Mont. Code Ann. » TITLE 2. GOVERNMENT STRUCTURE AND ADMINISTRATION · CHAPTER 9. LIABILITY EXPOSURE AND INSURANCE COVERAGE · Part 3. Claims and Actions
Montana Code Annotated

Mont. Code Ann. § 2-9-305 (2026)

Immunization, Defense, And Indemnification Of Employees

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 2
  3. CHAPTER 9
  4. Part 3
  5. 2-9-305 Immunization, defense, and indemnification of employees

TITLE 2. GOVERNMENT STRUCTURE AND ADMINISTRATION

CHAPTER 9. LIABILITY EXPOSURE AND INSURANCE COVERAGE

Part 3. Claims and Actions

Immunization, Defense, And Indemnification Of Employees

2-9-305. Immunization, defense, and indemnification of employees. (1) It is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment.

(2) In any noncriminal action brought against any employee of a state, county, city, town, or other governmental entity for a negligent act, error, or omission, including alleged violations of civil rights pursuant to 42 U.S.C. 1983, or other actionable conduct of the employee committed while acting within the course and scope of the employee's office or employment, the governmental entity employer, except as provided in subsection (6), shall defend the action on behalf of the employee and indemnify the employee.

(3) Upon receiving service of a summons and complaint in a noncriminal action against an employee, the employee shall give written notice to the employee's supervisor requesting that a defense to the action be provided by the governmental entity employer. If the employee is an elected state official or other employee who does not have a supervisor, the employee shall give notice of the action to the legal officer or agency of the governmental entity defending the entity in legal actions of that type. Except as provided in subsection (6), the employer shall offer a defense to the action on behalf of the employee. The defense may consist of a defense provided directly by the employer. The employer shall notify the employee, within 15 days after receipt of notice, whether a direct defense will be provided. If the employer refuses or is unable to provide a direct defense, the defendant employee may retain other counsel. Except as provided in subsection (6), the employer shall pay all expenses relating to the retained defense and pay any judgment for damages entered in the action that may be otherwise payable under this section.

(4) In any noncriminal action in which a governmental entity employee is a party defendant, the employee must be indemnified by the employer for any money judgments or legal expenses, including attorney fees either incurred by the employee or awarded to the claimant, or both, to which the employee may be subject as a result of the suit unless the employee's conduct falls within the exclusions provided in subsection (6).

(5) Recovery against a governmental entity under the provisions of parts 1 through 3 of this chapter constitutes a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error, omission, or other actionable conduct gave rise to the claim. In an action against a governmental entity, the employee whose conduct gave rise to the suit is immune from liability by reasons of the same subject matter if the governmental entity acknowledges or is bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee's employment, unless the claim constitutes an exclusion provided in subsections (6)(b) through (6)(d).

(6) In a noncriminal action in which a governmental entity employee is a party defendant, the employee may not be defended or indemnified by the employer for any money judgments or legal expenses, including attorney fees, to which the employee may be subject as a result of the suit if a judicial determination is made that:

(a) the conduct upon which the claim is based constitutes oppression, fraud, or malice or for any other reason does not arise out of the course and scope of the employee's employment;

(b) the conduct of the employee constitutes a criminal offense as defined in Title 45, chapters 4 through 7;

(c) the employee compromised or settled the claim without the consent of the government entity employer; or

(d) the employee failed or refused to cooperate reasonably in the defense of the case.

(7) If a judicial determination has not been made applying the exclusions provided in subsection (6), the governmental entity employer may determine whether those exclusions apply. However, if there is a dispute as to whether the exclusions of subsection (6) apply and the governmental entity employer concludes that it should clarify its obligation to the employee arising under this section by commencing a declaratory judgment action or other legal action, the employer is obligated to provide a defense or assume the cost of the defense of the employee until a final judgment is rendered in that action holding that the employer did not have an obligation to defend the employee. The governmental entity employer does not have an obligation to provide a defense to the employee in a declaratory judgment action or other legal action brought against the employee by the employer under this subsection.

History: (1)En. 82-4322.1 by Sec. 1, Ch. 239, L. 1974; Sec. 82-4322.1, R.C.M. 1947; (2) thru (4)En. Sec. 23, Ch. 380, L. 1973; amd. Sec. 2, Ch. 239, L. 1974; Sec. 82-4323, R.C.M. 1947; R.C.M. 1947, 82-4322.1, 82-4323; amd. Sec. 1, Ch. 530, L. 1983; amd. Sec. 57, Ch. 61, L. 2007.

Notes of Decisions
Cited in 65 cases (20 in the last 5 years), 1981–2026 · leading case: Kiely Constr., L.L.C. v. City of Red Lodge Ex Rel. Red Lodge City Council, 2002 MT 241 (Mont. 2002).
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Kiely Constr., L.L.C. v. City of Red Lodge Ex Rel. Red Lodge City Council, 2002 MT 241 (Mont. 2002). · cites it 46× “However, the court granted summary judgment as to the individually named members of the City Council, pursuant to § 2-9-305(5), MCA, concluding the individual council members were immune from suit.”
Germann v. Stephens, 2006 MT 130 (Mont. 2006). · cites it 61× “We cited § 2-9-305, MCA (1987), in reasoning that where a litigant brings an action against a county based on actionable conduct by a county employee, the employee enjoys immunity from individual liability for the conduct where the county acknowledges that the conduct arose out…”
Stansbury v. Lin, 848 P.2d 509 (Mont. 1993). · cites it 85× “Professor Lin moved to dismiss Stansbury's complaint, arguing that since Stansbury had settled the slander action with Professor Lin's employer, the State of Montana, Stansbury was statutorily barred by § 2-9-305, MCA, from suing him as an individual.”
State, Jud. Branch, Off. of the Court Adm'r v. Berdahl, 2017 MT 26 (Mont. 2017). · cites it 31× “[PJlease accept this letter as his formal tender of the defense of this action filed against him, and his request for indemnity as provided by Mont. Code Ann. § 2-9-305 .” On April 25, 2014, the Agency Legal Services Bureau, on behalf of the Court Administrator, wrote to Crist…”
Story v. City of Bozeman, 856 P.2d 202 (Mont. 1993). · cites it 33× “Nothing in § 2-9-305, MCA (1985), provides immunity from suit for Mann under these facts.”
Denke v. Shoemaker, 2008 MT 418 (Mont. 2008). · cites it 16× “¶87 Aside from the rules of judicial admissions, Denke also directs our attention to § 2-9-305, MCA (1999). Subsection (1) states that “[i]t is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued…”
State Ex Rel. Eccleston v. Montana Third Jud. Dist. Court, 783 P.2d 363 (Mont. 1989). · cites it 16× “The argument that a mere employee is not an agent in the sense of § 2-9-111, MCA, is buttressed when one examines § 2-9-305, MCA. This statute provides indemnity for employees who are sued for actionable conduct in their service of the government.”
Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246 (Mont. 2010). · cites it 10× “Because the School District, through the actions of Uggetti and Metz, violated her First Amendment right to free speech, Griffith is entitled to relief under her § 1983 claim.”
Orozco v. Day, 934 P.2d 1009 (Mont. 1997). · cites it 13× “Although *348 the heading of § 2-9-305, MCA, contains the language “Governmental entity to be joined as defendant,” nothing in the text of the statute relates to or supports that portion of the heading.”
Rosenthal v. Cnty. of Madison, 2007 MT 277 (Mont. 2007). · cites it 8× “DISCUSSION Did) the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common law doctrine of prosecutorial immunity? ¶24 Rosenthal first asserts that the enactment of the Montana Tort Claims Act, § 2-9-305, MCA, abrogated the common law doctrine of absolute prosecutorial…”
Cion Peralta v. T. Dillard, 744 F.3d 1076 (9th Cir. 2014). · cites it 2× “§ 41-621 ; Idaho Code § 6-903 ; Mont. Code Ann. § 2-9-305 ; Nev. Rev. Stat.”
Dvorak v. Huntley Proj. Irrigation Dist., 639 P.2d 62 (Mont. 1981). · cites it 12× “The section of Chapter 9 that applies to individual defendants is section 2-9-305, MCA, which provides: " Governmental entity to be joined as defendant — immunization and indemnification of employees.”
Show all 65 citing cases →
— Mont. Code Ann. § 2-9-305(1) — 9 cases
Denke v. Shoemaker, 2008 MT 418 (Mont. 2008). “¶87 Aside from the rules of judicial admissions, Denke also directs our attention to § 2-9-305, MCA (1999). Subsection (1) states that “[i]t is the purpose of this section to provide for the immunization, defense, and indemnification of public officers and employees civilly sued…”
Koppen v. Bd. of Med. Examiners, 759 P.2d 173 (Mont. 1988).
Rosenthal v. Cnty. of Madison, 2007 MT 277 (Mont. 2007). “DISCUSSION Did) the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common law doctrine of prosecutorial immunity? ¶24 Rosenthal first asserts that the enactment of the Montana Tort Claims Act, § 2-9-305, MCA, abrogated the common law doctrine of absolute prosecutorial…”
Dvorak v. Huntley Proj. Irrigation Dist., 639 P.2d 62 (Mont. 1981). “The section of Chapter 9 that applies to individual defendants is section 2-9-305, MCA, which provides: " Governmental entity to be joined as defendant — immunization and indemnification of employees.”
Stansbury v. Lin, 848 P.2d 509 (Mont. 1993). “Professor Lin moved to dismiss Stansbury's complaint, arguing that since Stansbury had settled the slander action with Professor Lin's employer, the State of Montana, Stansbury was statutorily barred by § 2-9-305, MCA, from suing him as an individual.”
— Mont. Code Ann. § 2-9-305(2) — 11 cases
Orozco v. Day, 934 P.2d 1009 (Mont. 1997). “Although *348 the heading of § 2-9-305, MCA, contains the language “Governmental entity to be joined as defendant,” nothing in the text of the statute relates to or supports that portion of the heading.”
State, Jud. Branch, Off. of the Court Adm'r v. Berdahl, 2017 MT 26 (Mont. 2017). “[PJlease accept this letter as his formal tender of the defense of this action filed against him, and his request for indemnity as provided by Mont. Code Ann. § 2-9-305 .” On April 25, 2014, the Agency Legal Services Bureau, on behalf of the Court Administrator, wrote to Crist…”
Holladay v. State of Mont., 506 F. Supp. 1317 (D. Mont. 1981).
Koppen v. Bd. of Med. Examiners, 759 P.2d 173 (Mont. 1988).
Boucher v. Dramstad, 522 F. Supp. 604 (D. Mont. 1981).
— Mont. Code Ann. § 2-9-305(4) — 5 cases
B. M. ex rel. Burger v. State, 649 P.2d 425 (Mont. 1982).
Clark v. Dussault, 878 P.2d 239 (Mont. 1994).
Vehrs v. Moses, 716 P.2d 207 (Mont. 1986).
Noren v. Straw, 578 F. Supp. 1 (D. Mont. 1982).
BM v. State, 649 P.2d 425 (Mont. 1982).
— Mont. Code Ann. § 2-9-305(5) — 20 cases
Kiely Constr., L.L.C. v. City of Red Lodge Ex Rel. Red Lodge City Council, 2002 MT 241 (Mont. 2002). “However, the court granted summary judgment as to the individually named members of the City Council, pursuant to § 2-9-305(5), MCA, concluding the individual council members were immune from suit.”
Germann v. Stephens, 2006 MT 130 (Mont. 2006). “We cited § 2-9-305, MCA (1987), in reasoning that where a litigant brings an action against a county based on actionable conduct by a county employee, the employee enjoys immunity from individual liability for the conduct where the county acknowledges that the conduct arose out…”
Story v. City of Bozeman, 856 P.2d 202 (Mont. 1993). “Nothing in § 2-9-305, MCA (1985), provides immunity from suit for Mann under these facts.”
Stansbury v. Lin, 848 P.2d 509 (Mont. 1993). “Professor Lin moved to dismiss Stansbury's complaint, arguing that since Stansbury had settled the slander action with Professor Lin's employer, the State of Montana, Stansbury was statutorily barred by § 2-9-305, MCA, from suing him as an individual.”
Griffith v. Butte Sch. Dist. No. 1, 2010 MT 246 (Mont. 2010). “Because the School District, through the actions of Uggetti and Metz, violated her First Amendment right to free speech, Griffith is entitled to relief under her § 1983 claim.”
— Mont. Code Ann. § 2-9-305(6) — 3 cases
State, Jud. Branch, Off. of the Court Adm'r v. Berdahl, 2017 MT 26 (Mont. 2017). “[PJlease accept this letter as his formal tender of the defense of this action filed against him, and his request for indemnity as provided by Mont. Code Ann. § 2-9-305 .” On April 25, 2014, the Agency Legal Services Bureau, on behalf of the Court Administrator, wrote to Crist…”
Overstreet v. Fetterhoff, 2024 MT 293N (Mont. 2024).
Darrow v. Msla Dem. Cen. Com., 2021 MT 282N (Mont. 2021).
— Mont. Code Ann. § 2-9-305(6)(a) — 2 cases
Rosenthal v. Cnty. of Madison, 2007 MT 277 (Mont. 2007). “DISCUSSION Did) the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common law doctrine of prosecutorial immunity? ¶24 Rosenthal first asserts that the enactment of the Montana Tort Claims Act, § 2-9-305, MCA, abrogated the common law doctrine of absolute prosecutorial…”
Darrow v. Msla Dem. Cen. Com., 2021 MT 282N (Mont. 2021).
— Mont. Code Ann. § 2-9-305(6)(b) — 2 cases
Darrow v. Msla Dem. Cen. Com., 2021 MT 282N (Mont. 2021).
Carrie Gregory v. State of Montana & Tomeka Williams (D. Mont. 2026).
— Mont. Code Ann. § 2-9-305(6)(c) — 1 case
State, Jud. Branch, Off. of the Court Adm'r v. Berdahl, 2017 MT 26 (Mont. 2017). “[PJlease accept this letter as his formal tender of the defense of this action filed against him, and his request for indemnity as provided by Mont. Code Ann. § 2-9-305 .” On April 25, 2014, the Agency Legal Services Bureau, on behalf of the Court Administrator, wrote to Crist…”
— Mont. Code Ann. § 2-9-305(7) — 1 case
State, Jud. Branch, Off. of the Court Adm'r v. Berdahl, 2017 MT 26 (Mont. 2017). “[PJlease accept this letter as his formal tender of the defense of this action filed against him, and his request for indemnity as provided by Mont. Code Ann. § 2-9-305 .” On April 25, 2014, the Agency Legal Services Bureau, on behalf of the Court Administrator, wrote to Crist…”
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