CO Code § 24-10-110 (2021)
2021 Colorado Code|Title 24 - Government - State|Article 10 - Governmental Immunity|§ 24-10-110. Defense of Public Employees - Payment of Judgments or Settlements Against Public Employees

  A public entity shall be liable for:   The costs of the defense of any of its public employees, whether such defense is assumed by the public entity or handled by the legal staff of the public entity or by other counsel, in the discretion of the public entity, where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton;      The payment of all judgments and settlements of claims against any of its public employees where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton or where sovereign immunity bars the action against the public entity, if the employee does not compromise or settle the claim without the consent of the public entity; and (b) (I) The payment of all judgments and settlements of claims against any of its public employees where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton or where sovereign immunity bars the action against the public entity, if the employee does not compromise or settle the claim without the consent of the public entity; and    The payment of all judgments and settlements of claims against any of its public employees where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his or her duties and within the scope of employment, except where such act or omission is willful and wanton, even though sovereign immunity would otherwise bar the action, when the public employee is operating an emergency vehicle within the provisions of section 42-4-108 (2) and (3), C.R.S., if the employee does not compromise or settle the claim without the consent of the public entity. (1.5) Where a claim against a public employee arises out of injuries sustained from an act or omission of such employee which occurred or is alleged in the complaint to have occurred during the performance of his duties and within the scope of his employment, the public entity shall be liable for the reasonable costs of the defense and reasonable attorney fees of its public employee unless:   It is determined by a court that the injuries did not arise out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment or that the act or omission of such employee was willful and wanton. If it is so determined, the public entity may request and the court shall order such employee to reimburse the public entity for reasonable costs and reasonable attorney fees incurred in the defense of such employee; or    The public employee compromises or settles the claim without the consent of the public entity.             The provisions of subsection (1) of this section shall not apply where a public entity is not made a party defendant in an action and such public entity is not notified of the existence of such action in writing by the plaintiff or such employee within fifteen days after commencement of the action. In addition, the provisions of subsection (1) of this section shall not apply where such employee willfully and knowingly fails to notify the public entity of the incident or occurrence which led to the claim within a reasonable time after such incident or occurrence, if such incident or occurrence could reasonably have been expected to lead to a claim.    Repealed.    Where the public entity is made a codefendant with its public employee, it shall notify such employee in writing within fifteen days after the commencement of such action whether it will assume the defense of such employee. Where the public entity is not made a codefendant, it shall notify such employee whether it will assume such defense within fifteen days after receiving written notice from the public employee of the existence of such action.      In any action in which allegations are made that an act or omission of a public employee was willful and wanton, the specific factual basis of such allegations shall be stated in the complaint. (5) (a) In any action in which allegations are made that an act or omission of a public employee was willful and wanton, the specific factual basis of such allegations shall be stated in the complaint.    Failure to plead the factual basis of an allegation that an act or omission of a public employee was willful and wanton shall result in dismissal of the claim for failure to state a claim upon which relief can be granted.    In any action against a public employee in which exemplary damages are sought based on allegations that an act or omission of a public employee was willful and wanton, if the plaintiff does not substantially prevail on his claim that such act or omission was willful and wanton, the court shall award attorney fees against the plaintiff or the plaintiff's attorney or both and in favor of the public employee.       The provisions of subsection (5) of this section are in addition to and not in lieu of the provisions of article 17 of title 13, C.R.S.     Source: L. 71: p. 1207, § 1. C.R.S. 1963: § 130-11-10 . L. 79: (2) amended, p. 863, § 3, effective July 1. L. 81: (1), (3)(b)(I), and (3)(c) amended and (5) added, p. 1150, § 1, effective July 1. L. 82: (1)(b) amended, p. 366, § 1, effective January 1. L. 85, 1st Ex. Sess.: (4) amended, (1.5) added, and (3)(b) repealed, pp. 9, 11, §§ 5, 9, effective September 17. L. 86: (1)(b), IP(1.5), (1.5)(a), and (5) amended, (6) added, and (3)(a) and (3)(c) repealed, pp. 878, 882, §§ 10, 17, effective April 17. L. 92: (5) amended, p. 1117, § 5, effective July 1. L. 94: (1)(b)(II) amended, p. 2556, § 54, effective January 1, 1995.   ANNOTATION   Governmental immunity concerning municipal police officers matter of concurrent local and statewide concern. Governmental immunity for tortious acts of municipal police officers and, specifically, limitations on compensatory damages for personal injuries in actions against municipal governments, based on such tortious conduct, are matters of concurrent local and statewide concern. Frick v. Abell, 198Colo. 508, 602 P.2d 852 (1979).   A municipality may provide greater monetary compensation to the victims of torts committed by the municipality's own police officers than is provided under state statutory provisions. Frick v. Abell, 198Colo. 508, 602 P.2d 852 (1979).   State liable in 42 U.S.C. § 1983 action. In an official capacity action it is the state rather than the named party that is the interested party. Oten v. Colo. Bd. of Soc. Servs., 738 P.2d 37 (Colo. App. 1987).   Hence, the relief granted in such an action runs against the state, provided that it has received adequate notice of the suit and an opportunity to respond. Oten v. Colo. Bd. of Soc. Servs., 738 P.2d 37 (Colo. App. 1987).   Subsection (1)(a) is not a statutory exception to the corporate practice of medicine doctrine. Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357 (Colo. App. 2007).   Subsection (1.5)(a) provides for intervention as of right where public entity seeks reimbursement of reasonable attorney fees and costs advanced to a public employee later found to be acting outside of the scope of his or her employment. Once the court finds that the public employee was acting outside the scope of employment, the public entity's right to reimbursement of reasonable fees and costs is unconditional pursuant to subsection (1.5)(a). Because subsection (1.5)(a) requires that the court hearing the underlying action must award attorney fees upon request, subsection (1.5)(a) necessarily provides for intervention as of right. Lattany v. Garcia, 140 P.3d 348 (Colo. App. 2006).   Subsection (5)(c) must be strictly limited to fees incurred in defense of covered state claims only, and no award should be made under this statute for any work performed in defense of overlapping § 1983 claims absent a demonstration of entitlement to such fees under § 1988. Haynes v. City of Gunnison, 214 F. Supp. 2d 1119 (D.Colo. 2002).   <b> Public entity not liable if required notice not given. </b> If a claimant fails to give the notice required by <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar10-s24-10-109" target="_self">§ 24-10-109</a></cite>, a public entity cannot be liable under this section for a judgment against an employee in his individual capacity or for the employee's cost of his defense. Kristensen v. Jones, 195Colo. 122, 575 P.2d 854 (1978).   Employees claim for indemnification and costs barred where the underlying complaint has settled without the involvement of the state and where the state was not made a party defendant to the original action and was not notified of the existence of the action in writing within 15 days after commencement of the action. Bd. of Soc. Servs. v. Dept. of Soc. Servs., 902 P.2d 407 (Colo. App. 1994).   <b> The general assembly chose not to apply the conditions of <cite class="occo"><a href="gov.co.crs.title.42.html#t42-regulationofvehiclesandtraffic-ar04-p01-s42-4-108" target="_blank">§ 42-4-108</a></cite> (2) to the indemnification provisions of subsection (1)(b)(II) </b> of this section because <cite class="occo"><a href="gov.co.crs.title.42.html#t42-regulationofvehiclesandtraffic-ar04-p01-s42-4-108" target="_blank">§ 42-4-108</a></cite> (2) refers only to <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar10-s24-10-106" target="_self">§ 24-10-106</a></cite> (1)(a). Only when the operator's acts causing the injuries are willful and wanton is the operator personally liable. Corsentino v. Cordova, 4 P.3d 1082 (Colo. 2000).   State employees do not enjoy sovereign immunity when they are sued in their individual capacities for willful and wanton conduct, because relief is sought from the individuals themselves rather than from the state treasury. Middleton v. Hartman, 45 P.3d 721 (Colo. 2002).   The Governmental Immunity Act was intended to apply when the claimant seeks redress for injuries that result from tortious conduct. This act does not extend indemnification to defendants of their attorney fees where the plaintiff, the city and county of Denver, initiated a declaratory judgment proceeding seeking to determine only whether the defendants were obligated to respond to questions before an investigative body and where there are no claims for recovery for an injury. City and County of Denver v. Blatnik, 32 P.3d 593 (Colo. App. 2001).   The director and supervisors of a county department of social services are not public employees and are not entitled to indemnification from the state under this section when they are sued as a result of their official duties. Norton v. Gilman, 949 P.2d 565 (Colo. 1997).   University of Colorado will not be responsible for judgments against an employee who is sued in his individual and official capacity for willful and wanton acts such as malicious and intentional retaliation in employment practices. Hartman v. Regents of the Univ. of Colo., 22 P.3d 524 (Colo. App. 2000), aff'd on other grounds, 45 P.3d 721 (Colo. 2002).   Derivative constitutional immunity is not conferred upon indemnified employees by the state's possible assumption of an indemnification obligation in this section. Griess v. State of Colo., 841 F.2d 1042 (10th Cir. 1988).   The state cannot confer a derivative constitutional sovereign immunity upon its employees by assuming an obligation to indemnify them. The state's obligation to pay for defendants' defense costs derives not from the nature of plaintiff's claim, but from an entirely collateral, voluntary undertaking on the part of the state. This section is only an agreement between the state and its employees and cannot be invoked as a basis for cloaking individual officers with the state's sovereign immunity. The fact the state is required to indemnify defendants for defense costs does not turn plaintiff's claim into a claim against the state. Middleton v. Hartman, 45 P.3d 721 (Colo. 2002).   The protections afforded under the Colorado Governmental Immunity Act attach on the date the negligence is alleged to have occurred. Muniz v. Garner, 921 F. Supp. 700 (D.Colo. 1996).   Court erred in granting attorney fees pursuant to subsection (5)(c) when the claim was based upon a federal civil rights claim; attorney fees should have been based upon the standards for a claim under the federal civil rights laws not on the state statute. Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 969 P.2d 812 (Colo. App. 1998).   Attorney fees may be awarded to a defendant pursuant to subsection (5)(c) with respect to common law claims that are separate from federal civil rights claims made in the same complaint even if the defendant simultaneously is awarded mandatory attorney fees with respect to the federal civil rights claims under federal law. Such an award does not disrupt the federal statute. Meier v. McCoy, 119 P.3d 519 (Colo. App. 2004).   Nothing in § 24-10-119 indicates that a federal court cannot apply the attorney fee provision in subsection (5)(c) to state claims over which it exercises supplemental jurisdiction. Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253 (10th Cir. 1999).   Plaintiff set forth specific facts in his complaint that support his claim that public employees acted willfully and wantonly. Plaintiff met the willful component by asserting that the county sheriff and deputy sheriffs intentionally brought the media into his home to film and record his arrest. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D.Colo. 1999).   Plaintiff met the wanton component by asserting that, in bringing the media into his home, those defendants acted outrageously and knowingly disregarded his rights against trespass and invasion of privacy. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D.Colo. 1999).   Plaintiff's allegation of willful and wanton conduct by the county sheriff and deputy sheriffs was sufficient to satisfy subsection (5)(a). Therefore, those defendants sued in their individual capacities are not immune from plaintiff's state-law tort claims under the Governmental Immunity Act. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D.Colo. 1999).   Trial court erred when it concluded that complaint's factual allegations were not sufficiently specific to support a reasonable inference that doctor was consciously aware that his acts or omissions created danger or risk to patient's safety and that he acted, or failed to act, without regard to the danger or risk and that the allegations were insufficient because they were made upon "information and belief". Complaint's references to information and belief concerned information that was more accessible to defendants and complaint's allegations were sufficient to raise disputed issues of fact, making dismissal of the claims against doctor inappropriate. Gray v. Univ. of Colo. Hosp.,2012 COA 113, 284 P.3d 191.   Dismissal of defamation complaint against a public employee appropriate when allegations of willful and wanton conduct were not supported by specific factual allegations suggesting that the employee acted recklessly with respect to the consequences of such employee's actions. Wilson v. Meyer, 126 P.3d 276 (Colo. App. 2005).   Trial court did not err in awarding defendant attorney fees and costs when plaintiffs alleged willful, wanton, and outrageous conduct by the individual defendants and sought exemplary damages and when such claims were dismissed even though plaintiffs themselves filed a motion to dismiss the claim for exemplary damages and there was delay and confusion concerning which orders the court granted. Terry v. Sullivan, 58 P.3d 1098 (Colo. App. 2002).   This section and § 29-5-111 conflict regarding the reimbursement of defense costs for level I peace officers. The Governmental Immunity Act pertains to governmental employees generally, while § 29-5-111 defines the rights of police officers specifically. It is well settled that, in the event of apparent statutory conflict, specific language overrides general language. Therefore, in light of the conflict between the two statutes, § 29-5-111 takes precedence. Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000).   Denying city's motion for limited intervention to collect reimbursement for costs expended in defense of deputy sheriffs involved in a physical altercation while off-duty and not acting under color of law was error. City had statutory right to intervene in lawsuit and its request to do so was timely. Lattany v. Garcia, 140 P.3d 348 (Colo. App. 2006).   Applied in Forrest v. County Comm'rs, 629 P.2d 1105 (Colo. App. 1981); Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357 (Colo. App. 2007).