SB67 - Revises provisions relating to certain actions and proceedings. (BDR 3-447)

S.B. 67 - *SB67* SENATE BILL NO. 67–COMMITTEE ON JUDICIARY (ON BEHALF OF THE ATTORNEY GENERAL) PREFILED NOVEMBER 20, 2024 ____________ Referred to Committee on Judiciary SUMMARY—Revises provisions relating to certain actions and proceedings. (BDR 3-447) FISCAL NOTE: Effect on Local Government: No. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to civil actions; revising provisions governing the legal representation of certain persons by the Attorney General or the chief legal officer or authorized legal representative of a political subdivision; revising requirements relating to a special verdict form in certain actions; revising provisions governing indemnification of certain persons in certain civil actions; revising provisions governing civil liability of public employers for certain conduct of employees; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law requires the Attorney General or the chief legal officer or other 1 authorized representative of a political subdivision of this State to provide legal 2 representation for the defense of officers or employees of the State or a political 3 subdivision of the State who are named as defendants in a civil action and certain 4 other persons. Under existing law, a person who wishes to receive such services 5 must submit a written request for defense within 15 days after service of a copy of 6 the summons and complaint or other legal document commencing the action. (NRS 7 41.0339) Section 1 of this bill instead requires the submission of a written request 8 for defense within 15 days after the date on which: (1) the person receives service 9 of a copy of the summons and complaint or other legal document commencing the 10 action or waives such service; or (2) a court of competent jurisdiction enters an 11 order finding that the person was served by an alternative service method. 12 Existing law: (1) authorizes a person who submits a written request for defense 13 to employ his or her own counsel at any time after the request is submitted; and (2) 14 relieves the State or political subdivision of the State of any further duty to 15 represent the person at the time at which the person employs his or her own 16 – 2 – - *SB67* counsel. (NRS 41.03455) Section 2 of this bill eliminates language authorizing a 17 person to employ his or her own legal counsel at any time after the submission of a 18 written request for defense. Section 2 thereby: (1) authorizes a person who has not 19 submitted a written request for defense to employ his or her own counsel; and (2) 20 relieves the State or political subdivision of the State of any duty to represent a 21 person who employs his or her own counsel at the time at which the person retains 22 such counsel, regardless of whether the person has submitted a written request for 23 defense on or before that date. 24 In certain cases in which the State or a political subdivision of the State are 25 named defendants, existing law requires a court or jury of this State to return a 26 special verdict in the form of certain specific written findings. (NRS 41.0348) 27 Section 3 of this bill revises the required written findings. Section 3 also removes 28 specific language referring to a court or jury of this State, which could make the 29 special verdict requirement applicable to a case in another jurisdiction if Nevada 30 law is applied in such a case. 31 Existing law requires the State or a political subdivision of the State to 32 indemnify certain officers or employees of the State or a political subdivision of the 33 State for damages caused by any act or omission relating to the public duty or 34 employment of the person, unless an exception applies. (NRS 41.0349) Section 4 35 of this bill revises the circumstances under which the State or a political subdivision 36 of the State is exempt from the requirement to indemnify a person. Section 4 also 37 authorizes the State or a political subdivision of the State to indemnify a person 38 against liability for exemplary or punitive damages under certain circumstances. 39 Existing law generally protects a public employer from liability for harm or 40 injury caused by the conduct of a person that was outside the course and scope of 41 the public duties or employment of the person and was not reasonably foreseeable. 42 (NRS 41.03475, 41.745) Section 5 of this bill additionally protects a public 43 employer from liability for a deprivation of constitutional rights caused by the 44 conduct of an employee or officer of the public employer unless: (1) the public 45 employer was personally involved in the deprivation; or (2) a sufficient causal 46 connection exists between wrongful conduct of the public employer and the 47 deprivation. 48 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 41.0339 is hereby amended to read as follows: 1 41.0339 1. The official attorney shall provide for the defense, 2 including the defense of cross-claims and counterclaims, of any 3 present or former local judicial officer, state judicial officer, officer 4 or employee of the State or a political subdivision, immune 5 contractor or State Legislator in any civil action brought against that 6 person based on any alleged act or omission relating to the person’s 7 public duties or employment, or any other person who is named as a 8 defendant in a civil action solely because of an alleged act or 9 omission relating to the public duties or employment of a local 10 judicial officer, state judicial officer, officer or employee of the 11 State or a political subdivision, immune contractor or State 12 Legislator, if: 13 – 3 – - *SB67* (a) [Within 15 days after service of a copy of the summons and 1 complaint or other legal document commencing the action, the] The 2 person submits a written request for defense [:] within the time 3 specified in subsection 2: 4 (1) To the official attorney; or 5 (2) If the officer, employee or immune contractor has an 6 administrative superior, to the administrator of the person’s agency 7 and the official attorney; and 8 (b) The official attorney has determined that the act or omission 9 on which the action is based appears to be within the course and 10 scope of public duty or employment and appears to have been 11 performed or omitted in good faith. 12 2. Regardless of the date on which the Attorney General, 13 person designated by the Attorney General or person serving in 14 the office of administrative head of the named agency receives 15 service pursuant to subsection 2 of NRS 41.031, a written request 16 for defense pursuant to subsection 1 must be submitted to the 17 official attorney and, if applicable, the administrator of the 18 person’s agency, within 15 days after the date on which: 19 (a) The person receives service of a copy of the summons and 20 complaint or other legal document commencing the action or 21 waives such service; or 22 (b) A court of competent jurisdiction enters an order finding 23 that the person was served by an alternative service method 24 pursuant to the Nevada Rules of Civil Procedure. 25 3. If the official attorney determines that it is impracticable, 26 uneconomical or could constitute a conflict of interest for the legal 27 service to be rendered by the official attorney or a deputy of the 28 official attorney, the official attorney must employ special counsel 29 pursuant to NRS 41.03435 or 41.0344, whichever is applicable. 30 Sec. 2. NRS 41.03455 is hereby amended to read as follows: 31 41.03455 [At any time after] A person authorized to submit a 32 written request for defense [is submitted] pursuant to [the official 33 attorney, the person requesting the defense] NRS 41.0339 may 34 employ his or her own counsel to defend the action. [At that time,] 35 Upon the retention by a person of his or her own legal counsel, the 36 State or political subdivision is excused from any further duty to 37 represent [that] the person and is not liable for any expenses in 38 defending the action, including court costs and attorney’s fees. 39 Sec. 3. NRS 41.0348 is hereby amended to read as follows: 40 41.0348 In every action or proceeding in any court [of this 41 state] in which both the State or political subdivision and any 42 present or former officer, employee, immune contractor or member 43 of a board or commission thereof or any present or former State 44 Legislator are named defendants, the court or jury in rendering any 45 – 4 – - *SB67* final judgment, verdict, or other disposition shall return a special 1 verdict in the form of written findings which determine whether: 2 1. The individual defendant was acting within the scope of the 3 defendant’s public duty or employment; and 4 2. [The] Clear and convincing evidence establishes that the 5 alleged act or omission by the individual defendant [was wanton] 6 involved oppression, fraud or [malicious.] malice, express or 7 implied, as those terms are defined in NRS 42.001. 8 Sec. 4. NRS 41.0349 is hereby amended to read as follows: 9 41.0349 1. [In] Except as otherwise provided in subsection 10 2, any civil action brought against any present or former officer, 11 employee, immune contractor, member of a board or commission of 12 the State or a political subdivision or State Legislator, in which a 13 judgment is entered against the person based on any act or omission 14 relating to the person’s public duty or employment, the State or 15 political subdivision shall indemnify the person unless: 16 [1.] (a) The person failed to submit a timely request for 17 defense; 18 [2.] (b) The person failed to cooperate in good faith in the 19 defense of the action; 20 [3.] (c) The act or omission of the person was not within the 21 scope of the person’s public duty or employment [; or 22 4.] , including, without limitation, where the person was 23 terminated from employment or resigned in lieu of termination 24 based upon a determination by the State or political subdivision 25 that the act or omission was not within the scope of the person’s 26 public duty or employment; 27 (d) The person has been held criminally liable for the act or 28 omission which is the subject of the civil action; or 29 (e) The act or omission of the person [was wanton] results in 30 exemplary or [malicious.] punitive damages. 31 2. The State or political subdivision may indemnify a person 32 if: 33 (a) The exemplary or punitive damages are related to a 34 violation of state or federal law; and 35 (b) In the opinion of the official attorney: 36 (1) The act or omission upon which the damages are based 37 did not involve conscious disregard, fraud, malice or oppression, 38 as those terms are defined in NRS 42.001; 39 (2) The act or omission of the person was performed in 40 good faith; and 41 (3) Payment of the judgment or settlement is in the best 42 interest of the State or political subdivision. 43 3. Nothing in this section shall be construed to require the 44 State or political subdivision to indemnify a person against 45 – 5 – - *SB67* exemplary or punitive damages which are related to the 1 commission of a crime. 2 4. As used in this section, “official attorney” has the meaning 3 ascribed to it in NRS 41.0338. 4 Sec. 5. NRS 41.745 is hereby amended to read as follows: 5 41.745 1. An employer is not liable for harm or injury caused 6 by the intentional conduct of an employee if the conduct of the 7 employee: 8 (a) Was a truly independent venture of the employee; 9 (b) Was not committed in the course of the very task assigned to 10 the employee; and 11 (c) Was not reasonably foreseeable under the facts and 12 circumstances of the case considering the nature and scope of his or 13 her employment. 14  For the purposes of this subsection, conduct of an employee is 15 reasonably foreseeable if a person of ordinary intelligence and 16 prudence could have reasonably anticipated the conduct and the 17 probability of injury. 18 2. Nothing in this section imposes strict liability on an 19 employer for any unforeseeable intentional act of an employee. 20 3. A public employer shall not be subject to liability based 21 exclusively on a theory of respondeat superior or vicarious 22 liability. Nothing in this section shall be construed to impose 23 liability on a public employer for a deprivation of constitutional 24 rights which is caused by the conduct of an employee or officer 25 unless: 26 (a) The public employer was personally involved in the 27 deprivation; or 28 (b) A sufficient causal connection exists between wrongful 29 conduct of the public employer and the deprivation. 30 4. For the purposes of this section: 31 (a) “Employee” means any person who is employed by an 32 employer, including, without limitation, any present or former 33 officer or employee, immune contractor, an employee of a 34 university school for profoundly gifted pupils described in chapter 35 388C of NRS or a member of a board or commission or Legislator 36 in this State. 37 (b) “Employer” means any public or private employer in this 38 State, including, without limitation, the State of Nevada, a university 39 school for profoundly gifted pupils described in chapter 388C of 40 NRS, any agency of this State and any political subdivision of the 41 State. 42 (c) “Immune contractor” has the meaning ascribed to it in 43 subsection 3 of NRS 41.0307. 44 – 6 – - *SB67* (d) “Officer” has the meaning ascribed to it in subsection 4 of 1 NRS 41.0307. 2 Sec. 6. The amendatory provisions of this act apply to any 3 cause of action or claim that accrues on or after October 1, 2025. 4 H