§ 153A-435. Liability insurance; damage suits against a county involving governmental functions.
Article 23.
Miscellaneous Provisions.
§ 153A‑435. Liability insurance; damage suitsagainst a county involving governmental functions.
(a) A county may contract to insure itself and any of itsofficers, agents, or employees against liability for wrongful death ornegligent or intentional damage to person or property or against absoluteliability for damage to person or property caused by an act or omission of thecounty or of any of its officers, agents, or employees when acting within thescope of their authority and the course of their employment. The board ofcommissioners shall determine what liabilities and what officers, agents, andemployees shall be covered by any insurance purchased pursuant to thissubsection.
Purchase of insurance pursuant to this subsection waives the county'sgovernmental immunity, to the extent of insurance coverage, for any act oromission occurring in the exercise of a governmental function. Participation ina local government risk pool pursuant to Article 23 of General Statute Chapter58 shall be deemed to be the purchase of insurance for the purposes of thissection. By entering into an insurance contract with the county, an insurerwaives any defense based upon the governmental immunity of the county.
If a county uses a funded reserve instead of purchasing insuranceagainst liability for wrongful death, negligence, or intentional damage topersonal property, or absolute liability for damage to person or propertycaused by an act or omission of the county or any of its officers, agents, oremployees acting within the scope of their authority and the course of theiremployment, the county board of commissioners may adopt a resolution that deemsthe creation of a funded reserve to be the same as the purchase of insuranceunder this section. Adoption of such a resolution waives the county'sgovernmental immunity only to the extent specified in the board's resolution,but in no event greater than funds available in the funded reserve for thepayment of claims.
(b) If a county has waived its governmental immunity pursuant tosubsection (a) of this section, any person, or if he dies, his personalrepresentative, sustaining damages as a result of an act or omission of thecounty or any of its officers, agents, or employees, occurring in the exerciseof a governmental function, may sue the county for recovery of damages. To theextent of the coverage of insurance purchased pursuant to subsection (a) ofthis section, governmental immunity may not be a defense to the action.Otherwise, however, the county has all defenses available to private litigantsin any action brought pursuant to this section without restriction, limitation,or other effect, whether the defense arises from common law or by virtue of astatute.
Despite the purchase of insurance as authorized by subsection (a) ofthis section, the liability of a county for acts or omissions occurring in theexercise of governmental functions does not attach unless the plaintiff waivesthe right to have all issues of law or fact relating to insurance in the actiondetermined by a jury. The judge shall hear and determine these issues withoutresort to a jury, and the jury shall be absent during any motion, argument,testimony, or announcement of findings of fact or conclusions of law relatingto these issues unless the defendant requests a jury trial on them. (1955, c. 911, s. 1; 1973, c. 822, s. 1; 1985 (Reg. Sess., 1986), c.1027, s. 27; 2003‑175, s. 2.)