77 Op. Att'y Gen. 145, 147 (1988)
BODILY INJURY AND PROPERTY DAMAGE LIABILITY FROM DIRECTLY OR INDIRECTLY
PROVIDING OR ASSISTING WITH PROFESSIONAL MEDICAL SERVICES
77 Op. Att'y Gen. 145, 147 (1988)
Assuming that the actor or actors do not enjoy either the governmental immunity above described or the so-called good samaritan immunity provided by section 895.48, it is my opinion that the limitations provision of section 893.80(3) would apply.
77 Op. Att'y Gen. 145, 147 (1988)
V.
77 Op. Att'y Gen. 145, 147 (1988)
LIABILITY FROM ALLEGATIONS OF LIBEL, SLANDER, DEFAMATION OF CHARACTER, FALSE IMPRISONMENT, DISCRIMINATION, SEXUAL HARASSMENT, ETC. (PERSONAL INJURY)
FROM BROADCASTING AND NON-BROADCASTING ACTIVITIES
77 Op. Att'y Gen. 145, 147 (1988)
These are allegations of intentional tort. The district itself is not subject to direct action for the intentional torts of its officers and employes. Sec. 893.80(4), Stats. However, it may be required to pay any judgment against its officers or employes. Ibrahim v. Samore
, 118 Wis. 2d 720, 348 N.W.2d 554 (1984).
77 Op. Att'y Gen. 145, 147-148 (1988)
Under circumstances where the alleged act or acts arose out of the performance of duties and in the scope of employment or, in the relatively rare case, where such acts are found to be the result of negligence rather than intent, and the defense of immunity is not available, the limitation provision of section 893.80(3) would apply. This question is further complicated by the fact that at least some of the allegations, e.g.
, sexual harassment, might rise to the level of a federal constitutional deprivation, for which no limitation would exist.
77 Op. Att'y Gen. 145, 148 (1988)
VI.
77 Op. Att'y Gen. 145, 148 (1988)
LIABILITY CLAIMS AGAINST BOARD MEMBERS AND ADMINISTRATIVE PERSONNEL FOR LOSSES OTHER THAN BODILY INJURY, PROPERTY DAMAGE OR PERSONAL INJURY (I.E.
, ALLEGATIONS OF MISMANAGEMENT OF PUBLIC FUNDS IN THE PURCHASE OF CERTAIN MATERIALS OR SUPPLIES)
77 Op. Att'y Gen. 145, 148 (1988)
Assuming that the occurrence complained of arose out of the good faith performance of duties of the board member or members in an official capacity in the scope of employment, and, if the defense of immunity was not available, then, by its terms, section 893.80(3) would be applicable.
77 Op. Att'y Gen. 145, 148 (1988)
Your opinion request contains three additional inquiries. I have rearranged their order for a logical sequence of answers.
77 Op. Att'y Gen. 145, 148 (1988)
I.
77 Op. Att'y Gen. 145, 148 (1988)
WHAT EFFECT DOES A CLAIM UNDER FEDERAL LAW HAVE UPON
THE LIMIT CONTAINED IN SECTION 893.80?
77 Op. Att'y Gen. 145, 148 (1988)
The limitations of section 893.80(3) are not applicable in a federal civil rights case, such as an action brought pursuant to 42 U.S.C.A. 1983 (1981). The damages which may be recovered in such case are unlimited. Thompson v. Village of Hales Corners
, 115 Wis. 2d 289, 340 N.W.2d 704 (1983).
77 Op. Att'y Gen. 145, 148 (1988)
II.
77 Op. Att'y Gen. 145, 148 (1988)
DOES THE PURCHASE OF INSURANCE IN AMOUNTS GREATER THAN $50,000 ACT
AS A WAIVER OF THE LIMIT AS ESTABLISHED IN SECTION 893.80?
77 Op. Att'y Gen. 145, 148-149 (1988)
No. The mere existence of a contract of insurance with limits greater than $50,000 does not constitute a waiver of the statute. Unless the policy of insurance contains an express provision prohibiting use of immunity defenses or reliance on the statutory liability limitation, there is no waiver of the provisions of section 893.80. Gonzalez v. City of Franklin
, 137 Wis. 2d 109, 403 N.W.2d 747 (1987).
77 Op. Att'y Gen. 145, 149 (1988)
III.
77 Op. Att'y Gen. 145, 149 (1988)
HOW JUDICIALLY STRONG IS SECTION 893.80 AND OTHER PROVISIONS LIMITING
RECOVERIES AGAINST GOVERNMENTAL ENTITIES AND SHOULD VTAE DISTRICTS
RELY ON THIS RATHER THAN THE PURCHASE OF THE INSURANCE?
77 Op. Att'y Gen. 145, 149 (1988)
Section 893.80 is a state statute and where applicable, it is absolute and must be given effect by the courts.
77 Op. Att'y Gen. 145, 149 (1988)
The question of the purchase of insurance by the districts is a policy decision and function of the district boards, not a legal question which I should address. Obviously, from this opinion, it is clear that among the many factors which the boards should include in their consideration, are the following:
77 Op. Att'y Gen. 145, 149 (1988)
1. The amount recoverable in actions involving the operation, ownership and use of motor vehicles is unlimited prior to May 3, 1988, and $250,000 where the cause of action arises after May 3, 1988.
77 Op. Att'y Gen. 145, 149 (1988)
2. The amount recoverable in federal civil rights actions is unlimited.
77 Op. Att'y Gen. 145, 149 (1988)
3. The district has an obligation to provide counsel and a defense for officers and employes in cases arising out of the performance of their duties in the scope of their employment, whether or not the cases have merit.
77 Op. Att'y Gen. 145, 149 (1988)
DJH:AJW
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