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H. B. No. 25 As IntroducedAs Introduced
126th General Assembly | Regular Session | 2005-2006 |
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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
A BILL
To amend section 2743.02 of the Revised Code to allow a state officer or employee who in a civil action is alleged to lack immunity from personal liability to participate fully in proceedings to determine whether the officer or employee is entitled to personal immunity.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2743.02 of the Revised Code be amended to read as follows:
Sec. 2743.02. (A)(1) The state hereby waives its immunity
from liability, except as provided for the office of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, and consents to be sued, and have its liability
determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between
private parties, except that the determination of liability is
subject to the limitations set forth in this chapter and, in the
case of state universities or colleges, in section 3345.40 of the
Revised Code, and except as provided in division (A)(2) of this
section. To the extent that the state has previously consented
to
be sued, this chapter has no applicability. Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete
waiver of any cause of action, based on the same act or
omission,
which the filing party has against any officer or
employee, as
defined in section 109.36 of the Revised Code. The
waiver shall
be void if the court determines that the act or
omission was
manifestly outside the scope of the officer's or
employee's office
or employment or that the officer or employee
acted with malicious
purpose, in bad faith, or in a wanton or
reckless manner. (2) If a claimant proves in the court of claims that an
officer or employee, as defined in section 109.36 of the Revised
Code, would have personal liability for
the officer's or
employee's acts or omissions but
for the fact that the officer or
employee has personal immunity
under section 9.86 of the Revised
Code, the state shall be held
liable in the court of claims in any
action that is timely filed
pursuant to section 2743.16 of the
Revised Code and that is based
upon the acts or omissions. (B) The state hereby waives the immunity from liability of
all hospitals owned or operated by one or more political
subdivisions and consents for them to be sued, and to have their
liability determined, in the court of common pleas, in accordance
with the same rules of law applicable to suits between private
parties, subject to the limitations set forth in this chapter.
This division is also applicable to hospitals owned or operated
by
political subdivisions which have been determined by the
supreme
court to be subject to suit prior to July 28, 1975. (C) Any hospital, as defined
in section
2305.113 of the
Revised Code, may purchase liability insurance
covering its
operations and activities and its agents, employees,
nurses,
interns, residents, staff, and members of the governing
board and
committees, and, whether or not such insurance is
purchased, may,
to such extent as its governing board considers
appropriate,
indemnify or agree to indemnify and hold harmless any
such person
against expense, including attorney's fees, damage,
loss, or
other liability arising out of, or claimed to have arisen
out of,
the death, disease, or injury of any person as a result of
the
negligence, malpractice, or other action or inaction of the
indemnified person while acting within the scope of
the
indemnified person's duties or engaged in activities at the
request or
direction, or for the benefit, of the hospital. Any
hospital electing to
indemnify
such persons, or to agree to so
indemnify, shall reserve such
funds as are necessary, in the
exercise of sound and prudent
actuarial judgment, to cover the
potential expense, fees, damage,
loss, or other liability. The
superintendent of insurance may
recommend, or, if such hospital
requests
the superintendent
to do so, the
superintendent shall
recommend, a specific amount for any period
that, in
the
superintendent's opinion, represents such a
judgment. This
authority is in addition to any authorization otherwise
provided
or
permitted by law. (D) Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other
collateral recovery received by the claimant. This division does
not apply to civil actions in the court of claims against a state
university or college under the circumstances described in
section
3345.40 of the Revised Code. The collateral benefits
provisions
of division (B)(2) of that section apply under those
circumstances. (E) The only defendant in original actions in the court of
claims is the state. The state may file a third-party complaint
or counterclaim in any civil action, except a civil action for
two
thousand five hundred dollars or less, that is filed in the
court
of claims. (F) A civil action against an officer or employee, as
defined in section 109.36 of the Revised Code, that alleges that
the officer's or employee's conduct was manifestly outside the
scope of
the officer's or employee's employment or official
responsibilities, or that the
officer or employee acted with
malicious purpose, in bad faith,
or in a wanton or reckless manner
shall first be filed against
the state in the court of claims,
which has exclusive, original
jurisdiction to determine,
initially, whether the officer or
employee is entitled to personal
immunity under section 9.86 of
the Revised Code and whether the
courts of common pleas have
jurisdiction over the civil action. The officer or employee may fully participate in proceedings to determine whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code. The filing of a claim against an officer or employee under
this division tolls the running of the applicable statute of
limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under
section
9.86 of the Revised Code. (G) Whenever a claim lies against an officer or employee who
is a member of
the Ohio national guard, and the officer or
employee was, at the time of the
act or omission complained of,
subject to the "Federal Tort Claims Act," 60
Stat. 842 (1946), 28
U.S.C. 2671, et seq., then the Federal Tort Claims Act is
the
exclusive remedy of the claimant and the state has no liability
under this
section. (H) If an inmate of a state correctional institution has a claim against the state for the loss of or damage to property and the amount claimed does not exceed three hundred dollars, before commencing an action against the state in the court of claims, the inmate shall file a claim for the loss or damage under the rules adopted by the director of rehabilitation and correction pursuant to this division. The inmate shall file the claim within the time allowed for commencement of a civil action under section 2743.16 of the Revised Code. If the state admits or compromises the claim, the director shall make payment from a fund designated by the director for that purpose. If the state denies the claim or does not compromise the claim at least sixty days prior to expiration of the time allowed for commencement of a civil action based upon the loss or damage under section 2743.16 of the Revised Code, the inmate may commence an action in the court of claims under this chapter to recover damages for the loss or damage. The director of rehabilitation and correction shall adopt rules pursuant to Chapter 119. of the Revised Code to implement this division.
Section 2. That existing section 2743.02 of the Revised Code is hereby repealed.
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