City Cannot Compel Police Officers to Buy Primary Insurance

Municipality May Not Preempt State Law

Police officers have a difficult and dangerous job. They should be honored for their service not punished by the citizens of the city where they live and work. In an attempt at a wild and nasty variation of the Obamacare statute, in David Bicking, et al., Appellants, v. City of Minneapolis, et al..., Supreme Court of Minnesota, — N.W.2d —- 2017 WL 1017813 (3/15/17) the Minnesota Supreme Court was asked to allow an initiative that requires police officers to buy primary liability insurance to cover defense and indemnity to the officer for his or her wrongful conduct.

FACTS

David Bicking, Michelle Gross, Janet Nye, and Jill Waite (collectively, “Bicking”) are members of a citizen group in Minneapolis that they formed to advocate for measures to improve policing and police accountability in the City. Bicking’s group submitted a petition to the Minneapolis City Council for consideration of a question regarding a proposed amendment to the Minneapolis City Charter to be placed on the ballot for the November 2016 general election.

The amendment, as proposed by Bicking’s group, would require City police officers to obtain and maintain professional liability insurance coverage and would impose other conditions for coverage and indemnification (“proposed insurance amendment”). The Minneapolis City Council directed the City Clerk not to include the proposed insurance amendment question on the ballot for the November 2016 election after concluding that the amendment conflicted with and was preempted by state law. Bicking challenge that decision. The district court agreed with the Minneapolis City Council and dismissed the petition.

ANALYSIS

Minneapolis is a home rule charter city. Bicking’s proposed insurance amendment, submitted to the Minneapolis City Council for consideration would require Minneapolis police officers to carry professional liability insurance as the officer’s “primary” insurance. The proposed law would require each appointed police officer to provide proof of professional liability insurance coverage in the amount consistent with current limits under the statutory immunity provision of state law and must maintain continuous coverage throughout the course of employment as a police officer with the city. The city may not indemnify police officers against liability in any amount greater than required by State Statute unless the officer’s insurance is exhausted.

The City asked the district court to dismiss the petition, asserting that the proposed insurance amendment conflicts with state law.

On August 22, 2016, the district court dismissed the petition. Finding that the proposed insurance amendment conflicts with several statutes that address indemnification and defense of municipal employees, the court concluded that conflict preemption “operates to void the proposed charter amendment.”

On appeal, Bicking asserted that the district court erred in dismissing his petition because the plain language of the proposed insurance amendment reveals a meaning and intent with respect to police liability insurance coverage that are different from, yet consistent with, state law.

The express limits on the initiative rights of Minneapolis residents is different than initiatives in other states. Bicking’s right to place a proposed charter amendment question on the ballot is justiciable consistent with Minnesota’s doctrine of stare decisis, the court’s obligation to promote stability in the law and the integrity of the judicial process, and the court’s reluctance to overrule precedent absent a compelling reason.

Preemption of municipal ordinances by state law is a legal question subject to de novo review as if brought directly to the Supreme Court. Charter provisions must be consistent with state law and state public policy. The adoption of any charter provision contrary to the public policy of the state, as disclosed by general laws or its penal code, is also forbidden. A municipal ordinance will be upheld unless it is inconsistent with the Federal or State Constitution or state statute. This is so because municipalities have no inherent powers and can enact regulations only as expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred. In other words, state law may limit the power of a city to act in a particular area as the Supremacy clause of the U.S. Constitution limits the power of the state to act.

A municipality cannot enact a local regulation that conflicts with state law or enact a regulation when state law fully occupies a particular field of legislation. A conflict exists between state law and a municipal regulation when the law and the regulation contain express or implied terms that are irreconcilable with each other, when the ordinance permits what the statute forbids, or when the ordinance forbids what the statute expressly permits.

The district court identified conflicts between state law and the proposed insurance amendment. First, state law requires municipalities to defend and indemnify employees acting in the scope of their job duties, including for punitive damages. The proposed insurance amendment, by making the police officer’s insurance the “primary,” or the first, coverage for purposes of any recovery, would ensure that the claimant looks first to the officer’s primary insurance for any recovery. Second, the district court recognized that municipalities may purchase insurance in excess of the liability limits established by state law, but the proposed insurance amendment would prohibit the City from indemnifying officers in an amount “greater than required by State Statute” unless the officer’s primary insurance is exhausted. Third, the district court concluded that state law requires municipalities to furnish legal counsel to police officers and pay the reasonable costs and expenses of defense, but the proposed insurance amendment, by making the officer’s insurance the primary coverage, would place the burden of defense on the officer.

The proposed insurance amendment would add requirements such as designating the officer’s required coverage as “primary”; would include provisions that permit what state law forbids, such as relieving the City of its liability for torts committed in the scope of the officer’s employment until the officer’s insurance coverage is first “exhausted”; and would include provisions that forbid what state law expressly permits, such as purchasing insurance coverage for acts for which the City would otherwise be immune.

Therefore, the initiative failed because it would preempt state law.

ZALMA OPINION

This initiative is an attempt to punish police officers for doing their jobs by requiring them to purchase, and pay for, primary liability insurance. The obligation, when a person is injured by a police officer, is for the employer to defend and indemnify the officer and purchase insurance to pay for the defense and indemnity. The proposed initiative would turn the law on its head and would probably decimate – by resignation – the police force. Police officers are not enemies of the country they are the protectors of all. The Supreme Court did the right thing. Perhaps other courts will recognize the importance of the supremacy clauses in the U.S. Constitution.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

This article and all of the blog posts on this site summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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