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Colorado Counties Casualty and Property Pool v. Board of County Commissioners of the County of Prowers6/20/2002
oyees might sue for wrongful termination.
Section 24-10-110(1.5), C.R.S. 2001, provides that the public entity is liable for reasonable costs of defense for claims against a public employee arising from an act of the employee during the performance of his duties and within the scope of his employment.
The lawsuit filed by the former employee here was based on conduct by the district attorney within the performance of his duties and the scope of his employment. Moreover, the lawsuit was settled before any willful and wanton conduct was proved.
Under these circumstances, we agree with the trial court that the expenses of defending the lawsuit, including the settlement monies, were expenses contemplated by § 20-1-303 for which Prowers County is liable for its share.
II.
Prowers County also contends that because it has final discretion to approve the district attorney's proposed budget under § 30-11-107(2), C.R.S. 2001, the court erred in requiring it to reimburse the district attorney for unapproved budgetary costs in the form of the defense expenses for the litigation. We disagree with this contention as well.
Section 30-11-107(2) gives the board of county commissioners of each county the exclusive power to adopt the annual budget for the operation of the county government and provides that the final budget determination is binding.
Prowers County asserts that it has constructively denied the district attorney's request for the litigation expenses. However, even assuming that Prowers County had discretion to deny payment, the trial court could properly set aside such denial as an abuse of discretion where the county had an obligation to pay. Therefore, we disagree with Prowers County's contention that because it did not approve the unforeseen liability expenses in the district attorney's budget, the trial court was barred from imposing liability on it.
III.
Finally, Prowers County asserts that the assignment of rights by the district attorney's private insurer to the Pool was invalid because it was made after the lawsuit was filed and it was not disclosed until after judgment was entered. We again find no error in the trial court's ruling.
The trial court initially ruled that Prowers County "ought to pay its fair share" of the district attorney's litigation expenses. The court held a hearing after the four counties were unable to agree on the amount of the expenses. At that hearing, the court found:
At the time they were talking about settlement [the district attorney's private insurer] had an oral agreement with the other plaintiffs in this case that there was an assignment of any recovery due to [the private insurer] if recovery could be had from the state of Colorado or other people.
The court further found that "perhaps [the assignment] was reduced to writing sometime after the settlement, but in the Court's view it doesn't make any difference when it was reduced to writing or if it was at all." Thus, the court ruled that the assignment was valid.
Prowers County characterizes the issue on appeal as whether the Pool and the plaintiff counties "may recover more money than their incurred damages when no assignment of rights has ever been pleaded with respect to the damages in this matter, nor disclosed . . . prior to the court ruling" that Prowers County was liable for its share of the expenses. However, Prowers County has not referred us to any authority except Alpine Associates, Inc. v. KP & R, Inc., 802 P.2d 1119 (Colo. App. 1990), to support its position, and its reliance on that authority is misplaced. The court in Alpine held that
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