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Water Utility Liability

Water Utility Liability. Presented by: Maine Municipal Association Risk Management Services. We are not Lawyers and we are not giving legal advice. Please consult your own attorney’s and/or insurance professionals .

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Water Utility Liability

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  1. Water Utility Liability Presented by: Maine Municipal Association Risk Management Services

  2. We are not Lawyers and we are not giving legal advice. Please consult your own attorney’s and/or insurance professionals. Your coverage and/or how your company views liability may differ from this presentation

  3. Risk Management Services Program • Property and Casualty Pool • Workers Compensation Fund • Unemployment Compensation Fund • Accident Insurance for Volunteers

  4. Property and Casualty Coverage • BUILDINGS • CONTENTS • MOBILE EQUIPMENT • GENERAL LIABILITY • AUTOMOBILE • FLOOD & EARTHQUAKE • EDP (COMPUTERS) • CRIME • EQUIPMENT BREAKDOWN • PUBLIC OFFICIALS AND EMPLOYMENT PRACTICES LIABILITY

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

  6. Title 14 section 8101 §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).] Maine Tort Claims Act

  7. Liability Limits General Liability • $400,000 limit per occurrence for claims under the Maine Tort Claims Act • $1,000,000 per occurrence for claims brought outside the Maine Tort Claims Act • No Aggregate Limit Public Officials Liability • $1,000,000 per occurrence combined single limit of liability for wrongful acts • $3,000,000 aggregate limit for all wrongful acts during the coverage year

  8. Crime Coverage • Employee Dishonesty • Faithful Performance of Duty (Bonding) • Forgery & Alteration • Theft, Disappearance, or Destruction including Computer Fraud

  9. Workers Compensation Coverage Benefits Included as required by the Maine Workers Compensation Statutes: • Weekly wage replacement • Medical benefits • Rehabilitation • Death benefits

  10. Title 14 section 8101 §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).] Maine Tort Claims Act

  11. Title 30-A, Chapter 161, Sewers and Drains§3403, Proper maintenance of drains required • After a public drain has been constructed and any person has paid for connecting with it, the municipality shall maintain and keep it in repair to afford sufficient and suitable flow for all drainage entitled to pass through it. • If the municipality does not so maintain and keep it in repair, any person entitled to drainage through it may have an action against the municipality for damages sustained by the municipality's neglect. [1987, c. 737, Pt. A, §2 (new); Pt. C. §106 (new); 1989, c. 6 (amd); c. 9, §2 (amd); c. 104, Pt. C, §§8, 10 (amd).]

  12. Water Utility Statute 6310§6402 Title 35-A: PUBLIC UTILITIES HEADING: PL 1987, c. 141, Pt. A, §6 (new)Part 6: WATER HEADING: PL 1987, c. 141, Pt. A, §6 (new)Chapter 64: WATER DISTRICTS AND STANDARD DISTRICTS HEADING: PL 1995, c. 616, §10 (new) §6401. 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) .]

  13. 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 Water Utility will be removed from MTCA immunity protections.

  14. MTCA 8104-A §8104-A. Exceptions to immunity Except as specified in section 8104-B, a governmental entity is liable for property damage, bodily injury or death in 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.

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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 $10,000for 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).]

  20. 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).]

  21. 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).]

  22. 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).]

  23. For further information or assistance, please contact the RMS Department at: 1-800-590-5583 www.memun.org An RMS directory with contact names, extensions and e-mail addresses has been included in your packet.

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