§ 205-G — Defense and indemnification of volunteer firefighters

§ 205-g. Defense and indemnification of volunteer firefighters. 1. As\nused in this section:\n a. "Volunteer firefighter" means an active member of a fire company.\n b. "Fire company" means: (i) A fire company of a city, town, village\nor fire district fire department, whether or not any such company has\nbeen incorporated under any general or special law,\n (ii) A fire corporation incorporated under or subject to the\nprovisions of article ten of the not-for-profit corporation law, which\nis not included within subparagraph (i) of this paragraph, if such\ncorporation is, by law, under the general control of, or recognized as a\nfire corporation by, the governing board of a city, town, village or\nfire district; or\n (iii) A fire corporation incorporated under, or established pursuant\nto the provision of, any general or special law, which is not included\nwithin subparagraphs (i) or (ii) of this paragraph, if such corporation\nis, by law, under the general control of, or recognized as a fire\ncorporation by, the governing board of a city, town, village or fire\ndistrict or Indian reservation. A "fire department" may be composed of\none or more fire companies.\n c. "Line of duty" means the performance by a volunteer firefighter of\nthe duties and activities described in subdivision one of section five\nof the volunteer firefighters' benefit law and the same such duties and\nactivities performed for a specialized team established pursuant to the\nprovisions of section two hundred nine-bb of this article for which the\nvolunteer firefighter does not receive any remuneration or a gratuity\nand shall be deemed to include any date of injury as determined by the\nworkers' compensation board pursuant to the provisions of section\nforty-one of the volunteer firefighters' benefit law. The following\nshall not be deemed to be remuneration or a gratuity: reimbursement of\nexpenses for meals, lodging and actual and necessary travel; the receipt\nof a mileage allowance in lieu of travel expense; reimbursement of\nexpenses for registration and tuition fees payable under section\nseventy-two-g of this chapter, the acceptance of transportation, food,\ndrink, shelter, clothing and similar items while on duty or engaged in\nsuch activities; and receipt of a training stipend as outlined in\nsection two hundred-aa of this article.\n d. "Public entity" means the city, town, village or fire district\nhaving general control of the fire company.\n 2. The public entity shall provide for the defense of the volunteer\nfirefighter in any civil action or proceeding, state or federal, arising\nout of any alleged act or omission which occurred or allegedly occurred\nwhile the volunteer firefighter was acting in the line of duty if the\nvolunteer firefighter is in compliance with the provisions of\nsubdivision seven of this section. This duty to provide for a defense\nshall not arise where such civil action or proceeding is brought by or\nat the behest of the public entity.\n 3. Subject to the conditions set forth in subdivision two of this\nsection, the volunteer firefighter shall be entitled to be represented\nby private counsel of his or her choice in any civil action or\nproceeding whenever the chief legal officer of the public entity or\nother counsel designated by the public entity determines that a conflict\nof interest exists, or whenever a court, upon appropriate motion or\notherwise by a special proceeding, determines that a conflict of\ninterest exists and that the volunteer firefighter is entitled to be\nrepresented by counsel of his or her choice, provided, however, that the\nchief legal officer or other counsel designated by the public entity may\nrequire, as a condition to payment of the fees and expenses of such\nrepresentation, that appropriate groups of such volunteer firefighters\nbe represented by the same counsel. Reasonable attorneys' fees and\nlitigation expenses shall be paid by the public entity to such private\ncounsel from time to time during the pendency of the civil action or\nproceeding with the approval of the governing body of the public entity.\n 4. Any dispute with respect to representation of multiple volunteer\nfirefighters by a single counsel or the amount of litigation expenses or\nthe reasonableness of attorneys' fees shall be resolved by the court\nupon motion or by way of a special proceeding.\n 5. Where the volunteer firefighter delivers process and a written\nrequest for a defense to the public entity under subdivision seven of\nthis section, the public entity shall take the necessary steps on behalf\nof the volunteer firefighter to avoid entry of a default judgment\npending resolution of any question pertaining to the obligation to\nprovide for a defense.\n 6. a. The public entity shall indemnify and save harmless its\nvolunteer firefighters in the amount of any judgment obtained against\nsuch volunteer firefighters in a state or federal court, or in the\namount of any settlement of a claim, provided that the act or omission\nfrom which such judgment or claim arose occurred while the volunteer\nfirefighter was acting in the line of duty; provided further that in the\ncase of a settlement the duty to indemnify and save harmless shall be\nconditioned upon the approval of the amount of settlement by the\ngoverning body of the public entity.\n b. The duty to indemnify and save harmless shall be construed in the\nsame manner as provided in section two hundred five-b of this article.\n c. Nothing in this subdivision shall authorize a public entity to\nindemnify or save harmless a volunteer firefighter with respect to\npunitive or exemplary damages, fines or penalties, or money recovered\nfrom a volunteer firefighter pursuant to section fifty-one of this\nchapter; provided, however, that the public entity shall indemnify and\nsave harmless its volunteer firefighters in the amount of any costs,\nattorneys' fees, damages, fines or penalties which may be imposed by\nreason of an adjudication that a volunteer firefighter, acting in the\nline of duty, has, without willfulness or intent on his or her part,\nviolated a prior order, judgment, consent decree or stipulation of\nsettlement entered in any court of this state or of the United States.\n d. Upon entry of a final judgment against the volunteer firefighter,\nor upon the settlement of the claim, the volunteer firefighter shall\nserve a copy of such judgment or settlement, personally or by certified\nor registered mail within thirty days of the date of entry or\nsettlement, upon the chief administrative officer of the public entity;\nand if not inconsistent with the provisions of this section, the amount\nof such judgment or settlement shall be paid by the public entity.\n 7. The duty to defend or indemnify and save harmless prescribed by\nthis section shall be conditioned upon:\n a. delivery by the volunteer firefighter to the chief legal officer of\nthe public entity or to its chief administrative officer of a written\nrequest to provide for his or her defense together with the original or\na copy of any summons, complaint, process, notice, demand or pleading\nwithin ten days after he or she is served with such document;\n b. the full cooperation of the volunteer firefighter in the defense of\nsuch action or proceeding and in defense of any action or proceeding\nagainst the public entity based upon the same act or omission, and in\nthe prosecution of any appeal; and\n c. the volunteer firefighter maintaining at least the minimum level of\ntraining required by the public entity.\n 8. The benefits of this section shall inure only to volunteer\nfirefighters as defined in this section and shall not enlarge or\ndiminish the rights of any other party nor shall any provision of this\nsection be construed to affect, alter or repeal any provision of the\nworkers' compensation law or volunteer firefighters' benefit law.\n 9. This section shall not in any way affect the obligation of any\nclaimant to give notice to the public entity under section ten of the\ncourt of claims act, section fifty-e of this chapter, or any other\nprovision of law.\n 10. Any public entity is hereby authorized and empowered to purchase\ninsurance from any insurance company created by or under the laws of\nthis state, or authorized by law to transact business in this state,\nagainst any liability imposed by the provisions of this section, or to\nact as a self-insurer with respect thereto.\n 11. All payments made under the terms of this section, whether for\ninsurance or otherwise, shall be deemed to be for a public purpose and\nshall be audited and paid in the same manner as other public charges.\n 12. The provisions of this section shall not be construed to impair,\nalter, limit or modify the rights and obligations of any insurer under\nany policy of insurance.\n 13. Except as otherwise specifically provided in this section, the\nprovisions of this section shall not be construed in any way to impair,\nalter, limit, modify, abrogate or restrict any immunity to liability\navailable to or conferred upon any unit, entity, officer or volunteer\nfirefighter of any public entity by, in accordance with, or by reason\nof, any other provision of state or federal statutory or common law.\n