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Immunity of Receivers and Employees; Indemnification; Attorney's Fees; Approval of Settlement

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For the purposes of this Code section, the persons entitled to protection under this Code section are:
1. All receivers responsible for the conduct of a delinquency proceeding under this chapter, including present and former receivers; and
2. Their employees, meaning all present and former special deputies and assistant special deputies appointed by the Commissioner and all persons whom the Commissioner, special deputies, or assistant special deputies have employed to assist in a delinquency proceeding under this chapter. Attorneys, accountants, auditors, and other professional persons or firms who are retained by the receiver as independent contractors and their employees shall not be considered employees of the receiver for purposes of this Code section.
The receiver and his or her employees shall have official immunity and shall be immune from suit and liability, both personally and in their official capacities, for any claim for damage to or loss of property, personal injury, or other civil liability caused by or resulting from any alleged act, error, or omission of the receiver or any employee arising out of or by reason of their duties or employment, provided that nothing in this subsection shall be construed to hold the receiver or any employee immune from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of the receiver or any employee.
If any legal action is commenced against the receiver or any employee, whether against him or her personally or in his or her official capacity, alleging property damage, property loss, personal injury, or other civil liability caused by or resulting from any alleged act, error, or omission of the receiver or any employee arising out of or by reason of their duties or employment, the receiver and any employee shall be indemnified from the assets of the insurer for all expenses, attorneys' fees, judgments, settlements, decrees, or amounts due and owing or paid in satisfaction of or incurred in the defense of such legal action unless it is determined upon a final adjudication on the merits that the alleged act, error, or omission of the receiver or employee giving rise to the claim did not arise out of or by reason of his or her duties or employment or was caused by intentional or willful and wanton misconduct.
1. Attorneys' fees and any and all related expenses incurred in defending a legal action for which immunity or indemnity is available under this Code section shall be paid from the assets of the insurer, as they are incurred, in advance of the final disposition of such action upon receipt of an undertaking by or on behalf of the receiver or employee to repay the attorneys' fees and expenses if it shall ultimately be determined upon a final adjudication on the merits that the receiver or employee is not entitled to immunity or indemnity under this Code section.
2. Any indemnification for expense payments, judgments, settlements, decrees, attorneys' fees, surety bond premiums, or other amounts paid or to be paid from the insurer's assets pursuant to this Code section shall be an administrative expense of the insurer.
3. In the event of any actual or threatened litigation against a receiver or any employee for which immunity or indemnity may be available under this Code section, a reasonable amount of funds which in the judgment of the Commissioner may be needed to provide immunity or indemnity shall be segregated and reserved from the assets of the insurer as security for the payment of indemnity until such time as all applicable statutes of limitation shall have run, and all actual or threatened actions against the receiver or any employee shall have been completely and finally resolved, and all obligations of the insurer and the Commissioner under this Code section shall have been satisfied.
4. In lieu of the segregation and reserving of funds, the Commissioner may, in his or her discretion, obtain a surety bond or make other arrangements which will enable the Commissioner to fully secure the payment of all obligations under this Code section.
If any legal action against an employee for which indemnity may be available under this Code section is settled prior to final adjudication on the merits, the insurer must pay the settlement amount on behalf of the employee or indemnify the employee for the settlement amount unless the Commissioner determines:
1. That the claim did not arise out of or by reason of the employee's duties or employment; or
2. That the claim was caused by the intentional or willful and wanton misconduct of the employee.
In any legal action in which the receiver is a defendant, that portion of any settlement relating to the alleged act, error, or omission of the receiver shall be subject to the approval of the court before which the delinquency proceeding is pending. The court shall not approve that portion of the settlement if it determines:
1. That the claim did not arise out of or by reason of the receiver's duties or employment; or
2. That the claim was caused by the intentional or willful and wanton misconduct of the receiver.
Nothing contained or implied in this Code section shall operate or be construed or applied to deprive the receiver or any employee of any immunity, indemnity, benefits of law, rights, or any defense otherwise available.

(Code 1981, §33-37-8.1, enacted by Ga. L. 1996, p. 928, § 2; Ga. L. 2005, p. 60, § 33/HB 95; Ga. L. 2019, p. 386, § 133/SB 133; Ga. L. 2020, p. 493, § 33/SB 429.)

The 2019 amendment, effective July 1, 2019, substituted "subsection" for "provision" near the end of subsection (b); and substituted "Reserved." for the former provisions of subsection (h), which read: "(h)(1) Subsection (b) of this Code section shall apply to any suit based in whole or in part on any alleged act, error, or omission which takes place on or after April 15, 1996.

"(2) No legal action shall lie against the receiver or any employee based in whole or in part on any alleged act, error, or omission which took place prior to April 15, 1996, unless a suit is filed and valid service of process is obtained within 12 months after April 15, 1996.

"(3) Subsections (c), (d), (e), and (f) of this Code section shall apply to any suit which is pending on or filed after April 15, 1996, without regard to when the alleged act, error, or omission took place."

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, deleted former subsection (h) which was designated as reserved.

Law reviews.

- For review of 1996 risk-based capital legislation, see 13 Ga. St. U.L. Rev. 212 (1996).

JUDICIAL DECISIONS

Official immunity did not apply.

- In granting writs of certiorari in cases involving the liquidation of an insurance company to review the court of appeals' decision, because the official immunity provision of O.C.G.A. § 33-37-8.1 did not apply to state officers or employees sued in their official capacities, the court of appeals erred in remanding that case for the trial court to consider evidence of intentional or willful and wanton misconduct by the liquidator and the liquidator's deputies rather than simply holding that official immunity was irrelevant. State of Ga. v. International Indemnity Co., 305 Ga. 126, 823 S.E.2d 806 (2019).

In granting writs of certiorari in cases involving the liquidation of an insurance company to review the court of appeals' decision, the official immunity provision of O.C.G.A. § 33-37-8.1 had no application to the claims of the sole shareholder of the insurance company against the independent contractor hired by the receiver to assist in the liquidation as the independent contractor, as a private corporation, was plainly not covered by that provision. State of Ga. v. International Indemnity Co., 305 Ga. 126, 823 S.E.2d 806 (2019).

ARTICLE 2 PROCEDURE FOR DELINQUENCY PROCEEDING

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