ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4064
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Passed March 9, 1996; in effect ninety days from passage.]
AN ACT to amend article five, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
nineteen-d, relating to limiting the liability of boards of
education generally.
Be it enacted by the Legislature of West Virginia:
That article five, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
nineteen-d, to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-19d. Conditional immunity from liability for community
activities; liability insurance; authority of
state board of risk and insurance management.
(a)(1) If the requirements of this subsection are met, the
board of education is not liable under any theory of vicarious or
imputed liability for the acts or omissions of:
(A) Any person, organization or association using school
property for a community activity described in section nineteen of this article;
(B) Any member, employee or agent of such person,
organization or association; or
(C) Any person attending or participating in the community
activity other than an employee of the board while acting within
the scope of employment.
(2) The limitation of liability extended the board of
education pursuant to this subsection does not apply unless:
(A) The person, organization or association using school
property for a community activity has in effect, at the time of
the act or omission described in subdivision (1) of this
subsection, a contract of insurance which provides general
comprehensive liability coverage of any claim, demand, action,
suit or judgment by reason of alleged negligence or other acts
resulting in bodily injury or property damage to any person
arising out of the use of school property for a community
activity described in subdivision (1) of this subsection;
(B) The contract of insurance provides for the payment of
any attorney fees, court costs and other litigation expenses
incurred by the board in connection with any claim, demand,
action, suit or judgment arising from such alleged negligence or
other act; and
(C) The insurance coverage is in the amounts specified in
the provisions of section five-a, article twelve, chapter twenty-
nine of this code.
(3)(A) The insurance described in subdivision (2) of this
subsection may be obtained privately or may be obtained pursuant to the provisions of this subdivision. If requested by any
person, organization or association seeking such insurance
coverage, the state board of risk and insurance management is
authorized to provide such insurance and to enter into any
necessary contract of insurance to further the intent of this
subdivision.
(B) Where provided by the state board of risk and insurance
management, the cost of the insurance, as determined by the such
board, shall be paid by the person, organization or association
and may include administrative expenses. All funds received by
such board shall be deposited with the West Virginia board of
investments for investment purposes.
(C) The state board of risk and insurance management is
hereby authorized and empowered to negotiate and effect
settlement of any and all claims covered by the insurance
provided by such board pursuant to this subdivision to the extent
the board is authorized and empowered to negotiate and effect
settlement of claims described in section five, article twelve,
chapter twenty-nine of this code.
(4) As used in this subsection, "organization" or
"association" means a bona fide, not for profit, tax-exempt,
benevolent, educational, philanthropic, humane, patriotic, civic,
eleemosynary, incorporated or unincorporated association or
organization or a rescue unit or other similar volunteer
community service organization or association, but does not
include any nonprofit association or organization, whether
incorporated or not, which is organized primarily for the purposes of influencing legislation or advocating or opposing the
nomination, election or defeat of any candidate, or the passage
or defeat of any issue, thing or item to be voted upon.
(b) Nothing in this section shall affect the rights,
duties, defenses, immunities or causes of action under other
statutes or the common law of this state which may be applicable
to boards of education.