Determinations to Be Made by Court — Restrictions on Claims Against Employees — Health Care Liability — Immunity Indemnification and Insurability of Local Government Employees

1. Law
2. Tennessee Code
3. Remedies and Special Proceedings
4. Governmental Tort Liability
5. Claims Procedure
6. Determinations to Be Made by Court — Restrictions on Claims Against Employees — Health Care Liability — Immunity Indemnification and Insurability of Local Government Employees

1. The court, before holding a governmental entity liable for damages, must first determine that the employee's or employees' act or acts were negligent and the proximate cause of plaintiff's injury, that the employee or employees acted within the scope of their employment and that none of the exceptions listed in § 29-20-205 are applicable to the facts before the court.
2. No claim may be brought against an employee or judgment entered against an employee for damages for which the immunity of the governmental entity is removed by this chapter unless the claim is one for health care liability brought against a health care practitioner. No claim for health care liability may be brought against a health care practitioner or judgment entered against a health care practitioner for damages for which the governmental entity is liable under this chapter, unless the amount of damages sought or judgment entered exceeds the minimum limits set out in § 29-20-403 or the amount of insurance coverage actually carried by the governmental entity, whichever is greater, and the governmental entity is also made a party defendant to the action. As used in this subsection (b), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7.
3. No claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities in § 29-20-403, unless the act or omission was willful, malicious, criminal, or performed for personal financial gain, or unless the act or omission was one of health care liability committed by a health care practitioner and the claim is brought against such health care practitioner. As used in this subsection (c), “health care practitioner” means physicians licensed under title 63, chapter 6, and nurses licensed under title 63, chapter 7.
4. Local governmental entities shall have the right, as a matter of local option, to elect to insure or to indemnify their employees for claims for which the governmental entity is immune under this chapter arising under state or federal law upon such terms and conditions as the local government may deem appropriate; provided, that such indemnification may not exceed the limits of liability established for governmental entities in § 29-20-403 except in causes of action in which the liability of governmental employees is not limited as provided in this chapter.
5. 1. As used in this subsection (e), “volunteer” means a person who donates or volunteers that person's time or services to a local governmental entity when the donation of such time or services is at the request of the local governmental entity and under the direction of a local governmental employee.
   2. A local governmental entity may elect to insure or indemnify its volunteers for claims arising under state or federal law for which the governmental entity is immune under this chapter. Such insurance or indemnification shall be upon such terms and conditions as the local governmental entity establishes. However, no such indemnification may exceed the limits of liability established for governmental entities in § 29-20-403. The volunteer shall be liable for any amount in excess of such limits of governmental liability established in § 29-20-403.
   3. Nothing in this subsection (e) may be construed to affect the status of regular members of a voluntary or auxiliary firefighting, police or emergency assistance organization as employees of a governmental entity as provided in § 29-20-107(d), nor to impair any immunity granted to these personnel because of that status.

      [Subsection (f) repealed effective July 1, 2022. See Compiler's Note.]

6. 1. No claim may be brought against an employee or judgment entered against an employee for any loss, damage, injury, or death arising from COVID-19, as defined in § 29-34-802(a), and proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain.
   2. 1. In any claim alleging loss, damage, injury, or death arising from COVID-19 under this subsection (f), the claimant must file a verified complaint pleading specific facts with particularity from which a finder of fact could reasonably conclude that the alleged loss, damage, injury, or death was caused by the defendant's willful, malicious, or criminal act or omission, or performed for personal financial gain.
      2. In any claim alleging loss, damage, injury, or death based on exposure to or contraction of COVID-19 under this subsection (f), the claimant must also file with the verified complaint a certificate of good faith stating that the claimant or claimant's counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state, and the physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and, upon information and belief, believes that the alleged loss, damage, injury, or death was caused by an act or omission of the defendant or defendants.
   3. The failure of a claimant to satisfy the requirements of subdivisions (f)(1) and (2), if required by subdivision (f)(2), shall, upon motion, make the action subject to dismissal with prejudice.

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