The Vermont Statutes Online

Title 12: Court Procedure

Chapter 189: Tort Claims Against the State

• § 5601. Liability of State

  (a) The State of Vermont shall be liable for injury to persons or property or loss of life caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment, under the same circumstances, in the same manner, and to the same extent as a private person would be liable to the claimant except that the claimant shall not have the right to levy execution on any property of the State to satisfy any judgment. The Superior Courts of the State shall have exclusive jurisdiction of any actions brought hereunder.

  (b) Effective July 1, 2011, the maximum liability of the State under this section shall be $500,000.00 to any one person and the maximum aggregate liability shall be $2,000,000.00 to all persons arising out of each occurrence.

  (c) If the claimant is not a resident of the State of Vermont, the claimant may bring suit in any Superior Court. The agent for the service of process shall be the Attorney General or the Attorney General’s duly authorized representative.

  (d) This chapter does not allow any insurance carrier to bring action or recover against the State for any payments made as a result of any private insurance contract between the carrier and a State employee.

  (e) This section shall not apply to:

  (1) Any claim based upon an act or omission of an employee of the State exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a State agency or an employee of the State, whether or not the discretion involved is abused.

  (2) Any claim arising in respect to the assessment or collection of any tax or customs duty, or the levy upon or detention of any goods or merchandise by any law enforcement officer.

  (3) Any claim for damages caused by the impositions of a quarantine by the State.

  (4) Any claim for damages caused by the fiscal operations of any State officer or department.

  (5) Any claim arising out of activities of the National Guard performed pursuant to 32 U.S.C. § 316, 502, 503, 504, 505, or 709, or pursuant to 20 V.S.A. §§ 366, 601, and 602.

  (6) Any claim arising out of alleged assault, battery, abuse of process, misrepresentation, deceit, fraud, or interference with contractual rights.

  (7) Any claim for which a remedy is provided or which is governed specifically by other statutory enactment.

  (8) Any claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways.

  (f) The limitations in subsection (e) of this section do not apply to claims against the State of Vermont to the extent that there exists coverage under a policy of liability insurance purchased by the Secretary of Administration.

  (g) Nothing in this chapter waives the rights of the State under the Eleventh Amendment of the U.S. Constitution.

  (h) [Repealed.] (Added 1961, No. 265, § 1, eff. Oct. 1, 1961; amended 1963, No. 215, § 1; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1989, No. 114, § 1, eff. June 20, 1989; 1989, No. 114, § 11(b); 1989, No. 163 (Adj. Sess.), § 2; 1995, No. 60, § 41a, eff. April 25, 1995; 1995, No. 148 (Adj. Sess.), § 4(c)(2), eff. May 6, 1996; 1999, No. 138 (Adj. Sess.), § 3; 1999, No. 152 (Adj. Sess.), § 280; 2009, No. 33, § 83(f); 2011, No. 40, § 36; 2021, No. 74, § E.103.)

• § 5602. Exclusive right of action

  (a) When the act or omission of an employee of the State acting within the scope of employment is believed to have caused damage to property, injury to persons, or death, the exclusive right of action shall lie against the State of Vermont; and no such action may be maintained against the employee or the estate of the employee.

  (b) This section does not apply to gross negligence or willful misconduct.

  (c) As used in this chapter, “employee” means any person defined as a State employee by 3 V.S.A. § 1101. (Added 1961, No. 265, § 2, eff. Oct. 1, 1961; amended 1989, No. 114, § 2, eff. June 20, 1989.)

• § 5603. Settlement of claims

  (a) The Attorney General may consider, adjust, determine, and settle any claim for damages against the State of Vermont resulting from the acts or omissions of an employee as provided under 3 V.S.A. § 159. If the State elects to self-insure the liability as defined in 12 V.S.A. § 5601, the Attorney General shall consult with the Secretary of Administration prior to exercising his or her authority under this subsection.

  (b) If the State of Vermont has undertaken the defense of a claim against a State employee as required by 3 V.S.A. § 1101, the acceptance by the claimant of any award, compromise, or settlement shall be final and conclusive on the claimant and shall constitute a complete release of any claim against the State of Vermont and all of its employees.

  (c) Notwithstanding the provisions of subsection (b) of this section, if the employee has purchased a policy of liability insurance which covers claims based on gross negligence or willful misconduct in the operation of a motor vehicle, the acceptance of an award, compromise, or settlement shall not bar a claim for gross negligence or willful misconduct covered by that policy. (Added 1961, No. 265, § 3, eff. Oct. 1, 1961; amended 1963, No. 215, § 2; 1989, No. 114, § 3, eff. June 20, 1989; 1989, No. 163 (Adj. Sess.), § 3; 1995, No. 148 (Adj. Sess.), § 4(c)(2), eff. May 6, 1996; 2021, No. 74, § E.103.1.)

• § 5604. Payment

  (a) Any award made or compromise or settlement against the State of Vermont agreed upon by the Attorney General shall be paid by the State Treasurer out of the appropriations of the department concerned. In the event an award is made or a compromise or settlement is agreed upon as the result of the acts or omissions of a State employee not connected with or employed by any agency, such award shall be paid by the State Treasurer out of the Treasury, and the Emergency Board shall reimburse the State Treasurer therefor from time to time.

  (b) If the State elects to self-insure for liability as defined in 12 V.S.A. § 5601, any award, compromise, or settlement against the State of Vermont agreed to by the Attorney General shall be paid by the Treasurer from the liability self-insurance fund.

  (c) To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy. (Added 1961, No. 265, § 4, eff. Oct. 1, 1961; amended 1989, No. 114, § 4, eff. June 20, 1989; 1989, No. 163 (Adj. Sess.), § 4.)

• § 5605. Repealed. 1989, No. 114, § 11(a)(3).

• § 5606. Indemnification of employees

  (a) In any action defended by the Attorney General or the Attorney General’s designee in which a judgment is rendered against an employee of the State for acts or omissions within the scope of his or her employment, or a settlement requires payment by such a person, and the right of action is based upon 42 U.S.C. § 1983, or under a similar federal statute where State law is incapable of establishing employee immunity, the State shall indemnify the employee for the amount of the employee’s liability.

  (b) The maximum liability of the State under this section shall be $500,000.00 to any one person and the maximum aggregate liability shall be $2,000,000.00 to all persons arising out of each occurrence.

  (c) Notwithstanding subsection (a) of this section, no indemnification shall be paid:

  (1) for a judgment or settlement which results from gross negligence or willful misconduct; or

  (2) for a settlement not approved by the Attorney General or the Attorney General’s designee; or

  (3) if the employee did not ensure that the Attorney General had timely notice of the action or the employee did not cooperate in the defense of the action.

  (d) Upon certification by the Attorney General to the Commissioner of Finance and Management that an employee is eligible for indemnification under this section, the Commissioner shall issue a warrant for payment against funds available to the employee’s department or agency. If the Attorney General believes there is reasonable doubt about whether the officer or employee is eligible for indemnification, the Attorney General shall refer the matter to the Labor Relations Board which may decide the matter. The decision of the Board shall not be subject to appeal. (Added 1989, No. 114, § 5, eff. June 20, 1989; amended 1989, No. 114, § 11(b); 2011, No. 40, § 36a, eff. May 20, 2011.)