N.Y. General Municipal Law § 205-g: Defense and indemnification of volunteer firefighters

§ 205-g. Defense and indemnification of volunteer firefighters. 1. As

used in this section:

a. "Volunteer firefighter" means an active member of a fire company.

b. "Fire company" means: (i) A fire company of a city, town, village

or fire district fire department, whether or not any such company has

been incorporated under any general or special law,

(ii) A fire corporation incorporated under or subject to the

provisions of article ten of the not-for-profit corporation law, which

is not included within subparagraph (i) of this paragraph, if such

corporation is, by law, under the general control of, or recognized as a

fire corporation by, the governing board of a city, town, village or

fire district; or

(iii) A fire corporation incorporated under, or established pursuant

to the provision of, any general or special law, which is not included

within subparagraphs (i) or (ii) of this paragraph, if such corporation

is, by law, under the general control of, or recognized as a fire

corporation by, the governing board of a city, town, village or fire

district or Indian reservation. A "fire department" may be composed of

one or more fire companies.

c. "Line of duty" means the performance by a volunteer firefighter of

the duties and activities described in subdivision one of section five

of the volunteer firefighters' benefit law and the same such duties and

activities performed for a specialized team established pursuant to the

provisions of section two hundred nine-bb of this article for which the

volunteer firefighter does not receive any remuneration or a gratuity

and shall be deemed to include any date of injury as determined by the

workers' compensation board pursuant to the provisions of section

forty-one of the volunteer firefighters' benefit law. The following

shall not be deemed to be remuneration or a gratuity: reimbursement of

expenses for meals, lodging and actual and necessary travel; the receipt

of a mileage allowance in lieu of travel expense; reimbursement of

expenses for registration and tuition fees payable under section

seventy-two-g of this chapter, the acceptance of transportation, food,

drink, shelter, clothing and similar items while on duty or engaged in

such activities; and receipt of a training stipend as outlined in

section two hundred-aa of this article.

d. "Public entity" means the city, town, village or fire district

having general control of the fire company.

2. The public entity shall provide for the defense of the volunteer

firefighter in any civil action or proceeding, state or federal, arising

out of any alleged act or omission which occurred or allegedly occurred

while the volunteer firefighter was acting in the line of duty if the

volunteer firefighter is in compliance with the provisions of

subdivision seven of this section. This duty to provide for a defense

shall not arise where such civil action or proceeding is brought by or

at the behest of the public entity.

3. Subject to the conditions set forth in subdivision two of this

section, the volunteer firefighter shall be entitled to be represented

by private counsel of his or her choice in any civil action or

proceeding whenever the chief legal officer of the public entity or

other counsel designated by the public entity determines that a conflict

of interest exists, or whenever a court, upon appropriate motion or

otherwise by a special proceeding, determines that a conflict of

interest exists and that the volunteer firefighter is entitled to be

represented by counsel of his or her choice, provided, however, that the

chief legal officer or other counsel designated by the public entity may

require, as a condition to payment of the fees and expenses of such

representation, that appropriate groups of such volunteer firefighters

be represented by the same counsel. Reasonable attorneys' fees and

litigation expenses shall be paid by the public entity to such private

counsel from time to time during the pendency of the civil action or

proceeding with the approval of the governing body of the public entity.

4. Any dispute with respect to representation of multiple volunteer

firefighters by a single counsel or the amount of litigation expenses or

the reasonableness of attorneys' fees shall be resolved by the court

upon motion or by way of a special proceeding.

5. Where the volunteer firefighter delivers process and a written

request for a defense to the public entity under subdivision seven of

this section, the public entity shall take the necessary steps on behalf

of the volunteer firefighter to avoid entry of a default judgment

pending resolution of any question pertaining to the obligation to

provide for a defense.

6. a. The public entity shall indemnify and save harmless its

volunteer firefighters in the amount of any judgment obtained against

such volunteer firefighters in a state or federal court, or in the

amount of any settlement of a claim, provided that the act or omission

from which such judgment or claim arose occurred while the volunteer

firefighter was acting in the line of duty; provided further that in the

case of a settlement the duty to indemnify and save harmless shall be

conditioned upon the approval of the amount of settlement by the

governing body of the public entity.

b. The duty to indemnify and save harmless shall be construed in the

same manner as provided in section two hundred five-b of this article.

c. Nothing in this subdivision shall authorize a public entity to

indemnify or save harmless a volunteer firefighter with respect to

punitive or exemplary damages, fines or penalties, or money recovered

from a volunteer firefighter pursuant to section fifty-one of this

chapter; provided, however, that the public entity shall indemnify and

save harmless its volunteer firefighters in the amount of any costs,

attorneys' fees, damages, fines or penalties which may be imposed by

reason of an adjudication that a volunteer firefighter, acting in the

line of duty, has, without willfulness or intent on his or her part,

violated a prior order, judgment, consent decree or stipulation of

settlement entered in any court of this state or of the United States.

d. Upon entry of a final judgment against the volunteer firefighter,

or upon the settlement of the claim, the volunteer firefighter shall

serve a copy of such judgment or settlement, personally or by certified

or registered mail within thirty days of the date of entry or

settlement, upon the chief administrative officer of the public entity;

and if not inconsistent with the provisions of this section, the amount

of such judgment or settlement shall be paid by the public entity.

7. The duty to defend or indemnify and save harmless prescribed by

this section shall be conditioned upon:

a. delivery by the volunteer firefighter to the chief legal officer of

the public entity or to its chief administrative officer of a written

request to provide for his or her defense together with the original or

a copy of any summons, complaint, process, notice, demand or pleading

within ten days after he or she is served with such document;

b. the full cooperation of the volunteer firefighter in the defense of

such action or proceeding and in defense of any action or proceeding

against the public entity based upon the same act or omission, and in

the prosecution of any appeal; and

c. the volunteer firefighter maintaining at least the minimum level of

training required by the public entity.

8. The benefits of this section shall inure only to volunteer

firefighters as defined in this section and shall not enlarge or

diminish the rights of any other party nor shall any provision of this

section be construed to affect, alter or repeal any provision of the

workers' compensation law or volunteer firefighters' benefit law.

9. This section shall not in any way affect the obligation of any

claimant to give notice to the public entity under section ten of the

court of claims act, section fifty-e of this chapter, or any other

provision of law.

10. Any public entity is hereby authorized and empowered to purchase

insurance from any insurance company created by or under the laws of

this state, or authorized by law to transact business in this state,

against any liability imposed by the provisions of this section, or to

act as a self-insurer with respect thereto.

11. All payments made under the terms of this section, whether for

insurance or otherwise, shall be deemed to be for a public purpose and

shall be audited and paid in the same manner as other public charges.

12. The provisions of this section shall not be construed to impair,

alter, limit or modify the rights and obligations of any insurer under

any policy of insurance.

13. Except as otherwise specifically provided in this section, the

provisions of this section shall not be construed in any way to impair,

alter, limit, modify, abrogate or restrict any immunity to liability

available to or conferred upon any unit, entity, officer or volunteer

firefighter of any public entity by, in accordance with, or by reason

of, any other provision of state or federal statutory or common law.