Virginia Law

Article 5. Division of Risk Management.

The Division of Risk Management (the "Division"), formerly within the Department of General Services, is hereby transferred to the Department (the "Department") of the Treasury and shall exercise the powers and duties described in this article.

1980, c. 488, § 2.1-526.1; 1988, c. 848; 2000, cc. 618, 632, § 2.1-191.5; 2001, c. 844.

The Division shall establish and maintain a file of state-owned buildings and contents, hereinafter inclusively referred to as buildings or properties, and the actual cash value or replacement cost value if insured or replacement cost basis thereof, and the amount of fire and extended coverage, vandalism and malicious mischief, optional perils or all risk insurance coverage thereon. All agencies of the Commonwealth shall keep the Division informed as to the status of all properties under their control.

1980, c. 488, § 2.1-526.2; 1982, c. 318; 1988, c. 848; 2000, cc. 618, 632, § 2.1-191.6; 2001, c. 844.

A. The Division may inspect or administer a program of self-inspection for all state-owned properties and confer with the proper officials or employees of the several agencies of the Commonwealth for the purpose of determining (i) insurance coverages that are necessary with respect to properties under their control and (ii) the manner whereby savings and costs of such insurance may be made. It may seek the assistance of insurance companies and their representatives, and the State Fire Marshal, in devising means by which hazards may be reduced or eliminated. The Division shall have final responsibility with respect to coverage, noncoverage, provisions of policies, quantity and type of fire and extended coverage, vandalism and malicious mischief, and optional perils or all risk insurance coverage. The Governor may exempt any agency, institution of higher education, or part thereof from any part of the risk management and insurance program.

B. The Division may change or discontinue fire and extended coverage, vandalism and malicious mischief, optional perils or all risk insurance coverage carried pursuant to bond indentures and other contractual requirements, provided the change or discontinuance meets with the written approval of the trustee of the bond indenture and those signatory to the contracts.

C. As its programs are implemented, the Division shall assume the sole responsibility, with the approval of the Governor, for purchasing insurance, self-insuring or combining insurance and self-insurance (i) on all properties of the Commonwealth or (ii) for protection of liabilities or other casualties.

1980, c. 488, § 2.1-526.3; 1982, c. 318; 1988, c. 848; 1996, cc. 475, 510; 2000, cc. 618, 632, § 2.1-191.7; 2001, c. 844.

A. The State Insurance Reserve Trust Fund (the "Fund") is established and shall consist of the payments required by subsection B. The Fund shall be under the management and control of the Division, and any claims for losses payable out of the Fund shall be at the direction of the Division. The Fund shall be invested as provided in § 2.2-1806 and interest shall be added to the fund as earned.

B. Each agency, department, division, or institution of state government having control over any state structure and contents thereof, or that participates in any program of insurance operated by the Division, shall pay each year into the Fund or any trust fund established pursuant to the provisions of this article amounts necessary to maintain the trusts at levels of funding deemed adequate by the Division. The Division shall set the premium and administrative costs to be paid to it for providing an insurance plan established pursuant to this section. The premiums and administrative costs set by the Division shall be payable in the amounts, at the time and in the manner that the Division in its sole discretion requires. Premiums and administrative costs need not be uniform among participants, but shall be set to best ensure the financial stability of the plan. Whenever any building or structure is under the control of two or more agencies, departments, divisions or institutions of the Commonwealth, the payment required shall be prorated upon the basis of percentage of the area controlled.

C. In the event of loss or damage exceeding $1000 to property on which there is no insurance recovery or limited insurance recovery as a consequence of any action by the Division resulting in noncoverage, reduced insurance, elimination of insured perils or otherwise, the Division shall determine the amount, if any, payable out of the Fund, and such amount, when approved by the Governor, shall be final. The amount payable shall be used for the purpose of restoring the damaged structure or rebuilding it, as the circumstances may require, but in no event shall the amount payable on account of such loss exceed the actual cash value or the replacement cost value of the property in accordance with the basis of insurance, nor shall the amount payable when added to the insurance recovered exceed the actual cash value or the replacement cost value of the property, as recorded in the property and insurance records of the Division.

D. In addition to the amounts payable under subsection C, the costs of operating the Division that are properly allocated to its functions concerning the Fund and other administrative and contractual costs of the Division not otherwise provided for shall be paid out of the Fund, for which purposes such funds are appropriated.

1980, c. 488, § 2.1-526.5; 1982, c. 318; 1988, c. 848; 1996, cc. 475, 510; 2000, cc. 618, 632, § 2.1-191.8; 2001, c. 844.

A. Subject to the approval of the Governor, the Division shall establish a risk management plan that may be self-insurance or a combination of self-insurance and purchased insurance to provide coverage on (i) state-owned buildings and (ii) state-owned contents of buildings owned by the Commonwealth or of buildings not owned by the Commonwealth that are occupied in whole or in part by an agency of the Commonwealth.

B. Any insurance plan established pursuant to this section may provide, but not be limited to, physical damage coverage against the perils of (i) fire and lightning; (ii) extended coverage for windstorm, hail, smoke, explosion, other than that caused by steam pressure vessels, riot, riot attending a strike, civil commotion, aircraft and vehicles not owned by the Commonwealth; (iii) vandalism and malicious mischief; (iv) optional perils; and (v) all risk insurance.

C. Any insurance plan established pursuant to this section shall provide for the establishment of a trust fund or contribution to the State Insurance Reserve Trust Fund for the payment of claims covered under such a plan, which are not recoverable from purchased insurance. The funds shall be invested as provided in § 2.2-1806 and interest shall be added to the fund as earned. The trust fund shall also provide for payment of administrative costs, contractual costs and other expenses related to the administration of the plan.

D. The insurance plan for state-owned buildings and state-owned contents of buildings shall be submitted to the Governor for approval prior to implementation.

1980, c. 488, § 2.1-526.7; 1982, c. 318; 1988, c. 848; 2000, cc. 618, 632, § 2.1-191.10; 2001, c. 844.

A. Subject to the approval of the Governor, the Division shall establish a risk management plan, which may be purchased insurance, self-insurance or a combination of self-insurance and purchased insurance to provide:

1. Protection against liability imposed by law for damages resulting from any claim:

a. Made against any state department, agency, institution, board, commission, officer, agent, or employee for acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization;

b. Made against participants, other than professional counsel, in student disciplinary proceedings at public institutions of higher education for nonmalicious acts or omissions of any nature in the course and scope of participation in the proceedings; or

c. Resulting from an authorized indemnification agreement entered into by a public institution of higher education in the Commonwealth in accordance with this subsection.

A public institution of higher education in the Commonwealth may execute an indemnification agreement if the Governor (i) considers in advance of execution (a) the institution's analysis of the relevant public benefit and risk of liability, (b) the Division's charge to be assessed against the institution for providing insurance or self-insurance coverage for the claims resulting from the indemnification agreement, and (c) the Office of the Attorney General's comments and (ii) determines that execution is necessary to further the public's best interests.

The indemnification agreement shall limit the institution's total liability to a stated dollar amount and shall notify the contractor that the full faith and credit of the Commonwealth are not pledged or committed to payment of the institution's obligation under the agreement. However, no such institution shall be authorized to enter into an indemnification agreement in accordance with this subsection to indemnify any person or entity against damages arising from a sponsored project conducted by such institution. For the purposes of this section, a "sponsored project" is a research, instruction, or service project conducted at a public institution of higher education in the Commonwealth pursuant to a grant, cooperative agreement, or other contract;

2. Protection against tort liability and incidental medical payments arising out of the ownership, maintenance or use of buildings, grounds or properties owned or leased by the Commonwealth or used by state employees or other authorized persons in the course of their employment;

3. For the payment of attorney fees and expenses incurred in defending such persons and entities concerning any claim that (i) arises from their governmental employment or authorization, that (ii) arises from their participation in such student disciplinary proceedings, or (iii) is described in any such indemnification agreement, where the Division is informed by the Attorney General's office that it will not provide a defense due to a conflict or other appropriate reason; and

4. For the payment of attorney fees and expenses awarded to any individual or entity against the Commonwealth, or any department, agency, institution, board, commission, officer, agent, or employee of the Commonwealth for acts or omissions of any nature while acting in an authorized governmental or proprietary capacity, or in reliance upon any constitutional provision, or law of the Commonwealth. It is the obligation of the Division to provide for such indemnification regardless of whether there is a request for or an award of damages associated with the award of such fees and expenses.

a. As a condition of coverage for the payment of attorney fees and expenses, the department, agency, institution, board, commission, officer, agent, or employee of the Commonwealth shall (i) promptly notify the Division of the commencement of any claim, suit, action or other proceeding prior to its settlement, (ii) provide the Division with full nonprivileged information on the matter as requested, and (iii) permit the Division to participate in the investigation of such claim, suit, action or other proceeding. Failure to promptly notify the Division or to reasonably cooperate may, at the Division's discretion, result in no payment or a reduced payment being made.

b. The Division shall set the premium and administrative costs to be paid to it for providing payment of attorney fees and expenses awarded pursuant to this section. The premiums and administrative costs set by the Division shall be payable in the amounts, at the time and in the manner that the Division in its sole discretion requires. Premiums and administrative costs shall be set to best ensure the financial stability of the plan.

B. Any risk management plan established pursuant to this section shall provide for the establishment of a trust fund or contribution to the State Insurance Reserve Trust Fund for the payment of claims covered under the plan. The funds shall be invested as provided in § 2.2-1806 and interest shall be added to the fund as earned. The trust fund shall also provide for payment of administrative costs, contractual costs, and other expenses related to the administration of such plan.

C. The risk management plan for public liability shall be submitted to the Governor for approval prior to implementation.

D. The risk management plan established pursuant to this section shall provide protection against professional liability imposed by law as provided in § 24.2-121, resulting from any claim made against a local electoral board, any of its members, any general registrar, or any employee of or paid deputy to a registrar for acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization, regardless of whether or not the civil action requests monetary damages, subject to the limitations of the risk management plan.

E. The risk management plan established pursuant to this section shall provide protection against any claim made against any soil and water conservation district, director, officer, agent or employee thereof, (i) arising out of the ownership, maintenance or use of buildings, grounds or properties owned, leased or maintained by any such district or used by district employees or other authorized persons in the course of their employment or (ii) arising out of acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.

F. The risk management plan established pursuant to this section shall provide protection against professional liability imposed by law for damages resulting from any claim made against a local school board selection commission or local school board selection commission members for acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of authorization, subject to the limitations of the risk management plan.

G. The risk management plan established pursuant to this section shall provide coverage for any matter that involves or could involve an action or proceeding against a judge, the nature of which is designed to determine whether discipline or other sanction of the judge for malfeasance or misfeasance is appropriate or to otherwise determine the fitness of the judge to hold office or to continue his employment. No coverage or indemnification shall be made pursuant to this subsection when the Supreme Court of Virginia finds that the judge should be censured or removed from office pursuant to § 10 of Article VI of the Constitution of Virginia or statutes enacted pursuant thereto.

H. The risk management plan established pursuant to this section shall provide protection against claims made against chaplains by persons incarcerated in a state correctional facility, a juvenile correctional center, or a facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.) arising out of services provided by the chaplains to such incarcerated persons, regardless of whether such services were provided on a volunteer basis or for compensation. For the purposes of this subsection, chaplains shall include only those persons, who, at the time any claim may arise, were acting pursuant to, and in compliance with, an agreement between the chaplain or an organization to which the chaplain belongs, and the Department of Corrections, the Department of Juvenile Justice, or an operator of a facility operated pursuant to the Corrections Private Management Act.

1980, c. 488, § 2.1-526.8; 1982, c. 318; 1986, cc. 554, 558; 1988, cc. 763, 780, 848; 1990, c. 484; 1995, c. 794; 2000, cc. 618, 632, § 2.1-191.11; 2001, c. 844; 2002, c. 765; 2003, c. 828; 2005, cc. 492, 548; 2011, c. 359; 2012, c. 366; 2022, c. 140.

A. Subject to the approval of the Governor, the Division shall establish a risk management plan, which may be purchased insurance, self-insurance or a combination of self-insurance and purchased insurance to provide (i) protection for the Commonwealth, its officers and employees and other authorized persons against tort liability and incidental medical payments arising out of the ownership, maintenance or use of motor vehicles owned or leased by the Commonwealth or used by state employees or other authorized persons in the course of their employment; and (ii) for payment of attorneys' fees and expenses incurred in defending such persons and entities concerning any claim that arises from their governmental employment or authorization where the Division is informed by the Attorney General's office that it will not provide a defense due to a conflict or other appropriate reason.

B. The risk management plan shall provide for the establishment of a trust fund or a contribution to the State Insurance Reserve Trust Fund for the payment of claims covered under the plan arising out of the ownership, maintenance or use of motor vehicles owned or leased by the Commonwealth or used by state employees or other authorized persons in the course of their employment. The funds shall be invested as provided in § 2.2-1806 and interest shall be added to the fund as earned. The plan shall also provide for payment of the expenses related to the administration of a motor vehicle insurance program for the Commonwealth. The risk management plan shall be submitted to the Governor for approval prior to implementation.

C. Any risk management plan for state motor vehicles established pursuant to this section shall provide (i) protection against the uninsured motorist at limits not less than those provided in § 46.2-100, (ii) incidental medical payments of not less than $5,000 per person to state employees and other authorized persons, and (iii) recovery of damages for loss of use of a motor vehicle, as provided in § 8.01-66.

1980, c. 488, § 2.1-526.6; 1982, c. 318; 1988, c. 848; 2000, cc. 618, 632, § 2.1-191.9; 2001, c. 844.

A. The Division shall establish one or more risk management plans specifying the terms and conditions for coverage, subject to the approval of the Governor, and which plans may be purchased insurance, self-insurance or a combination of self-insurance and purchased insurance to provide protection against liability imposed by law for damages and against incidental medical payments resulting from any claim made against any county, city or town; authority, board, or commission; sanitation, soil and water, planning or other district; public service corporation owned, operated or controlled by a locality or local government authority; constitutional officer; state court-appointed attorney; any attorney for any claim arising out of the provision of pro bono legal services for custody and visitation to an eligible indigent person under a program approved by the Supreme Court of Virginia or the Virginia State Bar; any receiver for an attorney's practice appointed under § 54.1-3900.01 or 54.1-3936; any attorney authorized by the Virginia State Bar for any claim arising out of the provision of pro bono legal services in a Virginia State Bar approved program; affiliate or foundation of a state department, agency or institution; any clinic that is organized in whole or primarily for the delivery of health care services without charge; volunteer drivers for any nonprofit organization providing transportation for persons who are elderly, disabled, or indigent to medical treatment and services, provided the volunteer driver has successfully completed training approved by the Division; any local chapter or program of the Meals on Wheels Association of America or any area agency on aging, providing meal and nutritional services to persons who are elderly, homebound, or disabled, and volunteer drivers for such entities who have successfully completed training approved by the Division; any individual serving as a guardian or limited guardian as defined in § 64.2-2000 for any individual receiving services from a community services board or behavioral health authority or from a state facility operated by the Department of Behavioral Health and Developmental Services; for nontransportation-related state construction contracts less than $500,000, where the bid bond requirements are waived, prospective contractors shall be prequalified for each individual project in accordance with § 2.2-4317; or the officers, agents or employees of any of the foregoing for acts or omissions of any nature while in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.

For the purposes of this section, "delivery of health care services without charge" shall be deemed to include the delivery of dental, medical or other health services when a reasonable minimum fee is charged to cover administrative costs.

For purposes of this section, a sheriff or deputy sheriff shall be considered to be acting in the scope of employment or authorization when performing any law-enforcement-related services authorized by the sheriff, and coverage for such service by the Division shall not be subject to any prior notification to or authorization by the Division.

B. In any case in which the coverage provided by one or more risk management plans established pursuant to this section applies, no sheriff or deputy shall be liable for any verdict or civil judgment in his individual capacity in excess of the approved maximum coverage amount as established by the Division and set forth in the respective coverage plans, which shall be at least $1.5 million for sheriffs and deputies. If a jury returns an award in excess of $1.5 million, the judge shall reduce the award and enter judgment against the sheriff or deputy for such damages in the amount of $1.5 million, provided that this shall not affect the ability of a court to order a remittitur. Nothing in this subsection shall be construed to limit the ability of a plaintiff to pursue the full amount of any judgment against a sheriff or deputy from any available insurance coverage. To the extent that any such award exceeds the coverage available under such risk management plans, the sheriff and any deputy shall be considered immune defendants under subsection F of § 38.2-2206. Automobile insurance carried by a sheriff or deputy in his personal capacity shall not be available to satisfy any verdict or civil judgment under the circumstances in which coverage is provided by one or more risk management plans.

C. Participation in the risk management plan shall be voluntary and shall be approved by the participant's respective governing body or by the State Compensation Board in the case of constitutional officers; by the office of the Executive Secretary of the Virginia Supreme Court in the case of state court-appointed attorneys, including attorneys appointed to serve as receivers under § 54.1-3900.01 or 54.1-3936, or attorneys under Virginia Supreme Court approved programs; by the Virginia State Bar in the case of attorneys providing pro bono services under Virginia State Bar approved programs; by the Commissioner of the Department of Behavioral Health and Developmental Services for any individual serving as a guardian or limited guardian for any individual receiving services from a state facility operated by the Department or by the executive director of a community services board or behavioral health authority for any individual serving as a guardian or limited guardian for any individual receiving services from the board or authority; and by the Division. Upon such approval, the Division shall assume sole responsibility for plan management, compliance, or removal. The Virginia Supreme Court shall pay the cost for coverage of eligible persons performing services in approved programs of the Virginia Supreme Court. The Virginia State Bar shall pay the cost for coverage of eligible attorneys providing pro bono services in Virginia State Bar approved programs. The Department of Behavioral Health and Developmental Services shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for any individual receiving services from a state facility operated by the Department. The applicable community services board or behavioral health authority shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for individuals receiving services from the board or authority.

D. The Division shall provide for the legal defense of participating entities and shall reserve the right to settle or defend claims presented under the plan. All prejudgment settlements shall be approved in advance by the Division.

E. The risk management plan established pursuant to this section shall provide for the establishment of a trust fund for the payment of claims covered under such plan. The funds shall be invested in the manner provided in § 2.2-1806 and interest shall be added to the fund as earned.

The trust fund shall also provide for payment of legal defense costs, actuarial costs, administrative costs, contractual costs and all other expenses related to the administration of such plan.

F. The Division shall, in its sole discretion, set the premium and administrative cost to be paid to it for providing a risk management plan established pursuant to this section. The premiums and administrative costs set by the Division shall be payable in the amounts at the time and in the manner that the Division in its sole discretion shall require. The premiums and administrative costs need not be uniform among participants, but shall be set so as to best ensure the financial stability of the plan.

G. Notwithstanding any provision to the contrary, a sheriff's department of any city or county, or a regional jail shall not be precluded from securing excess liability insurance coverage beyond the coverage provided by the Division pursuant to this section.

1986, c. 82, § 2.1-526.8:1; 1988, c. 848; 1995, c. 30; 2000, cc. 618, 632, § 2.1-191.12; 2001, c. 844; 2003, cc. 23, 49; 2004, cc. 121, 529; 2005, cc. 184, 212; 2006, c. 713; 2007, c. 773; 2009, cc. 265, 568, 813, 840; 2011, c. 789; 2012, cc. 476, 507; 2013, c. 555; 2014, cc. 35, 708.

Not in effect.

A. Subject to the approval of the Governor, the Division shall establish a program of blanket surety bonding to provide surety for the faithful performance of duty for all state employees required by statute to be bonded, and for other agency employees handling funds or having access to funds whose function, in the opinion of the agency head and the Division, should be bonded.

B. Local employees, including superintendents and jail officers of regional jail facilities as described in § 53.1-110, local constitutional officers, and those employees of the Supreme Court for whom the Commonwealth pays all or part of the costs of surety bonds shall be required to participate in the blanket surety bond program adopted by the Division through the Comptroller and the Compensation Board. The Division shall exclude clerks of the circuit court with respect to the moneys they hold pursuant to § 8.01-582 insofar as coverage is provided under § 2.2-1841 for their faithful performance concerning those moneys. Before implementing the program, the Division shall determine that the program will be of less cost to the Commonwealth than the aggregate of individual bonds costs.

C. The blanket surety bonding plan for state employees shall be submitted to the Governor for approval prior to implementation.

D. Employees or officers of a public service authority created under the Virginia Water and Waste Authorities Act (§ 15.2-5100 et seq.) may participate in the blanket surety bond program adopted by the Division through the Comptroller and the Compensation Board whenever any federal or state agency lends or guarantees funds to a public service authority created under the Virginia Water and Waste Authorities Act where the funds are utilized in the construction or capitalization of projects authorized under the Act, and there is a condition of the loan or guarantee that those employees or officers of the authority who have access to the funds be bonded. Participation by such employees or officers shall be approved by the governing body of the county or city that created the authority or is a member of the authority, with approval of the Division.

1982, c. 318, § 2.1-526.9; 1984, c. 324; 1988, cc. 841, 848; 1993, c. 939; 1995, c. 5; 2000, cc. 618, 632, § 2.1-191.13; 2001, c. 844.

The Division shall establish a program of blanket surety bonding to provide surety for the faithful discharge of duty with respect to moneys held pursuant to §§ 8.01-582 and 8.01-600 by all general receivers and clerks. General receivers and clerks shall participate in the program. The Division's cost of obtaining and administering the blanket surety bond shall be paid from those moneys covered by the bond.

1988, c. 841, § 2.1-526.9:1; 2000, cc. 618, 632, § 2.1-191.14; 2001, c. 844.

Although the provisions of this article are subject to those of Article 18.1 (§ 8.01-195.1 et seq.) of Chapter 3 of Title 8.01, nothing in this article shall be deemed an additional expressed or implied waiver of the Commonwealth's sovereign immunity.

1982, c. 318, § 2.1-526.11; 2000, cc. 618, 632, § 2.1-191.15; 2001, c. 844.

The Division may develop and implement risk management and loss prevention programs related to risk management plans established pursuant to the provisions of this article. The Division may confer with the proper officials or employees of all agencies and institutions of the Commonwealth and of participating entities and persons pursuant to § 2.2-1839, for the purpose of determining risk management and loss prevention programs that shall be carried on with respect to properties and governmental operations under their control and may determine the manner in which the programs may be developed, implemented and enforced. The Division may seek the assistance of risk management consulting companies, insurance companies, loss prevention engineering companies, and their representatives, the State Fire Marshal, and the Division of Engineering and Buildings in devising means by which causes of loss may be reduced or eliminated. The Division shall have the final responsibility with respect to implementation or nonimplementation of a plan by an agency or institution of the Commonwealth and by a participating entity or person pursuant to § 2.2-1839. Information contained in investigative reports of any state or local police department, sheriff's office, fire department or fire marshal relevant to risk management plans established pursuant to the provisions of this article shall be made available to the Division upon request. The relevant information requested shall be furnished within a reasonable time, not to exceed thirty days.

1988, c. 848, § 2.1-526.11:1; 1996, cc. 475, 510; 2000, cc. 618, 632, § 2.1-191.16; 2001, c. 844.