Actions against individual members not authorized; judgment
against or settlement by governmental entity
Sec. 5. (a) Civil actions relating to acts taken by a board, a
committee, a commission, an authority, or another instrumentality of
a governmental entity may be brought only against the board, the
committee, the commission, the authority, or the other
instrumentality of a governmental entity. A member of a board, a
committee, a commission, an authority, or another instrumentality of
a governmental entity may not be named as a party in a civil suit that
concerns the acts taken by a board, a committee, a commission, an
authority, or another instrumentality of a governmental entity where
the member was acting within the scope of the member's
employment. For the purposes of this subsection, a member of a
board, a committee, a commission, an authority, or another
instrumentality of a governmental entity is acting within the scope of
the member's employment when the member acts as a member of the
board, committee, commission, authority, or other instrumentality.
(b) A judgment rendered with respect to or a settlement made by
a governmental entity bars an action by the claimant against an
employee, including a member of a board, a committee, a
commission, an authority, or another instrumentality of a
governmental entity, whose conduct gave rise to the claim resulting
in that judgment or settlement. A lawsuit alleging that an employee
acted within the scope of the employee's employment bars an action
by the claimant against the employee personally. However, if the
governmental entity answers that the employee acted outside the
scope of the employee's employment, the plaintiff may amend the
complaint and sue the employee personally. An amendment to the
complaint by the plaintiff under this subsection must be filed not
later than one hundred eighty (180) days from the date the answer
was filed and may be filed notwithstanding the fact that the statute
of limitations has run.
(c) A lawsuit filed against an employee personally must allege
that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
(d) This subsection applies when the governmental entity defends
or has received proper legal notice and has the opportunity to defend
an employee for losses resulting from the employee's acts or
omissions. Subject to the provisions of sections 4, 14, 15, and 16 of
this chapter, the governmental entity shall pay any judgment of a
claim or suit against an employee when the act or omission causing
the loss is within the scope of the employee's employment, regardless
of whether the employee can or cannot be held personally liable for
the loss.
(e) The governmental entity shall provide counsel for and pay all
costs and fees incurred by or on behalf of an employee in defense of
a claim or suit for a loss occurring because of acts or omissions
within the scope of the employee's employment, regardless of
whether the employee can or cannot be held personally liable for the
loss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution of
the United States;
(2) consent by the state of Indiana or its employees to be sued
in any federal court; or
(3) consent to be sued in any state court beyond the boundaries
of Indiana.
As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.2;
P.L.161-2003, SEC.7.
Last modified: May 24, 2006