§ 27A-71. Definitions.

The following terms, as used in this article, have the following meanings unless the context requires otherwise:

(1)

Act includes an omission or failure to act.

(2)

Administrative expenses means the expenses of administering the program, to the extent designated as such by the claims board, including but not limited to the following:

(a)

The compensation paid to any loss control or risk management consultant;

(b)

The compensation paid to any claims adjuster or any professional actuary;

(c)

The expenses of defending any claim, including (but not limited to) the following:

(i)

The compensation paid to expert witnesses;

(ii)

Attorneys' fees and expenses;

(iii)

Investigation expenses; and

(iv)

Court costs;

(d)

Any expenses incurred by the city in the course of any financing undertaken to provide funding for the fund or to repay any obligation incurred by the city in the course of such a financing; or

(e)

The cost of program insurance (including any compensation paid to brokers) that is purchased in accordance with the program ordinance.

(3)

Advertising injury means any injury to a person that results from the promotional activities of the city if such injury arises out of libel, slander, defamation, violation of right to privacy, commercial piracy, unfair competition, or infringement of copyright, title, or slogan.

(4)

Advertising injury claim means a program general liability claim in which the damages are asserted to be the result of advertising injury.

(5)

Annual period means the period of twelve (12) consecutive calendar months beginning on the effective date of the program and on each successive anniversary of the effective date of the program.

(6)

Assumed general liability claim means any plan claim for which the city, in the judgment of the claims board, is liable.

(7)

Assumed risks means the risks for which the city has assumed liability pursuant to the risk assumption ordinance.

(8)

Reserved.

(9)

Reserved.

(10)

Bodily injury means any physical harm or physical illness sustained by any individual, including a resulting death.

(11)

City means the City of Irving, Texas.

(12)

City attorney means the city attorney of the city or his designee.

(13)

City council means the city council of the city.

(14)

Claim means any claim or suit against the city (whether in its capacity as a municipal corporation or as an insurer under the Municipal Workers' Compensation Law), or any claim or suit against any plan member that the city is responsible for defending under the risk assumption ordinance, regardless of whether any damages resulting from such claim or suit are permitted under this article to be paid from the fund.

(15)

Claims adjuster means any person designated as claim adjuster as provided by section 27A-112 of this article.

(16)

Claims board means the self-insurance claims board created by section 27A-82 of this article.

(17)

Corporate general liability claim means any claim for corporate general liability damages, together with the corporate general liability expenses that result from the claim giving rise to such corporate general liability damages, but does not include a workers' compensation payment.

(18)

Corporate general liability conduct means any of the following:

(a)

Any error or omission that causes an injury;

(b)

Any conduct of the city or a plan member, acting within the course, scope and authority of his employment, office or position with the city, that:

(i)

Causes bodily injury, property damage, or regulatory injury that is not intended or expected by the actor;

(ii)

Causes advertising injury that (a) is not intended or expected by the actor, and (b) does not arise out of any statement that the actor knows is false; or

(iii)

Causes personal injury or property damage (regardless of whether intended or expected by the actor) that results from (a) the use of reasonable force for the purpose of protecting persons or property, or (b) the discharge of the actor's official duties for the city.

(19)

Corporate general liability damages means the damages for which the city, in the judgment of the claims board, is liable as a result of a claim arising from corporate general liability conduct.

(20)

Corporate general liability expenses means the court costs, pre-judgment and post-judgment interest, attorneys' fees, and any other expenses or costs for which the city, in the judgment of the claims board, is liable as a result of a claim giving rise to corporate general liability damages.

(21)

Corporate general liability risks means the risks for which the city, as a municipal corporation, may be held liable by operation of law in the course of performing its governmental or proprietary functions.

(22)

Damages means compensatory damages, punitive damages, special damages, or any other classification of damages awarded, or that lawfully may be awarded, against the city or a plan member as a result of a claim.

(23)

Department director means that individual having responsibility for the management of the department from which a claim arises.

(23a)

Deputy city manager means the deputy to the city manager responsible for the city operations.

(24)

Error or omission makes any act of a plan member, acting with the course, scope and authority of his employment, office or position with the city, that results in or constitutes an erroneous or improper discharge of such plan member's official duties for the city (including the making of an incorrect statement), but that does not constitute legally actionable fraud or an intentional or knowing breach of duty.

(25)

Excluded payment means any of the following payments:

(a)

The payment of a program claim that is not made while the program is in effect.

(b)

The payment of any program claim that is not presented to the claims board in accordance with the program ordinance.

(c)

The payment of any program claim involving damages that arise from the exercise by the city of its power of eminent domain;

(d)

The payment of all or that portion of any program claim, or of any other item for which a withdrawal from the fund or funds is permitted by section 27A-101 of this article, that, in lieu of payment from the fund, can be paid from:

(i)

The proceeds of insurance carried by the city, including (but not limited to) casualty or liability insurance, workers' compensation insurance, liquor liability ("dram shop") insurance, or property insurance;

(ii)

The proceeds of any insurance carried under any health, accident, or similar plan of benefits provided by the city;

(iii)

Any fund, reserves, or other source of payment available to the city that has been designated or otherwise set aside for such use; or

(iv)

The proceeds of any insurance, bond (including payment, performance and maintenance bonds), fund, collateral, letter of credit, indemnity or other security provided, posted or maintained by a third party at the request or for the benefit of the city.

(e)

The payment of any program general liability claim arising from an injury that results from the distribution (whether by sale, gift, or otherwise) of an alcoholic beverage, other than a distribution (i) which takes place at an activity or function that is incidental to the city's business, and (ii) for which the city is liable under applicable provisions of the Texas Alcoholic Beverage Code;

(f)

The payment of any program claim arising from an injury that results from declared or undeclared war (including civil war, insurrection, rebellion, or similar hostility) or any act or condition incident to war; or

(g)

The payment of any program claim:

(i)

In which the city's liability exists by virtue of the Texas Tort Claims Act, Chapter 101, Texas Civil Practice and Remedies Code, Vernon's Texas Codes Annotated, regardless of whether the city is a defendant, that exceeds the limits on liability applicable to the city under that statute;

(ii)

In which the city's liability exists by virtue of the Municipal Workers' Compensation Law that exceeds the limits on liability applicable to the city under that statute;

(iii)

That the city is otherwise granted immunity from paying or precluded from paying by law; or

(iv)

In an amount that exceeds any limits prescribed by the program ordinance or the risk assumption ordinance on the amounts or withdrawals that may be made from the fund to pay program claims.

(26)

Financial, insurance and risk manager means the individual having the responsibility for the management of the city's liability and workers' compensation self-insurance programs.

(27)

Funds means the liability and/or workers' compensation funds created by section 27A-85 of this article.

(28)

Fund means either the liability and/or workers' compensation funds created by 27A-85 of this article.

(29)

Funds surplus means the amount of money in the funds that is in excess of the amount that, in the opinion of a professional actuary, is required to maintain the fund on an actuarially sound basis, to the extent reasonably practicable, for the period of time and the risks of loss for which it is then funded.

(30)

Injury means any of the following injuries:

(a)

Advertising injury;

(b)

Personal injury;

(c)

Property damage;

(d)

Regulatory injury.

(31)

Law includes the federal and Texas constitutions and statutes, the city charter and ordinances, any administrative rules having the force and effect of law, and any controlling judicial decisions applicable to the city.

(32)

Municipal Workers' Compensation Law means Article 8309h, as amended, Vernon's Annotated Texas Civil Statutes.

(33)

Occurrence means an episode, an incident or series of related incidents, or an event or series of related events that results in compensable injury to one (1) or more persons.

(34)

Open seat means that member of self-insurance claims board that is held for the department director of that department from which a claim arises.

(35)

Person includes an individual, partnership, trust, or other association; corporation; or governmental entity or agency.

(36)

Personal injury means any (a) bodily injury, (b) mental harm, anguish, or illness (regardless of whether accompanied by bodily injury), (c) discrimination, (d) humiliation, (e) assault, (f) false or improper service of process, (g) false imprisonment, (h) damage to character, reputation, or integrity, (i) invasion of privacy, (j) violation of property rights, or (k) violation of civil rights.

(37)

Personal injury claim means any program general liability claim in which the damages are asserted to be the result of personal injury.

(38)

Personnel director or human resources director means the individual having the responsibility for the management of the city's personal affairs.

(39)

Plan claim means any "plan claim" as defined in the risk assumption ordinance.

(40)

Plan loss expenses means any "plan loss expenses" as defined in the risk assumption ordinance.

(41)

Plan member means any "plan member" as defined in the risk assumption ordinance.

(42)

Program means the Irving Self-Insurance and Risk Management Program established by section 27A-81 of this article.

(43)

Program claim means any:

(a)

Program general liability claim;

(b)

Workers' compensation payment; or

(c)

Amount paid or agreed to be paid, by the city pursuant to section 27A-114 of this article to compromise or settle a claim in order to avoid the risk, expense and uncertainty of litigation.

(44)

Program general liability claim means any assumed general liability claim or any corporate general liability claim.

(45)

Program insurance means any insurance (other than the self-insurance provided by the fund) that is obtained by the city pursuant to section 27A-123 of this article.

(46)

Program ordinance means the ordinance that enacted this article and any amendments hereto.

(47)

Program risks means any of the following risks:

(a)

The assumed risks;

(b)

The corporate general liability risks;

(c)

The workers' compensation risks.

(48)

Property damage means any damage to or destruction of tangible property or the loss of use of tangible property.

(49)

Property damage claim means a program general liability claim in which the damages are asserted to be the result of property damage.

(50)

Regulatory injury means any economic loss sustained by a person as a result of the performance by the city of its regulatory or property acquisition functions.

(51)

Regulatory injury claim means a program general liability claim in which the damages are asserted to be the result of regulatory injury.

(52)

Risk assumption ordinance means City Ordinance No. 5848, which establishes the City of Irving Officer and Employee Liability Plan, as from time to time amended. The aforesaid ordinance is set out in this chapter as Article V.

(53)

Reserved.

(54)

Termination date means the date on which the council terminates the program.

(55)

Workers compensation payment means any payment of compensation, benefits, expenses, or other charges for which the city, in the judgment of the claims board, is liable, as an insurer, as a result of a claim by an employee of the city or any other person pursuant to the Municipal Workers' Compensation Law.

(56)

Workers' compensation risks means the risks for which the city may be held liable under the Municipal Workers' Compensation Law.

(Ord. No. 5847, § 1(1.01), 8-23-90; Ord. No. 7348, § 1, 10-22-98)