HOUSE DOCKET, NO. 454        FILED ON: 1/12/2009

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1522

The Commonwealth of Massachusetts

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In the Year Two Thousand Nine

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An Act to limit the liability of the MWRA..

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 372 of the acts of 1984 is hereby amended by inserting after section 72 the following section: -

Section 1 - 31.  The Authority shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any Authority employee while acting within the scope of his office or employment, including liability from the date suit is commenced and for post-judgment interest.  An "employee" of the Authority shall include elected or appointed officers, directors or employees of the Authority, whether serving full or part-time, temporary or permanent, compensated or uncompensated, and members of its advisory board and advisory committee and their staff.

The Authority shall not be liable to levy execution on any real or personal property to satisfy judgment, and shall not be liable for punitive damages or for any amount in excess of one hundred thousand dollars, exclusive of interest and costs, to each plaintiff.  Interest shall be calculated pursuant to the provisions of paragraph five of this section.  This section shall not apply to the Authority's eminent domain powers.

No Authority employee or the estate of such employee shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment; provided, however, that such employee shall provide reasonable cooperation to the Authority in the defense of any action brought under this chapter.  Failure to provide such reasonable cooperation on the part of such employee shall cause the employee to be jointly liable with the Authority, to the extent the failure to provide reasonable cooperation prejudiced the defense of the action. 

Information obtained may not be used as evidence in any disciplinary action against the employee.  Final judgment in an action brought against the Authority shall constitute a complete bar to any action by a party to such judgment against the Authority or the Authority's employee by reason of the same subject matter.

Notwithstanding that such employee shall not be liable for negligent or wrongful acts as described in the preceding paragraph, if a cause of action is improperly commenced against the Authority alleging injury or loss of property or personal injury or death as the result of the negligent or wrongful act or omission of such employee, such employee may request representation by the public attorney of the commonwealth.  The public attorney shall defend the employee with respect to the cause of action at no cost to the employee; provided, however, that the public attorney determines that the employee was acting within the scope of his office or employment at the time of the alleged loss, injury, or death, and, further, that said employee provides reasonable cooperation to the Authority and public attorney in the defense of any action arising out of the same subject matter.  If, in the opinion of the public attorney, representation of the employee, under this paragraph would result in a conflict of interest, the public attorney shall not be required to represent the Public employee.  Under said circumstances, the Authority shall reimburse the employee for reasonable attorney fees incurred by the employee in his defense of the cause of action; provided, however, that the same conditions exist which are required for representation of said employee by the public attorney under this paragraph.

Interest required to be paid under this chapter shall be calculated at an annual rate equal to the coupon issue yield equivalent, as determined by the United States secretary of the treasury, of the average accepted auction price for the last auction of 52 week United States treasury bills settled immediately prior to the date of the judgement.  The Secretary of Administration and Finance shall maintain a schedule of the rate described above.  This section shall also apply to the South Essex Sewerage District.