§ 34-13-3-5 — Actions against individual members not authorized; judgment against or settlement by governmental entity

(a) Civil actions relating to acts taken by a
board, a committee, a commission, an authority, or another
instrumentality of a governmental entity may be brought only against
the board, the committee, the commission, the authority, or the other
instrumentality of a governmental entity. A member of a board, a
committee, a commission, an authority, or another instrumentality of
a governmental entity may not be named as a party in a civil suit that
concerns the acts taken by a board, a committee, a commission, an
authority, or another instrumentality of a governmental entity where the
member was acting within the scope of the member's employment. For
the purposes of this subsection, a member of a board, a committee, a
commission, an authority, or another instrumentality of a governmental
entity is acting within the scope of the member's employment when the
member acts as a member of the board, committee, commission,
authority, or other instrumentality.
(b) A judgment rendered with respect to or a settlement made by a
governmental entity bars an action by the claimant against an
employee, including a member of a board, a committee, a commission,
an authority, or another instrumentality of a governmental entity, whose
conduct gave rise to the claim resulting in that judgment or settlement.
A lawsuit alleging that an employee acted within the scope of the
employee's employment bars an action by the claimant against the
employee personally. However, if the governmental entity answers that
the employee acted outside the scope of the employee's employment,
the plaintiff may amend the complaint and sue the employee
personally. An amendment to the complaint by the plaintiff under this
subsection must be filed not later than one hundred eighty (180) days
from the date the answer was filed and may be filed notwithstanding
the fact that the statute of limitations has run.
(c) A lawsuit filed against an employee personally must allege that
an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee's employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the
allegations.
(d) This subsection applies when the governmental entity defends
or has received proper legal notice and has the opportunity to defend
an employee for losses resulting from the employee's acts or omissions.
Subject to the provisions of sections 4, 14, 15, and 16 of this chapter,
the governmental entity shall pay any judgment of a claim or suit
against an employee when the act or omission causing the loss is within
the scope of the employee's employment, regardless of whether the
employee can or cannot be held personally liable for the loss.
(e) The governmental entity shall provide counsel for and pay all
costs and fees incurred by or on behalf of an employee in defense of a
claim or suit for a loss occurring because of acts or omissions within
the scope of the employee's employment, regardless of whether the
employee can or cannot be held personally liable for the loss.
(f) This chapter shall not be construed as:
(1) a waiver of the eleventh amendment to the Constitution of the
United States;
(2) consent by the state of Indiana or its employees to be sued in
any federal court; or
(3) consent to be sued in any state court beyond the boundaries of
Indiana.
[Pre-1998 Recodification Citation: 34-4-16.5-5.]

Legislative History

As added by P.L.1-1998, SEC.8. Amended by P.L.192-2001, SEC.2; P.L.161-2003, SEC.7.