Senate Bill No. 358–Committee on Judiciary

March 10, 1999

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Referred to Committee on Judiciary

 

SUMMARY—Enacts provisions regarding manner in which civil action brought against official attorney will be defended. (BDR 3-1240)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to civil actions; enacting provisions regarding the manner in which a civil action against an official attorney will be defended; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. Chapter 41 of NRS is hereby amended by adding thereto a

1-2 new section to read as follows:

1-3 If a civil action is brought against an official attorney based on an

1-4 alleged act or omission related to his public duties or employment, and

1-5 the official attorney is the:

1-6 1. Attorney general, the attorney general shall provide written notice

1-7 of the action to the state board of examiners within 15 days after service

1-8 of a copy of the summons and complaint or other legal document

1-9 commencing the action. The board shall determine, as promptly as

1-10 possible and not later than 10 days before the date an answer or other

1-11 responsive pleading must be filed with the court, whether to authorize the

1-12 attorney general to defend this action through his office, employ special

1-13 counsel, or tender the defense to an insurer who, pursuant to a contract

1-14 of insurance, is authorized to defend the action. If the board decides to

1-15 employ special counsel, the board shall fix the compensation for special

1-16 counsel, which must be paid out of the reserve for statutory contingency

1-17 account.

1-18 2. Chief legal officer or other authorized legal representative of a

1-19 political subdivision, the chief legal officer or legal representative shall

2-1 provide written notice of the action to the governing body of the political

2-2 subdivision within 15 days after service of a copy of the summons and

2-3 complaint or other legal document commencing the action. The

2-4 governing body shall determine, as promptly as possible and not later

2-5 than 10 days before the date an answer or other responsive pleading

2-6 must be filed with the court, whether to authorize the chief legal officer

2-7 or legal representative to defend the action through his office, employ

2-8 special counsel, or tender the defense to an insurer who, pursuant to a

2-9 contract of insurance, is authorized to defend the action. If the governing

2-10 body decides to employ special counsel, the governing body shall fix the

2-11 compensation for special counsel, which must be paid by the political

2-12 subdivision.

2-13 Sec. 2. NRS 41.0338 is hereby amended to read as follows:

2-14 41.0338 As used in NRS 41.0339 to 41.0349, inclusive, and section 1

2-15 of this act, "official attorney" means:

2-16 1. The attorney general, in an action which involves a present or

2-17 former legislator, officer or employee of this state, immune contractor or

2-18 member of a state board or commission.

2-19 2. The chief legal officer or other authorized legal representative of a

2-20 political subdivision, in an action which involves a present or former

2-21 officer or employee of that political subdivision or a present or former

2-22 member of a local board or commission.

2-23 Sec. 3. NRS 41.0339 is hereby amended to read as follows:

2-24 41.0339 [The] Except under the circumstances described in section 1

2-25 of this act, the official attorney shall provide for the defense, including the

2-26 defense of cross-claims and counterclaims, of any present or former officer

2-27 or employee of the state or a political subdivision, immune contractor or

2-28 state legislator in any civil action brought against that person based on any

2-29 alleged act or omission relating to his public duties or employment if:

2-30 1. Within 15 days after service of a copy of the summons and

2-31 complaint or other legal document commencing the action, he submits a

2-32 written request for defense:

2-33 (a) To the official attorney; or

2-34 (b) If the officer, employee or immune contractor has an administrative

2-35 superior, to the administrator of his agency and the official attorney; and

2-36 2. The official attorney has determined that the act or omission on

2-37 which the action is based appears to be within the course and scope of

2-38 public duty or employment and appears to have been performed or omitted

2-39 in good faith.

2-40 Sec. 4. NRS 41.03415 is hereby amended to read as follows:

2-41 41.03415 Except under the circumstances described in section 1 of

2-42 this act:

3-1 1. The official attorney shall determine as promptly as possible

3-2 whether or not to tender the defense of the person submitting the request.

3-3 Until the decision is made, the official attorney shall take appropriate action

3-4 to defend or otherwise protect the time of the person submitting the request

3-5 to file a responsive pleading.

3-6 2. In any case in which the official attorney determines not to defend,

3-7 he shall give written notice to the person who requested the defense either:

3-8 (a) Ten days before the date an answer or other responsive pleading

3-9 must be filed with the court; or

3-10 (b) If the defense has been commenced, 20 days before the time an

3-11 application is made with the court to withdraw as the attorney of record in

3-12 accordance with NRS 41.0346.

3-13 Sec. 5. NRS 41.03435 is hereby amended to read as follows:

3-14 41.03435 [The] Except under the circumstances described in section

3-15 1 of this act, the attorney general may employ special counsel whose

3-16 compensation must be fixed by the attorney general, subject to the approval

3-17 of the state board of examiners, if the attorney general determines at any

3-18 time prior to trial that it is impracticable, uneconomical or could constitute

3-19 a conflict of interest for the legal service to be rendered by the attorney

3-20 general or a deputy attorney general. Compensation for special counsel

3-21 must be paid out of the reserve for statutory contingency account.

3-22 Sec. 6. NRS 41.0344 is hereby amended to read as follows:

3-23 41.0344 [The] Except under the circumstances described in section 1

3-24 of this act, the chief legal officer or attorney of a political subdivision may

3-25 employ special counsel whose compensation must be fixed by the

3-26 governing body of the political subdivision if he determines at any time

3-27 prior to trial that it is impracticable or could constitute a conflict of interest

3-28 for the legal services to be rendered by him. Compensation for special

3-29 counsel must be paid by the political subdivision.

3-30 Sec. 7. NRS 41.0345 is hereby amended to read as follows:

3-31 41.0345 [The] Except under the circumstances described in section 1

3-32 of this act, the official attorney may provide for the defense of any person

3-33 who is entitled to a defense from the state or political subdivision by

3-34 tendering the defense to an insurer who, pursuant to a contract of insurance,

3-35 is authorized to defend the action.

3-36 Sec. 8. NRS 41.0347 is hereby amended to read as follows:

3-37 41.0347 [If] Except under the circumstances described in section 1 of

3-38 this act, if the official attorney does not provide for the defense of a present

3-39 or former officer, employee, immune contractor, member of a board or

3-40 commission of the state or any political subdivision or of a legislator in any

3-41 civil action in which the state or political subdivision is also a named

3-42 defendant, or which was brought in a court other than a court of competent

3-43 jurisdiction of this state, and if it is judicially determined that the injuries

4-1 arose out of an act or omission of that person during the performance of

4-2 any duty within the course and scope of his public duty or employment and

4-3 that his act or omission was not wanton or malicious:

4-4 1. If the attorney general was responsible for providing the defense, the

4-5 state is liable to that person for reasonable expenses in prosecuting his own

4-6 defense, including court costs and attorney’s fees. These expenses must be

4-7 paid, upon approval by the state board of examiners, from the reserve for

4-8 statutory contingency account.

4-9 2. If the chief legal officer or attorney of a political subdivision was

4-10 responsible for providing the defense, the political subdivision is liable to

4-11 that person for reasonable expenses in carrying on his own defense,

4-12 including court costs and attorney’s fees.

4-13 Sec. 9. NRS 353.264 is hereby amended to read as follows:

4-14 353.264 1. The reserve for statutory contingency account is hereby

4-15 created in the state general fund.

4-16 2. The state board of examiners shall administer the reserve for

4-17 statutory contingency account, and the money in the account must be

4-18 expended only for:

4-19 (a) The payment of claims which are obligations of the state pursuant to

4-20 NRS 41.03435, 41.0347, 176.485, 179.310, 212.040, 212.050, 212.070,

4-21 214.040, 281.174, 282.290, 282.315, 288.203, 293.253, 293.405, 353.120,

4-22 353.262, 412.154 and 475.235 [;] and section 1 of this act;

4-23 (b) The payment of claims which are obligations of the state pursuant to:

4-24 (1) Chapter 472 of NRS arising from operations of the division of

4-25 forestry of the state department of conservation and natural resources

4-26 directly involving the protection of life and property; and

4-27 (2) NRS 7.155, 34.750, 176A.640, 178.465, 179.225, 213.153 and

4-28 293B.210,

4-29 but the claims must be approved for the respective purposes listed in this

4-30 paragraph only when the money otherwise appropriated for those purposes

4-31 has been exhausted;

4-32 (c) The payment of claims which are obligations of the state pursuant to

4-33 NRS 41.0349 and 41.037, but only to the extent that the money in the fund

4-34 for insurance premiums is insufficient to pay the claims; and

4-35 (d) The payment of claims which are obligations of the state pursuant to

4-36 NRS 535.030 arising from remedial actions taken by the state engineer

4-37 when the condition of a dam becomes dangerous to the safety of life or

4-38 property.

4-39 Sec. 10. This act becomes effective on July 1, 1999.

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