Sub. H. B. No. 25 As Passed by the Senate

Representatives Wagner, J. Stewart, Hartnett, Carano, Otterman, Latta, Widener, Aslanides, S. Patton, Buehrer, Wolpert, Combs, Kearns, Webster, McGregor, Reidelbach, Law, Core, Schaffer, Faber, Chandler, Cassell, Hagan, Wagoner, Martin, Gilb, Allen, Barrett, Blessing, Book, Carmichael, Coley, Collier, Daniels, DeBose, Dolan, Domenick, C. Evans, Fessler, Flowers, Gibbs, Harwood, Hughes, Key, Mason, Miller, Perry, Schneider, Seaver, Seitz, D. Stewart, Strahorn, Taylor, Walcher, Willamowski, Williams, Yates, Yuko

A BILL

To amend sections 145.06, 742.05, 2743.02, 3307.06, 1
3309.06, and 5505.042 of the Revised Code and to 2
amend Section 5 of Sub. S.B. 133 of the 125th 3
General Assembly to allow a state officer or 4
employee who in a civil action is alleged to lack 5
immunity from personal liability to participate in 6
proceedings to determine whether the officer or 7
employee is entitled to personal immunity, and to 8
revise the law governing the filling of a vacancy 9
on a state retirement system board. 10

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 145.06, 742.05, 2743.02, 3307.06, 11
3309.06, and 5505.042 of the Revised Code be amended to read as 12
follows: 13

       Sec. 145.06. (A) If a vacancy occurs in the term of any 14
employee member of the public employees retirement board, the 15
remaining members of the board shall elect a successor employee 16
member from the employee group lacking representation because of 17
the vacancy. On certification of the election results in 18
accordance with rules adopted under section 145.058 of the Revised 19
Code, the successor employee member shall hold office until the 20
first day of the new term that follows the next board election 21
that occurs not less than ninety days after the successor employee 22
member's election. 23

       Any employee member of the board who fails to attend the 24
meetings of the board for three months or longer, without valid 25
excuse, shall be considered as having resigned, and the board 26
shall declare the employee member's office vacated as of the date 27
of the adoption of a proper resolution. 28

       (B) If a vacancy occurs during the term of office of a 29
retirant member of the board, the remaining members of the board 30
shall elect a successor retirant member who shall be a former 31
member of the public employees retirement system who is eligible 32
for election under section 145.04 of the Revised Code as a 33
retirant member of the board. On certification of the election 34
results in accordance with rules adopted under section 145.058 of 35
the Revised Code, the successor retirant member shall hold office 36
until the first day of the new term that follows the next board 37
election that occurs not less than ninety days after the successor 38
retirant member's election. 39

       If a retirant member of the board fails to attend the 40
meetings of the board for three months or longer, without valid 41
excuse, the retirant member shall be considered as having 42
resigned, and the board shall declare the member's office vacated 43
as of the date of the adoption of a proper resolution. 44

       If as a result of changed circumstances a retirant member 45
would no longer qualify for membership on the board as the 46
retirant member, the retirant member's office shall be considered 47
vacant, and a successor retirant member shall be chosen in the 48
manner specified in this division. 49

       (C) Elections under this section to fill a vacancy on the 50
board shall be conducted in accordance with rules adopted under 51
section 145.058 of the Revised Code. 52

       Sec. 742.05. Any vacancy occurring in the term of a member 53
of the board of trustees of the Ohio police and fire pension fund 54
who is the fiscal officer of a municipal corporation shall be 55
filled by appointment by the governor for the unexpired term of 56
such member. 57

        If a vacancy occurs in the term of an employee or retirant 58
member of the board, all the remaining members of the board shall 59
elect a successor employee or retirant member. On certification of 60
the election results in accordance with rules adopted under 61
section 742.045 of the Revised Code, the successor member shall 62
hold office until the first day of the new term that follows the 63
next board election that occurs not less than ninety days after 64
the successor member's election. 65

       Elections under this section to fill a vacancy on the board 66
shall be conducted in accordance with rules adopted under section 67
742.045 of the Revised Code. 68

       If a member of the board who is the fiscal officer of a 69
municipal corporation ceases to be a fiscal officer of a municipal 70
corporation, a vacancy shall exist. 71

       If an employee member of the board ceases to be a member of 72
the fund, a vacancy shall exist. 73

       If as a result of changed circumstances a retirant member no 74
longer qualifies for membership on the board as a retirant member, 75
a vacancy shall exist. 76

       Any elected or appointed member of the board who fails to 77
attend three consecutive meetings of the board, without valid 78
excuse, shall be considered as having resigned from the board and 79
the board shall declare the member's office vacated and as of the 80
date of the adoption of a proper resolution a vacancy shall exist. 81

       Sec. 2743.02. (A)(1) The state hereby waives its immunity 82
from liability, except as provided for the office of the state 83
fire marshal in division (G)(1) of section 9.60 and division (B) 84
of section 3737.221 of the Revised Code and subject to division 85
(H) of this section, and consents to be sued, and have its 86
liability determined, in the court of claims created in this 87
chapter in accordance with the same rules of law applicable to 88
suits between private parties, except that the determination of 89
liability is subject to the limitations set forth in this chapter 90
and, in the case of state universities or colleges, in section 91
3345.40 of the Revised Code, and except as provided in division 92
(A)(2) or (3) of this section. To the extent that the state has 93
previously consented to be sued, this chapter has no 94
applicability. 95

       Except in the case of a civil action filed by the state, 96
filing a civil action in the court of claims results in a complete 97
waiver of any cause of action, based on the same act or omission, 98
which the filing party has against any officer or employee, as 99
defined in section 109.36 of the Revised Code. The waiver shall be 100
void if the court determines that the act or omission was 101
manifestly outside the scope of the officer's or employee's office 102
or employment or that the officer or employee acted with malicious 103
purpose, in bad faith, or in a wanton or reckless manner. 104

       (2) If a claimant proves in the court of claims that an 105
officer or employee, as defined in section 109.36 of the Revised 106
Code, would have personal liability for the officer's or 107
employee's acts or omissions but for the fact that the officer or 108
employee has personal immunity under section 9.86 of the Revised 109
Code, the state shall be held liable in the court of claims in any 110
action that is timely filed pursuant to section 2743.16 of the 111
Revised Code and that is based upon the acts or omissions. 112

       (3)(a) Except as provided in division (A)(3)(b) of this 113
section, the state is immune from liability in any civil action or 114
proceeding involving the performance or nonperformance of a public 115
duty, including the performance or nonperformance of a public duty 116
that is owed by the state in relation to any action of an 117
individual who is committed to the custody of the state. 118

       (b) The state immunity provided in division (A)(3)(a) of this 119
section does not apply to any action of the state under 120
circumstances in which a special relationship can be established 121
between the state and an injured party. A special relationship 122
under this division is demonstrated if all of the following 123
elements exist: 124

       (i) An assumption by the state, by means of promises or 125
actions, of an affirmative duty to act on behalf of the party who 126
was allegedly injured; 127

       (ii) Knowledge on the part of the state's agents that 128
inaction of the state could lead to harm; 129

       (iii) Some form of direct contact between the state's agents 130
and the injured party; 131

       (iv) The injured party's justifiable reliance on the state's 132
affirmative undertaking. 133

       (B) The state hereby waives the immunity from liability of 134
all hospitals owned or operated by one or more political 135
subdivisions and consents for them to be sued, and to have their 136
liability determined, in the court of common pleas, in accordance 137
with the same rules of law applicable to suits between private 138
parties, subject to the limitations set forth in this chapter. 139
This division is also applicable to hospitals owned or operated by 140
political subdivisions which have been determined by the supreme 141
court to be subject to suit prior to July 28, 1975. 142

       (C) Any hospital, as defined in section 2305.113 of the 143
Revised Code, may purchase liability insurance covering its 144
operations and activities and its agents, employees, nurses, 145
interns, residents, staff, and members of the governing board and 146
committees, and, whether or not such insurance is purchased, may, 147
to such extent as its governing board considers appropriate, 148
indemnify or agree to indemnify and hold harmless any such person 149
against expense, including attorney's fees, damage, loss, or other 150
liability arising out of, or claimed to have arisen out of, the 151
death, disease, or injury of any person as a result of the 152
negligence, malpractice, or other action or inaction of the 153
indemnified person while acting within the scope of the 154
indemnified person's duties or engaged in activities at the 155
request or direction, or for the benefit, of the hospital. Any 156
hospital electing to indemnify such persons, or to agree to so 157
indemnify, shall reserve such funds as are necessary, in the 158
exercise of sound and prudent actuarial judgment, to cover the 159
potential expense, fees, damage, loss, or other liability. The 160
superintendent of insurance may recommend, or, if such hospital 161
requests the superintendent to do so, the superintendent shall 162
recommend, a specific amount for any period that, in the 163
superintendent's opinion, represents such a judgment. This 164
authority is in addition to any authorization otherwise provided 165
or permitted by law. 166

       (D) Recoveries against the state shall be reduced by the 167
aggregate of insurance proceeds, disability award, or other 168
collateral recovery received by the claimant. This division does 169
not apply to civil actions in the court of claims against a state 170
university or college under the circumstances described in section 171
3345.40 of the Revised Code. The collateral benefits provisions of 172
division (B)(2) of that section apply under those circumstances. 173

       (E) The only defendant in original actions in the court of 174
claims is the state. The state may file a third-party complaint or 175
counterclaim in any civil action, except a civil action for two 176
thousand five hundred dollars or less, that is filed in the court 177
of claims. 178

       (F) A civil action against an officer or employee, as defined 179
in section 109.36 of the Revised Code, that alleges that the 180
officer's or employee's conduct was manifestly outside the scope 181
of the officer's or employee's employment or official 182
responsibilities, or that the officer or employee acted with 183
malicious purpose, in bad faith, or in a wanton or reckless manner 184
shall first be filed against the state in the court of claims, 185
which has exclusive, original jurisdiction to determine, 186
initially, whether the officer or employee is entitled to personal 187
immunity under section 9.86 of the Revised Code and whether the 188
courts of common pleas have jurisdiction over the civil action. 189
The officer or employee may participate in the immunity 190
determination proceeding before the court of claims to determine 191
whether the officer or employee is entitled to personal immunity 192
under section 9.86 of the Revised Code. 193

       The filing of a claim against an officer or employee under 194
this division tolls the running of the applicable statute of 195
limitations until the court of claims determines whether the 196
officer or employee is entitled to personal immunity under section 197
9.86 of the Revised Code. 198

       (G) Whenever a claim lies against an officer or employee who 199
is a member of the Ohio national guard, and the officer or 200
employee was, at the time of the act or omission complained of, 201
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28 202
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the 203
exclusive remedy of the claimant and the state has no liability 204
under this section. 205

       (H) If an inmate of a state correctional institution has a 206
claim against the state for the loss of or damage to property and 207
the amount claimed does not exceed three hundred dollars, before 208
commencing an action against the state in the court of claims, the 209
inmate shall file a claim for the loss or damage under the rules 210
adopted by the director of rehabilitation and correction pursuant 211
to this division. The inmate shall file the claim within the time 212
allowed for commencement of a civil action under section 2743.16 213
of the Revised Code. If the state admits or compromises the claim, 214
the director shall make payment from a fund designated by the 215
director for that purpose. If the state denies the claim or does 216
not compromise the claim at least sixty days prior to expiration 217
of the time allowed for commencement of a civil action based upon 218
the loss or damage under section 2743.16 of the Revised Code, the 219
inmate may commence an action in the court of claims under this 220
chapter to recover damages for the loss or damage. 221

       The director of rehabilitation and correction shall adopt 222
rules pursuant to Chapter 119. of the Revised Code to implement 223
this division. 224

       Sec. 3307.06. (A) Annually on the first Monday of May, one 225
contributing member, as defined in division (D) of section 3307.05 226
of the Revised Code, shall be elected by ballot to the state 227
teachers retirement board, except that, beginning with the annual 228
election for contributing members in May, 1978, and in the annual 229
election of each fourth year thereafter, two contributing members 230
shall be elected to the board. Elected contributing members shall 231
begin their respective terms of office on the first day of 232
September following their election and shall serve for a term of 233
four years. 234

       (B) The retired teacher members of the board, as defined in 235
division (E) of section 3307.05 of the Revised Code, shall be 236
elected for a term of four years. The retired teacher members 237
shall be elected to the board at the annual election for 238
contributing members of the board, as provided in division (A) of 239
this section, in the year in which the term of the current retired 240
teacher members would expire. The retired teacher members shall 241
begin their respective terms of office on the first day of 242
September following their election. 243

       No contributing member of the board who retires while a 244
member of the board shall be eligible to become a retired teacher 245
member of the board for three years after the date of the member's 246
retirement. 247

       (C) If a vacancy occurs during the term of office of any 248
elected member of the board, the remaining members of the board 249
shall elect a successor member. On certification of the election 250
results in accordance with rules adopted under section 3307.075 of 251
the Revised Code the successor member shall hold office until the 252
first day of the new term that follows the next board election 253
that occurs not less than ninety days after the successor member's 254
election. The successor member shall qualify for board membership 255
under the same division of section 3307.05 of the Revised Code as 256
the member's predecessor in office. Elections under this division 257
shall be conducted in accordance with rules adopted under section 258
3307.075 of the Revised Code. 259

       (D) If as a result of changed circumstances an elected member 260
of the board would no longer qualify for board membership under 261
that division of section 3307.05 of the Revised Code on the basis 262
of which the member was elected, or if such a member fails to 263
attend the meetings of the board for four months or longer, 264
without being excused, the member's position on the board shall be 265
considered vacant, and a successor member shall be elected, under 266
division (C) of this section, for the remainder of the unexpired 267
term. 268

       Sec. 3309.06. (A) Elections for employee and retirant members 269
of the school employees retirement board shall be held on the 270
first Monday of March. Terms of office of the employee and 271
retirant members of the board shall be for four years each, 272
commencing on the first day of July following the election and 273
ending on the thirtieth day of June. The initial terms of the 274
first retirant member and the new employee member shall commence 275
on July 1, 1984, and end on June 30, 1988. 276

       (B) The initial election of the second retirant member shall 277
be held at the first election that occurs later than ninety days 278
after ~~the effective date of this amendment~~September 15, 2004. 279
Subsequent elections shall be held each fourth year thereafter. 280

       (C) If a vacancy occurs during the term of an elected member 281
of the board, the remaining members of the board shall elect a 282
successor member. On certification of the election results in 283
accordance with rules adopted under section 3309.075 of the 284
Revised Code, the successor member shall hold office until the 285
first day of the new term that follows the next board election 286
that occurs not less than ninety days after the successor member's 287
election. The successor member shall qualify for board membership 288
under the same division of section 3309.05 of the Revised Code as 289
the member's predecessor in office. Elections under this division 290
shall be conducted in accordance with rules adopted under section 291
3309.075 of the Revised Code. 292

        (D) Employee members or retirant members of the board who 293
fail to attend the meetings of the board for four months or 294
longer, without being excused, shall be considered as having 295
resigned and successors shall be elected for their unexpired terms 296
pursuant to division (C) of this section. If as a result of 297
changed circumstances the retirant member would no longer qualify 298
for membership on the board as a retirant member, the office shall 299
be considered vacant, and a successor retirant member shall be 300
elected pursuant to division (C) of this section. 301

       Sec. 5505.042. Except as provided in section 5505.043 of the 302
Revised Code, any vacancy occurring in the term of a retirant 303
member of the state highway patrol retirement board or an employee 304
member of the board shall be filled by an election conducted in 305
the same manner as other retirant member and employee member 306
elections under section 5505.041 of the Revised Code. On 307
certification of the election results in accordance with rules 308
adopted under section 5505.047 of the Revised Code, the retirant 309
member or employee member elected shall hold office until the 310
first day of the new term that follows the next board election 311
that occurs not less than ninety days after the member's election. 312

       Section 2. That existing sections 145.06, 742.05, 2743.02, 313
3307.06, 3309.06, and 5505.042 of the Revised Code are hereby 314
repealed. 315

       Section 3. That Section 5 of Sub. S.B. 133 of the 125th 316
General Assembly be amended to read as follows: 317

       Sec. 5. Nothing in ~~this act~~Sub. S.B. 133 of the 125th 318
General Assembly shall affect the term of any elected member of a 319
state retirement board serving on the effective date of ~~this act~~ 320
Sub. S.B. 133 of the 125th General Assembly. 321

       The additional members of the state retirement systems to be 322
appointed pursuant to ~~this act~~Sub. S.B. 133 of the 125th General 323
Assembly shall be appointed and take office not later than ninety 324
days after the effective date of ~~this act~~Sub. S.B. 133 of the 325
125th General Assembly, except that an investment expert member 326
appointed jointly by the Speaker of the House of Representatives 327
and the President of the Senate shall not immediately take office 328
if taking office would result in an even number of members on that 329
state retirement board. The member shall take office at the 330
earliest time that taking office will result in an odd number of 331
members on that board. 332

       Not later than ninety days after the effective date of ~~this~~ 333
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 334
shall appoint the initial additional retirant member of the public 335
employees retirement board created by ~~this act~~Sub. S.B. 133 of 336
the 125th General Assembly. The retirant member shall hold office 337
until the first day of the new term that follows the next board 338
election that occurs not less than ninety days after the 339
appointment. 340

        Not later than ninety days after the effective date of ~~this~~ 341
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 342
shall appoint the initial additional retired teacher member 343
position created by ~~this act~~Sub. S.B. 133 of the 125th General 344
Assembly. The retired teacher member shall hold office until the 345
first day of the new term that follows the next board election 346
that occurs not less than ninety days after the appointment. 347

       Not later than ninety days after the effective date of ~~this~~ 348
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 349
shall appoint the initial additional retirant member of the school 350
employees retirement board created by ~~this act~~Sub. S.B. 133 of 351
the 125th General Assembly. The retirant member shall hold office 352
~~until the next board election that occurs not less than ninety~~ 353
~~days after the appointment~~through June 30, 2005, as directed in 354
Section 6 of Am. H.B. 10 of the 126th General Assembly. 355

       Not later than ninety days after the effective date of ~~this~~ 356
~~act~~Sub. S.B. 133 of the 125th General Assembly, the Governor 357
shall appoint the initial additional retirant member of the state 358
highway patrol retirement board created by ~~this act~~Sub. S.B. 133 359
of the 125th General Assembly. The retirant member shall hold 360
office until the first day of the new term that follows the next 361
board election that occurs not less than ninety days after the 362
appointment. 363

       Section 4. That existing Section 5 of Sub. S.B. 133 of the 364
125th General Assembly is hereby repealed. 365

       Section 5. Section 2743.02 of the Revised Code as amended by 366
this act shall take effect on the ninety-first day after the 367
effective date of this act. 368

Section 1. That sections 145.06, 742.05, 2743.02, 3307.06,	11
3309.06, and 5505.042 of the Revised Code be amended to read as	12
follows:	13

Sec. 145.06. (A) If a vacancy occurs in the term of any	14
employee member of the public employees retirement board, the	15
remaining members of the board shall elect a successor employee	16
member from the employee group lacking representation because of	17
the vacancy. On certification of the election results in	18
accordance with rules adopted under section 145.058 of the Revised	19
Code, the successor employee member shall hold office until the	20
first day of the new term that follows the next board election	21
that occurs not less than ninety days after the successor employee	22
member's election.	23

Any employee member of the board who fails to attend the	24
meetings of the board for three months or longer, without valid	25
excuse, shall be considered as having resigned, and the board	26
shall declare the employee member's office vacated as of the date	27
of the adoption of a proper resolution.	28

(B) If a vacancy occurs during the term of office of a	29
retirant member of the board, the remaining members of the board	30
shall elect a successor retirant member who shall be a former	31
member of the public employees retirement system who is eligible	32
for election under section 145.04 of the Revised Code as a	33
retirant member of the board. On certification of the election	34
results in accordance with rules adopted under section 145.058 of	35
the Revised Code, the successor retirant member shall hold office	36
until the first day of the new term that follows the next board	37
election that occurs not less than ninety days after the successor	38
retirant member's election.	39

If a retirant member of the board fails to attend the	40
meetings of the board for three months or longer, without valid	41
excuse, the retirant member shall be considered as having	42
resigned, and the board shall declare the member's office vacated	43
as of the date of the adoption of a proper resolution.	44

If as a result of changed circumstances a retirant member	45
would no longer qualify for membership on the board as the	46
retirant member, the retirant member's office shall be considered	47
vacant, and a successor retirant member shall be chosen in the	48
manner specified in this division.	49

(C) Elections under this section to fill a vacancy on the	50
board shall be conducted in accordance with rules adopted under	51
section 145.058 of the Revised Code.	52

Sec. 742.05. Any vacancy occurring in the term of a member	53
of the board of trustees of the Ohio police and fire pension fund	54
who is the fiscal officer of a municipal corporation shall be	55
filled by appointment by the governor for the unexpired term of	56
such member.	57

If a vacancy occurs in the term of an employee or retirant	58
member of the board, all the remaining members of the board shall	59
elect a successor employee or retirant member. On certification of	60
the election results in accordance with rules adopted under	61
section 742.045 of the Revised Code, the successor member shall	62
hold office until the first day of the new term that follows the	63
next board election that occurs not less than ninety days after	64
the successor member's election.	65

Elections under this section to fill a vacancy on the board	66
shall be conducted in accordance with rules adopted under section	67
742.045 of the Revised Code.	68

If a member of the board who is the fiscal officer of a	69
municipal corporation ceases to be a fiscal officer of a municipal	70
corporation, a vacancy shall exist.	71

If an employee member of the board ceases to be a member of	72
the fund, a vacancy shall exist.	73

If as a result of changed circumstances a retirant member no	74
longer qualifies for membership on the board as a retirant member,	75
a vacancy shall exist.	76

Any elected or appointed member of the board who fails to	77
attend three consecutive meetings of the board, without valid	78
excuse, shall be considered as having resigned from the board and	79
the board shall declare the member's office vacated and as of the	80
date of the adoption of a proper resolution a vacancy shall exist.	81

Sec. 2743.02. (A)(1) The state hereby waives its immunity	82
from liability, except as provided for the office of the state	83
fire marshal in division (G)(1) of section 9.60 and division (B)	84
of section 3737.221 of the Revised Code and subject to division	85
(H) of this section, and consents to be sued, and have its	86
liability determined, in the court of claims created in this	87
chapter in accordance with the same rules of law applicable to	88
suits between private parties, except that the determination of	89
liability is subject to the limitations set forth in this chapter	90
and, in the case of state universities or colleges, in section	91
3345.40 of the Revised Code, and except as provided in division	92
(A)(2) or (3) of this section. To the extent that the state has	93
previously consented to be sued, this chapter has no	94
applicability.	95

Except in the case of a civil action filed by the state,	96
filing a civil action in the court of claims results in a complete	97
waiver of any cause of action, based on the same act or omission,	98
which the filing party has against any officer or employee, as	99
defined in section 109.36 of the Revised Code. The waiver shall be	100
void if the court determines that the act or omission was	101
manifestly outside the scope of the officer's or employee's office	102
or employment or that the officer or employee acted with malicious	103
purpose, in bad faith, or in a wanton or reckless manner.	104

(2) If a claimant proves in the court of claims that an	105
officer or employee, as defined in section 109.36 of the Revised	106
Code, would have personal liability for the officer's or	107
employee's acts or omissions but for the fact that the officer or	108
employee has personal immunity under section 9.86 of the Revised	109
Code, the state shall be held liable in the court of claims in any	110
action that is timely filed pursuant to section 2743.16 of the	111
Revised Code and that is based upon the acts or omissions.	112

(3)(a) Except as provided in division (A)(3)(b) of this	113
section, the state is immune from liability in any civil action or	114
proceeding involving the performance or nonperformance of a public	115
duty, including the performance or nonperformance of a public duty	116
that is owed by the state in relation to any action of an	117
individual who is committed to the custody of the state.	118

(b) The state immunity provided in division (A)(3)(a) of this	119
section does not apply to any action of the state under	120
circumstances in which a special relationship can be established	121
between the state and an injured party. A special relationship	122
under this division is demonstrated if all of the following	123
elements exist:	124

(i) An assumption by the state, by means of promises or	125
actions, of an affirmative duty to act on behalf of the party who	126
was allegedly injured;	127

(ii) Knowledge on the part of the state's agents that	128
inaction of the state could lead to harm;	129

(iii) Some form of direct contact between the state's agents	130
and the injured party;	131

(iv) The injured party's justifiable reliance on the state's	132
affirmative undertaking.	133

(B) The state hereby waives the immunity from liability of	134
all hospitals owned or operated by one or more political	135
subdivisions and consents for them to be sued, and to have their	136
liability determined, in the court of common pleas, in accordance	137
with the same rules of law applicable to suits between private	138
parties, subject to the limitations set forth in this chapter.	139
This division is also applicable to hospitals owned or operated by	140
political subdivisions which have been determined by the supreme	141
court to be subject to suit prior to July 28, 1975.	142

(C) Any hospital, as defined in section 2305.113 of the	143
Revised Code, may purchase liability insurance covering its	144
operations and activities and its agents, employees, nurses,	145
interns, residents, staff, and members of the governing board and	146
committees, and, whether or not such insurance is purchased, may,	147
to such extent as its governing board considers appropriate,	148
indemnify or agree to indemnify and hold harmless any such person	149
against expense, including attorney's fees, damage, loss, or other	150
liability arising out of, or claimed to have arisen out of, the	151
death, disease, or injury of any person as a result of the	152
negligence, malpractice, or other action or inaction of the	153
indemnified person while acting within the scope of the	154
indemnified person's duties or engaged in activities at the	155
request or direction, or for the benefit, of the hospital. Any	156
hospital electing to indemnify such persons, or to agree to so	157
indemnify, shall reserve such funds as are necessary, in the	158
exercise of sound and prudent actuarial judgment, to cover the	159
potential expense, fees, damage, loss, or other liability. The	160
superintendent of insurance may recommend, or, if such hospital	161
requests the superintendent to do so, the superintendent shall	162
recommend, a specific amount for any period that, in the	163
superintendent's opinion, represents such a judgment. This	164
authority is in addition to any authorization otherwise provided	165
or permitted by law.	166

(D) Recoveries against the state shall be reduced by the	167
aggregate of insurance proceeds, disability award, or other	168
collateral recovery received by the claimant. This division does	169
not apply to civil actions in the court of claims against a state	170
university or college under the circumstances described in section	171
3345.40 of the Revised Code. The collateral benefits provisions of	172
division (B)(2) of that section apply under those circumstances.	173

(E) The only defendant in original actions in the court of	174
claims is the state. The state may file a third-party complaint or	175
counterclaim in any civil action, except a civil action for two	176
thousand five hundred dollars or less, that is filed in the court	177
of claims.	178

(F) A civil action against an officer or employee, as defined	179
in section 109.36 of the Revised Code, that alleges that the	180
officer's or employee's conduct was manifestly outside the scope	181
of the officer's or employee's employment or official	182
responsibilities, or that the officer or employee acted with	183
malicious purpose, in bad faith, or in a wanton or reckless manner	184
shall first be filed against the state in the court of claims,	185
which has exclusive, original jurisdiction to determine,	186
initially, whether the officer or employee is entitled to personal	187
immunity under section 9.86 of the Revised Code and whether the	188
courts of common pleas have jurisdiction over the civil action.	189
The officer or employee may participate in the immunity	190
determination proceeding before the court of claims to determine	191
whether the officer or employee is entitled to personal immunity	192
under section 9.86 of the Revised Code.	193

The filing of a claim against an officer or employee under	194
this division tolls the running of the applicable statute of	195
limitations until the court of claims determines whether the	196
officer or employee is entitled to personal immunity under section	197
9.86 of the Revised Code.	198

(G) Whenever a claim lies against an officer or employee who	199
is a member of the Ohio national guard, and the officer or	200
employee was, at the time of the act or omission complained of,	201
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	202
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	203
exclusive remedy of the claimant and the state has no liability	204
under this section.	205