga­tion under ORS 30.287 (Counsel for public officer) to appoint counsel, not from duty to defend, save harmless and indemnify. Genesis Indemnity Insurance Co. v. Deschutes County, 194 Or App 446, 95 P3d 748 (2004)

Notes of Decisions

Dismissal of ac­tion for per­sonal injuries was improper where based solely upon allega­tions of complaint and allega­tions did not state sufficient facts for court to determine whether particular govern­mental act was discre­tionary func­tion or duty. Hulen v. City of Hermiston, 30 Or App 1141, 569 P2d 665 (1977)

Where plaintiff was mis­takenly arrested following computer retrieval of identifying and locator data for individual of similar name, demurrer as to three of defendants was properly sustained because plaintiff failed to allege sufficient facts from which duty to plaintiff could be discerned, and summary judg­ment as to two of defendants was improperly allowed because affidavits did not reveal whether defendant's acts were discre­tionary or ministerial. Murphy v. City of Portland, 36 Or App 745, 585 P2d 732 (1978)

Complaint allega­tion that plaintiff submitted applica­tion for building permit in proper form was sufficient to allow pros­e­cu­­tion of claim against public of­fi­cer. Dykeman v. State, 39 Or App 629, 593 P2d 1183 (1979)

Even if Children's Services Division's failure to follow re­quired APA rulemaking pro­ce­dures could constitute tort within meaning of these sec­tions, CSD was immune from tort liability under ORS 30.265 (Scope of liability of public body, officers, employees and agents) (3)(f) where it terminated its benefit program without prior rulemaking pro­ce­dures. Burke v. Children's Services Division, 288 Or 533, 607 P2d 141 (1980)

Ac­tions brought under 42 U.S.C. 1981 are subject to two-year statute of limita­tions of Tort Claims Act. Loiseau v. Dept. of Human Resources, 558 F Supp 521 (1983)

Where police of­fi­cer pursued plaintiff in marked police car with lights and siren activated in area defendant was assigned to patrol, with no known motive other than to fulfill duty as police of­fi­cer, trial court was correct in concluding that defendant was acting in course and scope of employ­ment, despite plaintiff's claim that defendant's acts were excessive. Brungardt v. Barton, 69 Or App 440, 685 P2d 1021 (1984)

Plaintiff in 42 U.S.C. 1983 ac­tion brought under the Oregon Tort Claims Act against municipality for ac­tions of its employes need not show that employes acted according to "custom or usage" as in federal §1983 ac­tion. Haase v. City of Eugene, 85 Or App 107, 735 P2d 1258 (1987)

Limita­tions of Oregon Tort Claims Act do not apply to claims brought in state court alleging viola­tion of federal Civil Rights Act. Rogers v. Saylor, 306 Or 267, 760 P2d 232 (1988)

Mayor was immune from liability in tort claim under this sec­tion where former chief of police brought tort ac­tion in connec­tion with her removal from office. Harrington v. City of Portland, 708 F Supp 1561 (D. Or. 1988)

Where plaintiffs brought ac­tion under 42 U.S.C 1983 and this sec­tion after defendant Children's Services Division employees removed plaintiff's child from home following reports of abuse, defendants are entitled to absolute immunity under this sec­tion for their discre­tionary acts as provided by ORS 30.265 (Scope of liability of public body, officers, employees and agents) (3). Tennyson v. Children's Services Division, 308 Or 80, 775 P2d 1365 (1989)

There is no legislative purpose to extend defini­tion of "agent" to control to include ostensible agent when doctrine of apparent authority is intended to achieve different purpose. Giese v. Bay Area Health District, 101 Or App 410, 790 P2d 1198 (1990), Sup Ct review denied

Because there was evidence that resident was not hospital's agent in first place, fact that "loaned servant" doctrine does not eliminate agency rela­tionship between hospital and employee who assists physician in surgery did not give plaintiff grounds for di­rected verdict. Shepard v. Sisters of Providence, 102 Or App 196, 793 P2d 1384 (1990)

Completed Cita­tions

State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)

Atty. Gen. Opinions

Liability of members of the State Water Resources Board for damages of party adversely affected by reclassifica­tion, (1972) Vol 36, p 250; faculty members scope of employ­ment, (1975) Vol 37, p 911; state liability for neg­li­gent opera­tion by drivers of state-owned vehicles in authorized car pool, (1978) Vol 39, p 101; State Accident Insurance Fund Corpora­tion as public body, (1980) Vol 40, p 344; Use of Liability Fund balances to pay cost of claims for which date of loss precedes authorized imple­menta­tion date of state self-insurance program, (1981) Vol 41, p 329; Depart­ment of Veterans Affairs fee appraisers and inspectors as agents of state for purposes of tort liability, (1981) Vol 42, p 103; CPAs and PAs volunteering services to investigate and review complaints against accountancy licensees as employes or agents of public body, (1983) Vol 43, p 145; Cause of ac­tion under Oregon Tort Claims Act for declarative or injunctive relief or for viola­tion of federal statute, (1985) Vol. 44, p 416; Oregon Medical Insurance Pool, board, members, employes and agents immune from tort claims, (1989) Vol 46, p 155; director and other state employes are covered by Oregon Tort Claims Act, (1989) Vol 46, p 155; various per­sons have immunity from pros­e­cu­­tion for crim­i­nal acts committed in carrying out pool programs, (1989) Vol 46, p 155

Law Review Cita­tions

53 OLR 371 (1974); 23 WLR 493, 507 (1987); 69 OLR 157 (1990); 38 WLR 657 (2002)