Water Utility LiabilityWater Utility Liability

Presented by:Presented by:Maine Municipal AssociationMaine Municipal AssociationRisk Management ServicesRisk Management Services

We are We are not not Lawyers and we are Lawyers and we are not giving legal advice.not giving legal advice.

Please consult your own attorney’s Please consult your own attorney’s and/or insurance professionals.and/or insurance professionals.

Your coverage and/or how your company Your coverage and/or how your company views liability may differ from this views liability may differ from this presentationpresentation

Risk Management Services Program

Property and Casualty PoolProperty and Casualty PoolWorkers Compensation FundWorkers Compensation FundUnemployment Compensation FundUnemployment Compensation FundAccident Insurance for VolunteersAccident Insurance for Volunteers

Property and Casualty CoverageProperty and Casualty Coverage

BUILDINGSBUILDINGSCONTENTSCONTENTSMOBILE EQUIPMENTMOBILE EQUIPMENTGENERAL LIABILITYGENERAL LIABILITYAUTOMOBILEAUTOMOBILE

FLOOD & EARTHQUAKEFLOOD & EARTHQUAKEEDP (COMPUTERS)EDP (COMPUTERS)CRIMECRIMEEQUIPMENT BREAKDOWNEQUIPMENT BREAKDOWNPUBLIC OFFICIALS AND PUBLIC OFFICIALS AND EMPLOYMENT PRACTICES EMPLOYMENT PRACTICES LIABILITYLIABILITY

Maine Tort Claims ActMaine Tort Claims Act

The Pool coverage document has been The Pool coverage document has been crafted to take full advantage of the crafted to take full advantage of the protections afforded municipalities protections afforded municipalities and quasi-governmental entities and quasi-governmental entities through the Maine Tort Claims Act.through the Maine Tort Claims Act.

Title 14 section 8101Maine Tort Claims Act

§8103.  Immunity from suit

Except as otherwise expressly provided by statute, all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages. When immunity is removed by this chapter, any claim for damages shall be brought in accordance with the terms of this chapter. [1977, c. 578, § 1 (rpr).]

Liability Limits

General LiabilityGeneral Liability

$400,000 limit per $400,000 limit per occurrence for claims under occurrence for claims under the Maine Tort Claims Actthe Maine Tort Claims Act

$1,000,000 per occurrence $1,000,000 per occurrence for claims brought outside the for claims brought outside the Maine Tort Claims ActMaine Tort Claims Act

No Aggregate LimitNo Aggregate Limit

Public Officials LiabilityPublic Officials Liability

$1,000,000 per occurrence $1,000,000 per occurrence combined single limit of liability combined single limit of liability for wrongful actsfor wrongful acts

$3,000,000 aggregate limit for $3,000,000 aggregate limit for all wrongful acts during the all wrongful acts during the coverage yearcoverage year

Crime Coverage

Employee Dishonesty Faithful Performance of Duty (Bonding)

Forgery & AlterationTheft, Disappearance, or Destruction

including Computer Fraud

Workers Compensation Coverage

Benefits Included as required by theBenefits Included as required by the

Maine Workers Compensation Statutes:Maine Workers Compensation Statutes:

Weekly wage replacementWeekly wage replacementMedical benefitsMedical benefitsRehabilitationRehabilitationDeath benefitsDeath benefits

Title 14 section 8101Maine Tort Claims Act

§8103.  Immunity from suit

Except as otherwise expressly provided by statute, all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages. When immunity is removed by this chapter, any claim for damages shall be brought in accordance with the terms of this chapter. [1977, c. 578, § 1 (rpr).]

Title 30-A, Chapter 161, Sewers and DrainsTitle 30-A, Chapter 161, Sewers and Drains

§3403, Proper maintenance of drains required§3403, Proper maintenance of drains required

After a public drain has been constructed and any After a public drain has been constructed and any person has paid for connecting with it, the municipality person has paid for connecting with it, the municipality shall maintain and keep it in repair to afford sufficient shall maintain and keep it in repair to afford sufficient and suitable flow for all drainage entitled to pass and suitable flow for all drainage entitled to pass through itthrough it. .

If the municipality does not so maintain and keep it in If the municipality does not so maintain and keep it in repair, any person entitled to drainage through it may repair, any person entitled to drainage through it may have an action against the municipality for damages have an action against the municipality for damages sustained by the municipality's neglectsustained by the municipality's neglect..

[1987, c. 737, Pt. A, §2 (new); Pt. C. §106 (new); [1987, c. 737, Pt. A, §2 (new); Pt. C. §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C,

§§8, 10 (amd).]§§8, 10 (amd).]

Water Utility Statute6310 6402§ 35- : : 1987, . 141, . , 6 ( ) 6: Title A PUBLIC UTILITIES HEADING PL c Pt A § new Part

: 1987, . 141, . , 6 ( ) 64: WATER HEADING PL c Pt A § new Chapter WATER DISTRICTS AND : 1995, . 616, 10 ( ) 6401. ; STANDARD DISTRICTS HEADING PL c § new § Purpose scope and

; application commission authority

1. Purpose.  The purpose of this chapter, which may be known and cited as the "Standard Water District Enabling Act," is to promote consistency among the powers and authorities of water districts in this State. The intent of this chapter is to suggest standard provisions that a district formed after January 1, 1997 may consider including in its charter. Except as specifically provided in subsection 2, in recognition of the unique nature of each water district, its customers and its priorities, the suggested provisions are specifically not intended to be mandatory in nature and are not intended to apply to districts formed prior to January 1, 1997. [ 1995, c. 616, §10 (NEW) .]

Title 35-A

There is no negligence standard in the Water Utility Statute, nor is their any mechanism for awarding damages to any aggrieved party for failure to maintain or keep in good repair the water utility equipment.

Therefore, we do not believe most claims against a Therefore, we do not believe most claims against a Water Utility will be removed from MTCA immunity Water Utility will be removed from MTCA immunity protections. protections.

MTCA 8104-A§8104-A. Exceptions to immunity Except as specified in section 8104-B, a governmentalentity is liable for property damage, bodily injury or deathin the following instances. [1987, c. 740, §4 (NEW).]

A. Motor vehicle, B. Special mobile equipment C. Trailers, D. Aircraft, E. Watercraft F. Snowmobiles G. Other machinery or equipment, whether mobile or

stationary.

Further exceptions-Public Buildings

2.  .Public buildings   A governmental entity is liable for its negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building.

Further exceptions-Pollutants

3.  .Discharge of pollutants   A governmental entity is liable for its negligent acts or omissions in the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkaline, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water, but only to the extent that the discharge, dispersal, release or escape complained of is sudden and accidental.

Further exceptions-Road Construction

4.  , .Road construction street cleaning or repair   A governmental entity is liable for its negligent acts or omissions arising out of and occurring during the performance of construction, street cleaning or repair operations on any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of those ways including, but not limited to, street signs, traffic lights, parking meters and guardrails.

Further exceptions-Road Construction

A governmental entity is not liable for any defect, lack of repair or lack of sufficient railing in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway or in any appurtenance thereto.

Individual Liability

8104-D. Personal liability of employees of a governmental entity

Except as otherwise expressly provided by section 8111 or by any other law, and notwithstanding the common law, the personal liability of an employee of a governmental entity for negligent acts or omissions within the course and scope of employment shall be subject to a limit of $10,000 for any such claims arising out of a single occurrence and the employee is not liable for any amount in excess of that limit on any such claims. [1987, c. 740, §4 (NEW).]

Individual Immunity

§8111. Personal immunity for employees; procedure

1.  .Immunity   Notwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from personal civil liability for the following:

A. Undertaking or failing to undertake any legislative or quasi-legislative act, including, but not limited to, the adoption or failure to adopt any statute, charter, ordinance, order, rule, policy, resolution or resolve; [1987, c. 740, §8 (RPR).]

Individual Immunity Continued

B. Undertaking or failing to undertake any judicial or quasi-judicial act, including, but not limited to, the granting, granting with conditions, refusal to grant or revocation of any license, permit, order or other administrative approval or denial; [1987,

C. 740, §8 (RPR).]C. Performing or failing to perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which the discretionary function or duty is performed is valid; [1987, c. 740, §8 (RPR).]

Individual Immunity continued

D. Performing or failing to perform any prosecutorial function involving civil, criminal or administrative enforcement; [2001, c. 662, §7 (AMD).]

E. Any intentional act or omission within the course and scope of employment; provided that such immunity does not exist in any case in which an employee's actions are found to have been in bad faith; or [2001, c. 662, §8 (AMD).]

For further information or assistance, please contact the RMS

Department at:

1-800-590-55831-800-590-5583www.memun.org

An RMS directory with contact names, An RMS directory with contact names, extensions and e-mail addresses has extensions and e-mail addresses has been included in your packet.been included in your packet.