| LEGAL EASE |
County was deliberately indifferent but did find the guards
were negligent. So, the Sisk family lost on the federal claim
but won on the state law claim. If the family had won on
the federal claim, the Kansas Tort Claims Act limitation
of $500,000 would not have applied, and the County
would have been exposed to a judgment far in excess of
$500,000.
There are also other types of federal causes of action
that can be brought against public entities. For example,
numerous complicated environmental statutes may apply
to certain public entities. The $500,000 limitation under
the Kansas Tort Claims Act would not apply to violations
of federal environmental laws. Often insurance carriers
attempt to exclude coverage for violations of environmental
statutes through what is known as the “absolute” pollution
exclusion. Some policies, however, do not have absolute
pollution exclusions. Damages in environmental cases can
be horrendous.
Also, the Kansas Tort Claims Act would probably not apply
to claims against Kansas public entities in other states. For
example, if a school or municipal employee is involved
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16
in an automobile accident in another state, the law of the
state in which the accident occurred would normally be the
applicable law. In those situations, the $500,000 limitation
of the Kansas Tort Claims Act would likely not apply.
Some carriers are offering what are referred to as
‘wraparound’ endorsements in liability policies for public
entities. My understanding of these endorsements is
that they generally have a limit of $500,000 but would
provide coverage over $500,000 only in situations
where the Kansas Tort Claims Act would not apply to
limit the exposure of the public entity to $500,000. The
‘wraparound’ is one possible solution to the potential
exposure of public entities beyond the $500,000 limitation.
In my opinion any public entity considering purchasing
liability insurance should understand there are potential
exposures for claims against it well in excess of the
$500,000 limit under the Kansas Tort Claims Act
and should at least consider obtaining policies that
either provide higher limits or, through a wraparound
endorsement, provide coverage in excess of $500,000 for
such exposures.