City's insurer denies coverage for police officer's criminal conduct: Breach of contract: Settlement

Law Reporter, Jun 2000

City's insurer denies coverage for police officerN criminal conduct: Breach of contract: Settlement.

Titan Indem. Co. v. Newton, U.S. Dist Ct., M.D. Ala., No. 97-C-81-N, Oct. 29,1999.

Garland and Tatum were convicted of selling hashish based on evidence fabricated by Newton, a city police officer. They won a $2.3 million verdict against Newton and the city for civil rights violations. Garland v. City of Andalusia, 40 ATLA L. Rep. 110 (Apr. 1997). The city's insurer then brought a declaratory judgment action, seeking an order that its policy with the city did not cover Newton's conduct. Garland and Tatum filed a counterclaim for breach of contract.

Granting Garland and Tatum summary judgment, a U.S. district court noted that the policy provided coverage for actions of police officers taken within the scope of their duties as law enforcement officers. Titan Indem. Co. v. Newton, 39 F. Supp. 2d 1336 (N.D. Ala. 1999). The court rejected the city's argument that Newton was not acting in the scope of his employment when he fabricated evidence against Garland and Tatum. The court cited case law holding that an employee's acts are within the scope of employment if they are so closely connected with what the servant is employed to do that they may be regarded as methods of carrying out the objectives of the employment. The court added that an employee's actions are not within the scope of employment where the employee's behavior is impelled by wholly personal motives.

Applying this standard, the court noted that a police officer who sexually assaults someone whom he or she has arrested does not act within the scope of the officer's authority. Conversely, the court said, an officer who uses excessive force on a person in the course of an arrest does act within the scope of his or her duties as a law enforcement officer. The court found the actions of Newton in fabricating evidence far closer to a police officer's use of excessive force than to the sexual assault of an arrestee. The court said there is no principled difference between fabricating evidence and using excessive force to summarily punish a suspect or to extract a confession.

Further, the court found no evidence from which it could be inferred that Newton was pursuing a private motive when he fabricated the evidence against Garland and Tatum. Instead, the court emphasized, Newton fabricated the evidence as part of his duties to arrest and assist in the prosecution of drug dealers.

Therefore, the court held, the policy provides coverage for damages arising from Newton's fabrication of evidence against Garland and Tatum.

The parties later settled for a confidential amount. Garland's Counsel

*Daniel M. Soloway, Pensacola, Fla. *Stanley F. Gray, Tuskegee, Ala. Fred David Gray Jr., Tuskegee, Ala.

Tatum's Counsel

*James A. Wardell, Tampa, Fla. Bennie Lazzara Jr., Tampa, Fla.