Chapter 99-D: Defense and Indemnification of State Officers and Employees

It is the intent of this chapter to protect state officers, trustees, officials, employees, and members of the general court who are subject to claims and civil actions arising from acts committed within the scope of their official duty while in the course of their employment for the state and not in a wanton or reckless manner. It is not intended to create a new remedy for injured persons or to waive the state's sovereign immunity which is extended by law to state officers, trustees, officials, and employees. The doctrine of sovereign immunity of the state, and by the extension of that doctrine, the official immunity of officers, trustees, officials, or employees of the state or any agency thereof acting within the scope of official duty and not in a wanton or reckless manner, except as otherwise expressly provided by statute, is hereby adopted as the law of the state. The immunity of the state's officers, trustees, officials, and employees as set forth herein shall be applicable to all claims and civil actions, which claims or actions arise against such officers, trustees, officials, and employees in their personal capacity or official capacity, or both such capacities, from acts or omissions within the scope of their official duty while in the course of their employment for the state and not in a wanton or reckless manner.

If any claim is made or any civil action is commenced against a present or former officer, trustee, official, or employee of the state or any agency thereof, including members of the New Hampshire national guard and any justice of the district, municipal, probate, superior, or supreme court, or the clerks or bail commissioners thereof, or any harbor master appointed by the Pease development authority, division of ports and harbors, or officials and employees of the New Hampshire housing finance authority, or directors, officers, and employees of the Pease development authority, members and employees of the lakeshore redevelopment planning commission, or directors, officers, and employees of the land and community heritage investment authority seeking equitable relief or claiming damages for the negligent or wrongful acts and the officer, trustee, official, or employee requests the state to provide representation for him or her, and the attorney general, or, in the case of a claim or civil action commenced against the attorney general, the governor and council, determines that the acts complained of were committed by the officer, trustee, official, or employee while acting within the scope of official duty for the state and that such acts were not wanton or reckless, the attorney general shall represent and defend such person with respect to such claim or throughout such action, or shall retain outside counsel to represent or defend such person, and the state shall defray all costs of such representation or defense, to be paid from funds not otherwise appropriated. In such case the state shall also protect, indemnify, and hold harmless such person from any costs, damages, awards, judgments, or settlements arising from the claim or suit. The attorney general or governor and council shall not be required to consider the request of such person that representation be provided for him or her unless within 7 days of the time such person is served with any summons, complaint, process, notice, demand, or pleading the person shall deliver the original or a copy thereof to the attorney general or, in the case of an action against the attorney general, to the governor and council. As a condition to the continued representation by the attorney general and to the obligation of the state to indemnify and hold harmless, such officer, trustee, official, or employee shall cooperate with the attorney general in the defense of such claim or civil action. No property either real or personal of the state of New Hampshire shall be subject to attachment or execution to secure payment of or to satisfy any obligations of the state created under this chapter. Upon the entry of final judgment in any action brought under this chapter, the governor shall draw a warrant for said payment out of any money in the treasury not otherwise appropriated, and said sums are hereby appropriated. The attorney general shall have the authority to settle any claim brought under this chapter by compromise and the amount of any such settlement shall be paid as if the amount were awarded as a judgment under this chapter. Indemnification by the state under this section shall be for the actual amount of costs, damages, awards, judgments, or settlements personally incurred by any such officer, trustee, official, or employee, and the state shall not pay any amounts for which payment is the obligation of any insurance carrier or company under a policy or policies of insurance or any other third party under a similar obligation.

For the purposes of RSA 99-D:2, the term "official duty" shall, in the case of a legislator, mean any duty or action taken in committee or in sessions of the general court or in such other forum where the legislator appears at the request of the house, senate or presiding officer of either body. It shall also include any other act for which immunity is granted under the provisions of RSA 541-B:19. Nothing in this section shall be construed to waive any immunity applicable to the legislator or the actions complained of, including those set forth in RSA 541-B:19, and all other provisions of RSA 99-D:2 shall apply.

The state, or any department or agency thereof, shall self-insure against all such damages, losses, and expenses except to the extent that insurance coverage is obtained under the authority of RSA 9:27.

Any determination by the attorney general or governor and council pursuant to RSA 99-D:2 shall not be admissible as evidence in the trial of any such action or claim.

Nothing contained in this chapter shall be construed to deprive any such person of his right to select and be represented by private counsel of his own choice at his own expense.

Nothing contained in this chapter shall be construed or held to constitute a waiver of any defense otherwise available against the claim.

Appeal from denial of representation by the attorney general as provided in RSA 99-D:2 shall be available to any officer, trustee, official or employee who is so denied. Such appeal shall be by petition to the governor and council.

I. Without otherwise limiting or defining the sovereign immunity of the state and its agencies, this chapter shall apply to all claims against any nonprofit entity, or any employee, trustee, or director of such nonprofit entity when acting in the scope of such person's elected or appointed capacity and not in a wanton or reckless manner, arising out of clinical services provided in accordance with any contract entered into by the department of health and human services for the clinical operation and administration of the New Hampshire hospital pursuant to RSA 135-C:3 and RSA 135-C:4 or, at the discretion of the commissioner of the department of health and human services, any other public health or clinical service provided to the department.

II. This section shall apply only to claims or civil actions arising out of incidents occurring on or after July 1, 1988.

III. [Repealed.]

IV. [Repealed.]

I. Without otherwise limiting or defining the sovereign immunity of the state and its agencies, this chapter shall apply to all claims against any nonprofit entity, or any employee, trustee, or director of such nonprofit entity when acting in the scope of such person's elected or appointed capacity and not in a wanton or reckless manner, arising out of clinical services of psychiatrists, other medical doctors, or psychiatric/mental health nurse practitioners provided in accordance with any contract limited to such services entered into by the department of corrections.

II. This section shall apply only to claims or civil actions arising out of incidents occurring after the effective date of this section.

III. [Repealed.]

I. Without otherwise limiting or defining the sovereign immunity of the state and its agencies, this chapter shall apply to all complaints filed with or investigations by a professional licensing board, committee, or regulatory agency against any state officer, trustee, official, employee, member of the general court, or other person identified in RSA 99-D:2 when acting in the scope of such person's official elected, appointed, or state employment duty and not in a wanton or reckless manner.

II. This section shall apply only to complaints or investigations arising out of incidents occurring on or after July 1, 2013.