7th Circuit splits over plain reading of Indiana law

In a case involving an Indianapolis Metropolitan police officer trying to recoup attorney fees, a split 7th Circuit Court of Appeals illustrated that taking a plain reading of statute does not always make things clear.

Indianapolis police officer Scott Robinett and the city of Indianapolis were named defendants in a lawsuit filed by the estate of Kimberlee Carmack. Her estranged ex-husband, Ryan Anders, harassed and intimidate Carmack before killing her then himself.

Both Carmack and Anders were also Indianapolis police officers. The department had opened an investigation into Anders’ actions and attached a GPS tracking device to his car so Carmack would be alerted when he was near.

However, while Anders got Robinett to confirm the device had been put on his car, Robinett did not inform the investigators. Ten days later, Anders drove his grandmother’s car to Carmack house and ended both their lives.

The estate filed claims against Robinett, arguing he failed to intervene to protect Carmack. The U.S. District Court for the Southern District of Indiana granted summary judgment to Robinett and the other defendants.

Robinett subsequently filed a motion for the City of Indianapolis to pay his attorney fees and costs under Indiana Code section 34-13-4-1. But the district court denied the motion, ruling Robinett was acting outside the scope of his employment.

The majority of the 7th Circuit affirmed that ruling Monday in Scott Robinett v. City of Indianapolis, 17-2609.

Based on its own reading the statute, known as the public-employee indemnification statute, the majority held Robinett was taking too broad of an interpretation. The majority determined that indemnification is mandatory for a compensatory-damages judgment, but discretionary for paying a settlement or a punitive-damages judgment.

“Read naturally, the word ‘also’ tells us that indemnification of defense costs is subject to the same terms as indemnification of a judgment or settlement: it is available only in a civil-rights action when the government defends or has the opportunity to defend and the public employee was acting within the scope of his employment at the time of the act or omission in question,” Judge Diane Sykes wrote for the majority, joined by Judge William Bauer.

The majority then pointed to Kapitan v. City of Gary, 12 F.3d 678(7th Cir. 1993). There, the appellate court addressed an earlier version of the statute, but held that “payment of costs and legal fees follows from the decision to indemnify the substantive liability; a governmental entity that decides not to indemnify also need not pay these ancillary expenses.”

“In short, the statute protects public employees who act within the scope of their employment from having to foot the bill for defense costs in a civil-rights action regardless of the outcome,” Sykes concluded. “Win or lose, however, the employee must have been acting within the scope of his employment; a mere allegation to that effect is not enough to put the public employer on the hook for the cost of the defense. Both the statutory text and precedent make this clear.”

Judge Ilana Rovner dissented, noting that had the Indiana General Assembly intended to impose the same conditions on the obligation to pay costs and fees that it did on the duty to pay damages, it would have listed the fees and costs in the statute. But it did not, choosing instead to list the duty separately and broadly without similar limitations.

“The majority hangs its interpretation on the word ‘also,’ a rather heavy load for such an unassuming word,” Rovner wrote. “In this context, where it would have been so easy to list fees and costs under the third enumerations, making clear that the conditions precedent applied to that particular obligation, I find it too onerous a burden for the word ‘also’ to carry.”

She also faulted the majority for its reliance on Kapitan. Rovner noted nothing in that decision addresses the issue in the present case of whether fees are covered only for acts taken within the scope of employment and not for acts alleged to be outside that scope.

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