Tennessee § 29-20-310 - Determinations to be made by court — Restrictions on claims against employees — Health care liability — Immunity indemnification and insurability of local government employees.

§ 29-20-310. Determinations to be made by court — Restrictions on claims against employees — Health care liability — Immunity indemnification and insurability of local government employees.

The court, before holding a governmental entity liable for damages, must first determine that the employee's or employees' act or acts were negligent and the proximate cause of plaintiff's injury, that the employee or employees acted within the scope of their employment and that none of the exceptions listed in § 29-20-205 are applicable to the facts before the court. No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for health care liability brought against a health care practitioner. No claim for health care liability may be brought against a health care practitioner or judgment entered against a health care practitioner for damages for which the governmental entity is liable under this chapter, unless the amount of damages sought or judgment entered exceeds the minimum limits set out in § 29-20-403 or the amount of insurance coverage actually carried by the governmental entity, whichever is greater, and the governmental entity is also made a party defendant to the action. As used in this subsection (b), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7. No claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities in § 29-20-403, unless the act or omission was willful, malicious, criminal, or performed for personal financial gain, or unless the act or omission was one of health care liability committed by a health care practitioner and the claim is brought against such health care practitioner. As used in this subsection (c), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7. Local governmental entities shall have the right, as a matter of local option, to elect to insure or to indemnify their employees for claims for which the governmental entity is immune under this chapter arising under state or federal law upon such terms and conditions as the local government may deem appropriate; provided, that such indemnification may not exceed the limits of liability established for governmental entities in § 29-20-403 except in causes of action in which the liability of governmental employees is not limited as provided in this chapter. As used in this subsection (e), “volunteer” means a person who donates or volunteers that person's time or services to a local governmental entity when the donation of such time or services is at the request of the local governmental entity and under the direction of a local governmental employee. A local governmental entity may elect to insure or indemnify its volunteers for claims arising under state or federal law for which the governmental entity is immune under this chapter. Such insurance or indemnification shall be upon such terms and conditions as the local governmental entity establishes. However, no such indemnification may exceed the limits of liability established for governmental entities in § 29-20-403. The volunteer shall be liable for any amount in excess of such limits of governmental liability established in § 29-20-403. Nothing in this subsection (e) may be construed to affect the status of regular members of a voluntary or auxiliary firefighting, police or emergency assistance organization as employees of a governmental entity as provided in § 29-20-107(d), nor to impair any immunity granted to these personnel because of that status. [Subsection (f) repealed effective July 1, 2022. See Compiler's Note.] No claim may be brought against an employee or judgment entered against an employee for any loss, damage, injury, or death arising from COVID-19, as defined in § 29-34-802(a), and proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain. In any claim alleging loss, damage, injury, or death arising from COVID-19 under this subsection (f), the claimant must file a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the alleged loss, damage, injury, or death was caused by the defendant's willful, malicious, or criminal act or omission, or performed for personal financial gain. In any claim alleging loss, damage, injury, or death based on exposure to or contraction of COVID-19 under this subsection (f), the claimant must also file with the verified complaint a certificate of good faith stating that the claimant or claimant's counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state, and the physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and, upon information and belief, believes that the alleged loss, damage, injury, or death was caused by an act or omission of the defendant or defendants. The failure of a claimant to satisfy the requirements of subdivisions (f)(1) and (2), if required by subdivision (f)(2), shall, upon motion, make the action subject to dismissal with prejudice. Acts 1973, ch. 345, § 20; T.C.A., § 23-3322; Acts 1987, ch. 405, §§ 1, 2; 1993, ch. 406, § 1; 1996, ch. 957, § 1; 2001, ch. 419, § 1; 2012, ch. 798, § 6; 2020 (2nd Ex. Sess.), ch. 1, § 3. Compiler's Notes. Acts 2001, ch. 419, § 2, provided that the amendment to this section would not take effect unless House Bill No. 1184/Senate Bill No. 1347, relating to governmental tort liability limits was also enacted and became effective. House Bill No. 1184/Senate Bill No. 1347 was enacted as Acts 2001, ch. 424, effective July 1, 2001. Acts 2020 (2nd Ex. Sess.), ch. 1, § 7 provided: “(a) This act shall take effect upon becoming a law, the public welfare requiring it, and unless otherwise prohibited by the United States or Tennessee Constitution, this act applies to all claims arising from COVID-19 except those in which, on or before August 3, 2020: “(1) A complaint or civil warrant was filed; “(2) Notice of a claim was given pursuant to § 9-8-402 ; or “(3) Notice was satisfied pursuant to § 29-26-121(a)(3) . “(b) This act is repealed on July 1, 2022, but continues to apply to any loss, illness, injury, or death occurring before that date to which none of the exceptions listed in subdivisions (a)(1)-(3) apply.” Amendments. The 2012 amendment substituted “health care liability” for “medical malpractice” in the first two sentences of (b) and in the first sentence of (c). The 2020 (2nd Ex. Sess.) amendment by ch. 1 added (f). Effective Dates. Acts 2012, ch. 798, § 59. April 23, 2012. Acts 2020 (2nd Ex. Sess.), ch. 1, § 7. August 17, 2020. Cross-References. Governmental tort liability limits, § 29-20-403 . Textbooks. Tennessee Jurisprudence, 19 Tenn. Juris., Municipal Corporations, §§ 81, 84; 22 Tenn. Juris., State, § 14. Attorney General Opinions. Liability of district public guardians, OAG 88-18 (1/19/88). Defense of substitute judge designated by Supreme Court, OAG 97-004 (1/24/97). Claims against general sessions judge for conduct while sitting by interchange, OAG 97-005 (1/24/97). Liability of state, district attorney general and special prosecutor, OAG 99-173 (9/7/99). Personal immunity of emergency medical technicians and paramedics from tort suits, OAG 03-093 (7/28/03). Cited: Security Fire Protection Co. v. Ripley, 608 S.W.2d 874, 1980 Tenn. App. LEXIS 399 (Tenn. Ct. App. 1980); Cates v. Electric Power Bd., 655 S.W.2d 166, 1983 Tenn. App. LEXIS 708 (Tenn. Ct. App. 1983); Kennedy v. Perry, 688 S.W.2d 74, 1984 Tenn. App. LEXIS 3308 (Tenn. Ct. App. 1984); Jenkins v. Loudon County, 736 S.W.2d 603, 1987 Tenn. LEXIS 1084 (Tenn. 1987); Corder v. Metropolitan Gov't of Nashville, 852 S.W.2d 910, 1992 Tenn. App. LEXIS 1016 (Tenn. Ct. App. 1992); Braswell v. Carothers, 863 S.W.2d 722, 1993 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1993); Spurlock v. Whitley, 971 F. Supp. 1166, 1997 U.S. Dist. LEXIS 10464 (M.D. Tenn. 1997); Conroy v. City of Dickson, 49 S.W.3d 868, 2001 Tenn. App. LEXIS 110 (Tenn. Ct. App. 2001); Pinnix v. Pollock, 338 F. Supp. 2d 885, 2004 U.S. Dist. LEXIS 20521 (W.D. Tenn. 2004); Autry v. Hooker, 304 S.W.3d 356, 2009 Tenn. App. LEXIS 223 (Tenn. Ct. App. May 15, 2009); Cook v. E. Tenn. Human Res. Agency, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 137 (Tenn. Ct. App. Feb. 27, 2013).