27-1-731. Individual immunity for and indemnification of ditch company employees -- definitions. (1) As used in this section:
     (a) "ditch company" means a private, not-for-profit irrigation ditch or water user cooperative, corporation, association, or organization;
     (b) "employee" means a director, officer, or employee of a ditch company.
     (2) An employee of a ditch company is not individually liable for actions and omissions within the course and scope of the employee's employment or position, except as provided in subsection (6). The immunity granted by this subsection does not apply to the liability of a not-for-profit cooperative, corporation, association, or organization.
     (3) Upon receiving service of a summons and complaint in an action against the employee, the employee shall give written notice to the employee's supervisor requesting that a defense to the action be provided by the ditch company. If the employee does not have a supervisor, the employee shall give notice of the action to the attorney of the ditch company defending legal actions of that type. Except as provided in subsection (6), the ditch company shall offer a defense to the action on behalf of the employee. The defense may consist of a defense provided directly by the ditch company. The ditch company shall notify the employee, within 15 days after receipt of notice, whether a direct defense will be provided. If the ditch company refuses or is unable to provide a direct defense, the employee may retain other counsel. Except as provided in subsection (6), the ditch company shall pay all expenses relating to the retained defense and pay any judgment for damages entered in the action that may otherwise be payable under this section.
     (4) The employee must be indemnified by the ditch company for any money judgments or legal expenses, including attorney fees either incurred by the employee or awarded to the claimant, or both, to which the employee may be subject as a result of the suit unless the employee's conduct falls within the exclusions provided in subsection (6).
     (5) Recovery against a ditch company is a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error, or omission or other actionable conduct gave rise to the claim. In an action against a ditch company, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the ditch company acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee's employment unless the claim constitutes an exclusion provided in subsections (6)(b) through (6)(d).
     (6) The employee may not be defended or indemnified by the ditch company for any money judgments or legal expenses, including attorney fees, to which the employee may be subject as a result of the suit if a judicial determination is made that:
     (a) the conduct upon which the claim is based constitutes oppression, fraud, or malice or for any other reason does not arise out of the course and scope of the employee's employment or position;
     (b) the conduct of the employee is a criminal offense as defined in Title 45, chapters 4 through 7;
     (c) the employee compromised or settled the claim without the consent of the ditch company; or
     (d) the employee failed or refused to cooperate reasonably in the defense of the case.
     (7) If a judicial determination has not been made applying the exclusions provided in subsection (6), the ditch company may determine whether those exclusions apply. However, if there is a dispute as to whether the exclusions of subsection (6) apply and the ditch company concludes it should clarify its obligation to the employee arising under this section by commencing a declaratory judgment action or other legal action, the ditch company is obligated to provide a defense or assume the cost of the defense of the employee until a final judgment is rendered in the action holding that the ditch company had no obligation to defend the employee. The ditch company has no obligation to provide a defense to the employee in a declaratory judgment action or other legal action brought against the employee by the ditch company under this subsection.

     History: En. Sec. 1, Ch. 397, L. 1987; amd. Sec. 590, Ch. 56, L. 2009.