Municipal Corporations – Tort Liability – Purchase of Liability Insurance as Waiver of Immunity

According to a well-established common law rule, a municipal corporation is immune to tort liability for wrongs committed in the performance of governmental or public functions, although it is liable for torts committed in the performance of corporate or proprietary functions. This immunity generally cannot be waived without the authorization of the state legislature, and this authorization must be very clearly stated. Interesting questions arise, therefore, when a municipality, with or without statutory authorization, takes out a liability insurance policy covering itself or its agents, or when it causes its agents to take out bonds for faithful performance. The questions concern both the power of the municipal corporation to carry such insurance, and the effect of carrying it both on the corporation and on the insurer.