Commonly Asked Questions Regarding Civil Suits
What is a tort?
It is a civil wrong or injury, other than breach of contract, for which a court will recognize a suit for damages.
What is a tort claim?
State law requires that a claimant file a written notice or tort claim with the clerk of the governing body prior to filing a suit for damages.
Is a claim a lawsuit?
No. By state law a claim must precede the filing of a tort-based lawsuit brought on statutory or common law grounds. Claims brought under federal law need not be preceded by filing a claim.
What is the difference between a state and federal suit?
A suit brought under the state tort claim law has a liability limit of $125,000 per claimant (cities under 300,000 population). It cannot be brought against a public employee; only the municipality. Punitive damages are not allowed.
Generally, a suit based on federal law can be brought against both the municipality and/or the employee. Unlimited compensatory and/or punitive damages are allowed against the employee. Unlimited compensatory damages are allowed against the municipality.
What is a summons?
A summons is a written document issued by a court and serves as a formal notification that the municipality or employee is being sued.
What happens if we fail to respond to the summons?
A default judgment may be entered against you for the full amount sought by the plaintiff.
What is a petition/complaint?
This is the document describing the allegations against you. In state court it is called a petition; in federal court a complaint.
What should I do when served with a lawsuit?
Immediately send it to OMAG. We will assign the case to legal counsel specializing in your type of case. Also give a copy to your municipal attorney.
Record the date you were served with the summons. Service of these papers triggers the time in which the suit must be answered in order to avoid a default judgment against you or the municipality.
What is discovery?
It is the procedure by which all parties learn the facts of their case by acquiring evidence through documents, depositions and examinations. Your assigned defense attorney will work closely with you in preparation for your deposition or trial testimony to thoroughly prepare you fro the occasion.
What type of information is the plaintiff’s attorney entitled to request?
- production of relevant documents, including personnel files
- answers to a list of written questions (interrogatories)
- depositions may be held which are interviews conducted before a court reporter
- requests for admissions to certain facts
Will I have an attorney available during the discovery phase?
Yes. OMAG will assign defense counsel who will assist you in every stage of the proceedings. You should not communicate directly with the plaintiff’s attorney or provide anything in writing or orally to anyone but your assigned defense counsel.
Will our municipal attorney be allowed to participate?
OMAG will inform your municipal attorney of the assigned defense counsel. Your municipal attorney is allowed to monitor or assist in the defense as required. Any legal bills generated by your municipal attorney will need to be paid by your municipality.
What if there is a conflict of interest between the municipality’s defense and the employee’s defense?
In most cases no actual conflict develops and the assigned defense counsel can represent both the employee and the municipality. However, if a conflict of interest develops, OMAG will assign separate counsel for each defendant.
What if I want to hire my own lawyer to defend me? Who will pay my legal bills?
Under the terms of OMAG’s Plan, we reserve the right to hire defense counsel. Any other attorney you choose to assist in your defense will be at your sole expense.
What is a settlement conference or mediation?
These are informal, confidential meetings between the parties, their attorneys, and an impartial mediator or judge who will facilitate a frank discussion of the strengths and weaknesses of both sides. Neither party can be ordered to settle a case at these proceedings.
Why are cases settled?
In some cases, settling out of court will save a significant amount of money by avoiding a time-consuming trial. It may also save time involved in trial preparation costs, witness fees, and other related costs. Cases are also settled when key defense witnesses are no longer available to testify.
What rights do I have if a case is settled?
Usually you will be present at the settlement proceedings. If a case is settled you will be protected. Our settlement documents require that the plaintiff permanently dismiss the suit again you. In addition, the settlement documents will state that the settlement is no admission of guilt or wrong-doing on your part.
Do we have to go to trial on each case?
No. Sometimes the court will grant the municipality a summary judgment and dismiss the lawsuit. The court does this when it determines that if the uncontested facts were presented to a jury, the municipality would be entitled to judgment as a matter of law. This decision ends the need for a jury trial.
Do I or the municipality have any monetary exposure to a lawsuit?
If a lawsuit is settled or a jury verdict is within ones’ limits of coverage, only a deductible may be applicable. The deductible is charged to the municipality and not the individual defendant. Check you Plan’s declarations page for the applicable deductible amount.
What are punitive damages?
These are damages that may be awarded against the employee, and not the municipality, for wanton or malicious conduct intended to harm another. As a matter of public policy these damages are not covered under insurance policies, including OMAG’s Plan, and may only be awarded against individual defendants.
What are compensatory damages?
These are monetary damages caused directly by the actions of the employee or municipality. They include loss of earning, pain and suffering, medical expenses, loss of consortium and familial rights, etc.
How can I contribute to the overall process?
Your utmost cooperation is critical. This means returning telephone calls as soon as possible, appearing on time for meetings and interviews, and assisting your attorney in preparation for trial. Thorough preparation, combined with a professional demeanor and positive attitude, will greatly enhance your chances for a successful result.
How long will it be before the litigation is over?
There are no hard-and-fast timelines here. Generally, a federal case will go to trial within 1 to 2 years after you are served. State court cases go to trial usually within 2 to 3 years after being served. If appeals are involved it can take an additional 1 to 2 years in federal cases and 2 to 3 years in state cases.
Why did you send me a “Reservation of Rights” letter?
OMAG will immediately notify you if there are any potential problems in the coverage of your case. For example, if the suit seeks punitive damages against you, OMAG will alert you that there is no coverage for these alleged damages.
You should not consider this letter as an indication by OMAG that we think you are liable for damages simply because the plaintiff has made allegations against you.
A. Petition/Complaint Filed and Summons Served on Defendants
B. Responses Filed on Behalf of Defendants
C. Discovery Commences
2. Requests for Admissions
3. Requests for Production of Documents
5. Witness Statements
D. Motions to Dismiss, Summary Judgment or Qualified Immunity Filed on Behalf of Defendants
E. If Court Overrules above Motions, Case Proceeds to Trial
F. Jury Trial
G. Appeals by Parties Alleging Error During Trial by the Court
H. Decision by Appellate Court
I. Possible New Trial