AGENT (NON-EMPLOYEE) LIABILITY PROTECTION
Source: Office of the Vice Chancellor for Administrative Affairs
The State of Wisconsin provides liability protection for its officers and employees when acting within the scope of their employment. This protection is also extended to AGENTS.
Coverage does not apply to the general student and volunteer body nor the activities in which they are involved. The intent of the statutes as related to "AGENTS" is to provide protection when there is a direct and substantial benefit to the University. Control by the University is necessary for coverage to be applicable. Control exists if the University makes the appointment, schedules the tasks to be performed, provides supervision and dismisses unsatisfactory performers.
For information on what types of persons might qualify for agent protection see the AGENT LIABILITY QUALIFICATION STATEMENTS which follows on this page.
Since the State changed Statutes permitting self protection for liability incidents together with headlines on recent court settlements, more people have become interested in liability protection. While all officers and employees have such protection while acting within the scope of their duties, there are a limited number of individuals who may also qualify for the State's protection. The purpose of this paper is to briefly discuss some of the qualifications and conditions under which coverage may or may not apply to this group of individuals collectively known as "agents" of the State.
It is important to state initially and to emphasize that coverage cannot and does not apply to the general student and volunteer body nor the activities in which they are involved. The same statement holds true for individuals paid by honorariums, since they are considered independent contractors, not employees. The reason for these statements is that the law of agency through past court decisions has established a very strict parameter within which an individual may be considered an agent of any organization, particularly, as is our concern, the University.
The intent of the Statute (s.895.46(1)) as related to agents is to provide protection when there is a direct and substantial benefit to the University within the scope of the duties outlined in the agency agreement.
To meet the intent, control by the University has always been a key word for coverage to be applicable. This was true even under the coverage previously provided through a private insurance company. That control of people, activities, or organizations must be evident in a combination of the following criteria: appointments, budget, dismissal, evaluation, selection, scheduling, withdrawal, termination.
Control can be evidenced in several ways. If the University appoints the volunteer, schedules when the volunteer will perform, dismisses unsatisfactory performers, provides supervision similar to employees', the service is on University property or under University control and is similar to that provided by an employee, then, obviously, control exists. Of course, all of this must be directly related to official University business.
If the conditions in the immediate preceding paragraph have been met, there is little doubt but that an agency agreement should be submitted to the Campus Insurance Coordinator for consideration. However, if the service is performed off campus or at a site not under University control and is for the direct benefit of a non-University organization, generally coverage should not be extended to the individual as an agent of the State, as the student or volunteer is acting as an agent of the non-University organization.
Exceptions to the last statement made is the purpose of this Statement. For example, if the service being performed is required as a condition to a professional designation or certification and the organization in which the service is to be performed has indicated in a written agreement or contract the University must extend protection in order for the person to perform the required service or obtain the required training, a request for agent liability should be submitted for consideration. If there are alternative organizations to which the service can be performed or training provided not requiring liability protection be extended to the student(s) or volunteer(s), then the alternative organization should be utilized. However, if the individual is paid by the non-university organization, then the request for protection should not be sent in, as the individual is acting as an employee for that organization.
As a further condition of extending liability to individuals in categories such as students, volunteers, interns, practicums, trainees, etc., the organizations to which the individuals will be assigned and the individuals under which they will work must also be subject to the control conditions stated earlier. Example: If the organization or individual to which the University person is assigned does not perform in a manner beneficial to the University person, evaluation sessions would be held and improvement shown or the organization or supervisory individual should no longer be used. If on the other hand, there are a limited number of places University people can be assigned and we have no control over the organizations and the immediate supervisors in the specific training area, we cannot exercise controls, indicating coverage cannot be extended.
Some other activities where students or volunteers would generally not be eligible for extension of liability coverage under the agent provisions are those primarily of a recreational or social nature, field trips, and persons involved in research relating to individual reports or papers, whether at an undergraduate, masters, or doctorate level. Also generally not covered are student or volunteer performers and in some cases stage hands for entertainment activities such as drama, music, dance, and other such performances.
It is important to note that individual programs and the conditions surrounding them are the determining factors as to whether eligibility exists for extending agent coverage. This means that no matter what the person may be titled, this does not automatically imply coverage should be extended. For example, students in training, interns, trainees, and practicums will not automatically have coverage granted to them just because their training or service title uses one wherein another program using the same title was granted agent liability for their service or training.
It should be evident from the information contained in this paper that, as stated in the beginning of the paper, generally agent liability should not and cannot be extended to most volunteers or assistants. What is stated is that there are exceptions to this general condition. Therefore, it is those individuals involved in these exceptional programs and under the specified conditions wherein coverage requests should be submitted for consideration that the individuals be considered agents of the State.
Any questions or concerns should be directed to the office of the Risk Management and Safety.
As amended 10 November 2000