March 14, 2014 – Yesterday, the Wisconsin Supreme Court heard an insurance case involving a police officer who was struck by a motorist at the airport. Today, the court is heard an immunity case involving a car crash with a police car that ran a red light.
In this pair of cop collision cases, the supreme court will likely clarify whether police officers are immune from lawsuits alleging police vehicles caused damage, and the extent of employee underinsured motorist coverage for police officers injured on the job.
In Jackson v. Wisconsin County Mutual Insurance Corp., an appeals court ruled that Milwaukee County’s insurance carrier had to pay for injuries sustained by a police officer who was on foot when helping a motorist reenter traffic at the airport. As the officer walked in front of the motorist’s car, the driver inadvertently hit the officer.
The county’s underinsured motorist policy covered police officers “while using an automobile within the scope of his or her employment or authority.” The appeals court confirmed the officer was “using” the motorist’s car to help the motorist navigate traffic.
“We hold that the policy’s phrase ‘while using an automobile within the scope of his or her employment or authority’ does not require that the insured be using one of the automobiles for which the policy was issued,” wrote Judge Ralph Adam Fine.
The appeals court noted that the term “use” was not limited to “driving” under the insurance policy. It also included “operating, manipulating, riding in and any other use.”
At oral argument yesterday, Madison lawyer Lori Lubinsky, representing Wisconsin County Mutual, said “this case is about how far the court is going to interpret and stretch the common and reasonable interpretation of the word ‘use.’”
Lubinsky argued that the police officer, Rachelle Jackson, was not “using” the motorist’s vehicle as that term is used in the policy and a relevant statute.
Even if Jackson was “using” the vehicle, Lubinsky argued, Jackson was not covered because she was using “the same vehicle that’s also the underinsured vehicle.”
Jackson’s lawyer, Milwaukee lawyer Christopher Strohbehn, said the policy was intended to cover circumstances like this. It covers injuries sustained to officers who use other vehicles, he said, and Jackson was using the driver’s car because she was acting “in concert” with the car’s driver to help it reenter traffic within the scope of her job.
In Legue v. City of Racine, a police officer responding to an emergency call collided with another vehicle at an intersection while proceeding against a red light.
The appeals court certified the case to the Wisconsin Supreme Court to decide whether governmental immunity applies “when someone is injured because an officer proceeds against a traffic signal. …”
The injured party said immunity does not extend to an officer’s “manner of entering the intersection,” even if the officer met requirements to signal other drivers and slow down.
Milwaukee lawyer Timothy Knurr, representing the injured driver, said a police officer’s physical operation of car is not the type of discretionary decision-making that is immune from suit under Wisconsin’s governmental immunity statute. Knurr noted that a jury determined the officer failed to exercise due regard under the circumstances.
He also said giving immunity to officers’ driving decisions would essentially grant immunity to all public workers who drive cars on the job.
“If you are going to say that Officer Matson’s physical operation of the vehicle that day – with regard to management and control, and speed and lookout – are all ‘discretionary’ decisions entitling her to immunity, then why would that logic not apply to the operator of the public works vehicle driving to the water main break?” Knurr said.
Racine attorney Thomas Devine, representing the officer and the City of Racine, said prior case law determines that emergency responders are immune for “those decisions that are associated with the emergency vehicle and its process.”
Devine said the officer’s decision to enter the intersection where the collision took place is a discretionary decision that is protected by the immunity statute.
The justices questioned how an officer’s negligent operation of a vehicle can be classified as a discretionary decision. Devine said officers in emergency situations have privileges that are not part of the ordinary driving experience for other drivers.
“Somebody who is operating an emergency vehicle is necessarily in a place that has risk … is necessarily involved in a process where some form of injury is certainly potential,” said Devine, who noted that officers are immune in those circumstances.
