Also, indemnification and defense by a government agency does not preclude a finding of official immunity. In Pletan, plaintiff sued the officer and the city for negligence, but in this case, plaintiff only sued the city, i.e. the Housing Authority. Thus, we conclude that the district court properly determined that the Housing Authority was not entitled to official immunity. Because of our determinations regarding immunity, we do not reach the non- immunity issues that the Housing Authority raises. The Housing Authority moved to strike pages 4 and 5 of respondents' brief, i.e. the argument that there is no immunity for claims arising from contractual duties, because respondents did not raise the issue below.
Respondents argue that they raised the issue by arguing negligent breach of covenant to repair.
However, that is a tort claim, not an ordinary contract claim, as is the one in the case they cite. Therefore, we grant the Housing Authority's motion and note that even if respondents' argument is true, nothing prevented them from asserting a contract claim in their complaint, or amending the complaint to add a contract claim. Affirmed and remanded.