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As children we learn to take responsibility when we are at fault. We also learn to follow the law. So what happens when the law prevents us from doing what we might initially think is the right thing? That's what governmental immunity is all about, and practicing good government sometimes means avoiding making commitments we cannot keep.
For example: a motorist is zipping along the county road when she hits a small pile of gravel left in the roadway by a county worker, loses control of her car, and bends a fender when she comes to a bone-jarring but otherwise safe halt in the bar ditch. The county commissioner is all apologies. "We'll take care of you, ma'am. That's what we've got insurance for."
Actually, it's indemnity coverage, and yeah, that's what he's got it for — so someone else (the claims representative) can break the bad news to the motorist that she won't be compensated for her damages to her car caused by road conditions. That's governmental immunity, and though it may seem harsh, consider the alternative.
"The legislature wanted to keep the state and all the political subdivisions from paying every time a constituent encountered a pothole in the road," said Beth Bergen, TAC's Risk Management Fund manager. "If such a liability existed, government would lose its discretion in setting priorities of road maintenance with limited funds. And that's a big reason the Tort Claims Act doesn't provide for (counties) paying on these kinds of property damage claims. Otherwise, everyone who ever had a flat tire or damaged their suspension on a county road could expect a check."
Governmental immunity isn't what it once was. Texas law maintained the centuries-old complete immunity until the 1970s when the legislature provided a limited waiver to that immunity. Suddenly, counties had to buy coverage to pay for medical bills and repairs. To limit access to taxpayer dollars, however, claims such as flat tires and broken shocks caused by potholes are not allowed. The Tort Claims Act provides for compensation only when there is injury or death. Or to cite the current law, a county is liable for "personal injury and death so caused by a condition or use of tangible personal or real property...," while property dam-age is intentionally omitted from this language.
"Even when there is negligence, you've got immunity. Therefore, if you have immunity, you may never reach the issue of negligence," said Ray Cervenka, claims administrator for Barron's Risk Management Services. TAC contracts with Barron's to handle Tort Claims Act cases against county members, and Barron's makes sure that counties have all the necessary forms and phone numbers to give to claimants.
The important thing to do, Cervenka said, is contact Barron's immediately, no matter how insignificant the incident may seem. "That's one reason they're buying the coverage, so they can be protected. We handle all contact with the claimant," Cervenka said.
They'll pay only what is authorized and courteously explain the law and answer the claimant's questions. Paying only for what counties are legally liable keeps the members' contributions down.
"County officials want to help people. That's just their nature. But in times like these, they have to think with their government official's hat, not their private business hat," Bergen said.
And if a county feels an ethical obligation to fix the motorist's car? Without legal authority, a county can quickly get itself into a financial and legal corner.
"How do you decide which claims to pay and which to deny?" Bergen asked. "That's what claims adjusters like Barron's are for."