Friday, December 12th, 2014

Brown, Garner and Rice Cases Are Reminders of Potential Coverage Consequences Brought on by Alleged Police Misconduct

With the recent police shootings of Michael Brown in Ferguson, Missouri, and 12-year-old Tamir Rice in Cleveland, as well as the death by strangulation of Eric Garner at the hands of city police officers in New York City, comes a renewed national debate — whether it is necessary to substantially change the grand jury process as well as acceptable police tactics in citizen encounters. While the heightened awareness of these cases may lead to changes in the grand jury system as well as the review of department policies and procedures, a recent lawsuit filed in the Northern District of Illinois also raises concern for the financial aspect of these tragic encounters.

In November 2014, one of the municipal insurers for the Village of Oak Lawn filed a federal lawsuit seeking a declaratory judgment and requesting the court to order that the insurer not be required to pay its portion of a $3 million settlement to a resident who was shot six times by an Oak Lawn police officer.  In the underlying lawsuit, the plaintiff was shot six times at his house after two Oak Lawn police officers responded based on a report of a drunk and suicidal man. Upon arriving at his house, the officers encountered the plaintiff who was acting despondent and threatening them with a large knife. After it appeared as though the plaintiff was about to throw the knife at one of the officers, an officer shot the man with a stun gun. He fell to the floor but then again rose to his knees and lifted his knife. At this point, the other officer fired six shots, nearly killing the plaintiff and causing severe and permanent injury.  In the underlying civil lawsuit filed by the plaintiff, the Village entered into a settlement for $3 million. The declaratory action was then filed by the Village’s excess insurance carrier for the $1 million portion of the settlement not covered by the Village’s primary insurance carrier.

In the federal declaratory action, the Village’s insurance carrier argued that it is not required to pay its portion of the $3 million pursuant to its liability insurance with the municipality because (1) the municipality failed to notify the insurance company of the shooting until nearly three years after it occurred, and (2) the officers’ conduct described in the underlying lawsuit constituted “willful and wanton conduct” which was excluded under the policy.

While this case remains pending, it serves as a reminder to all municipalities who may be wrestling with the effects of the recent tragic encounters between citizens and police. to also re-evaluate their insurance coverage and what may or may not be covered involving the use of deadly force by their police officers. The name of the case pending in the Northern District of Illinois is Essex Ins. Co. v. Village of Oak Lawn, et al., N.D.Ill. Case #: 14 CV 4572.

 


Anthony J. Sassan

Author: Anthony J. Sassan