CHRISTIE RICHARDSON V. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT
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CHRISTIE RICHARDSON
V.
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2004-CA-002440-MR
JEFFERSON CIRCUIT COURT NO. 03-CI-008296
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
This appeal concerns the interpretation of several provisions of the Claims
Against Local Governments Act (CALGA). KRS 65 .200 to .2006 . CALGA
mandates that a local government provide for the defense of an employee in an
action in tort arising out of acts or omissions occurring within the scope of his or
her employment. KRS 65.2005(1) . In this case of first impression, we are asked
to determine whether the duty to defend under CALGA applies to former
employees sued in tort for acts or omissions occurring within the scope of their
employment. We hold that it does.
I. Facts
In March 2002, criminal charges were brought against Appellant, Christie
Richardson, who had been a police officer with the Louisville Metro Narcotics
Unit since 1997, and Detective Mark Watson . The indictment included 450
counts accusing Watson and Richardson of falsifying search warrant affidavits,
forging signatures on search warrants, and tampering with drug evidence, among
other allegations . Watson pled guilty to all charges. Richardson resigned on
March 18, 2002, shortly after being indicted . She was ultimately convicted of
first-degree official misconduct, second-degree possession of a forged
instrument, and eighteen (18) counts of tampering with public records, and
acquitted on all other charges .
After Richardson's resignation, the following five civil actions were filed
against the various government entities, Watson, and Richardson : (1) Boyer v.
City of Louisville ; (2) Northington v. Watson ; (3) Grigsby v. Louisville/Jefferson
County Metro Government ; (4) Spencer v. City of Louisville ; and (5) Elliott v. City
of Louisville, . The allegations in the complaints against Richardson pertained to
her performance as a police officer, involving incidents which occurred through
the end of 2001 . The plaintiffs allege that Richardson unlawfully entered and
searched their residences, offered perjured testimony against them, and
committed other acts of official misconduct .
When Louisville/Jefferson County Metro Government (Metro Government)
denied Richardson a defense in the civil suits, she filed a declaratory judgment
action in the Jefferson Circuit Court, seeking a ruling that Metro Government was
obligated under CALGA to provide her a defense. The circuit court entered
judgment in Richardson's favor, reasoning that because the five civil actions seek
money damages for her tortious acts during her employment, CALGA provides
entitlement to a legal defense .
The Court of Appeals, in a 2-1 decision, reversed and held that the duty to
defend under CALGA does not apply to former employees . In denying
Richardson a civil defense, the Court of Appeals found that Metro Government
had no duty to defend since she had resigned before any of the civil suits were
filed against her.
11. Analysis
A. Statutory Construction
The resolution of this appeal depends upon the construction of several
provisions of CALGA . As we have previously indicated, our goal in construing a
statute is to give effect to the intent of the General Assembly. Osborn v .
Commonwealth, 185 S.W .3d 645, 648 (Ky. 2006) . To determine legislative
intent, we look first to the language of the statute, giving the words their plain and
ordinary meaning. Id. at 648-49 . The statute must be read as a whole and in
context with other parts of the law. Lewis v. Jackson Energy Co-op. Corp., 189
S.W.3d 87, 92 (Ky. 2005).
Where a statute is unambiguous, we need not consider extrinsic evidence
of legislative intent and public policy. Id. at 94. We presume, of course, that the
General Assembly did not intend an absurd or manifestly unjust result.
Commonwealth v. ,,Reynolds, 136 S .W .3d 442, 445 (Ky. 2004).
As a matter of application, all statutes are to be liberally construed to
promote the objects and carry out the intent of the General Assembly. KRS
446.080(l). Because the construction and application of a statute is a question
of law, it is subject to de novo review. Osborne, 185 &W .3d at 648.
B . CALGA
Having set forth the rules for statutory construction, we now turn to the
issue of whether Metro Government has a duty to defend Richardson against the
civil actions. Richardson argues that the critical question is whether the civil
claims arise out of acts or omissions occurring within the scope of employment .
According to Richardson, her status as a former employee does not preclude
Metro Government's duty to defend since the civil claims arose from her job as a
police officer . We agree.
KRS 65 .2005 states that:
(1) A local government shall provide for the defense of any
employee by an attorney chosen by the local government in any
action in tort arising out of an act or omission occurring within the
scope of his employment of which it has been given notice pursuant
to subsection (2) of this section. The local government shall pay
any judgment based thereon or any compromise or settlement of
the action except as provided in subsection (3) of this section and
except that a local government's responsibility under this section to
indemnify an employee shall be subject to the limitations contained
in KRS 65.2002 .
(2) Upon receiving service of a summons and complaint in any
action in tort brought against him, an employee shall, within ten (10)
days of receipt of service, give written notice of such action in tort to
the executive authority of the local government .
(3) A local government may refuse to pay a judgment or settlement
in any action against an employee, or if a local government pays
any claim or judgment against any employee pursuant to
subsection (1) of this section, it may recover from such employee
the amount of such payment and the costs to defend if:
(a) The employee acted or failed to act because of fraud, malice, or
corruption ;
(b) The action was outside the actual or apparent scope of his
employment;
(c) The employee willfully failed or refused to assist the defense of
the cause of action, including the failure to give notice to the
executive authority of the local government pursuant to subsection
(2) of this section ;
(d) The employee compromised or settled the claim without the
approval of the governing body of the local government; or
(e) The employee obtained private counsel without the consent of
the local government, in which case, the local government may also
refuse to pay any legal fees incurred by the employee.
As used in KRS 65.2005, unless the context otherwise requires,
"'Employee' means any elected or appointed officer of a local government, or any
paid or unpaid employee or agent of a local government, provided that no
independent contractor nor employee nor agent of an independent contractor
shall be deemed to be an employee of a local government ." KRS 65.200(2) .
KRS 65 .2005 applies to "[e]very action in tort against any local
government in this Commonwealth for death, personal injury or property
damages proximately caused by. . . [a]ny act or omission of any employee, while
acting within the scope of his employment or duties" . KRS 65.2001(1) .
The key to this case is the timing of the acts or omissions which form the
basis for the civil claims, not the filing dates of the lawsuits . Thus, the analysis
should focus on whether Richardson was a police officer at the time of the
alleged tortious acts. This interpretation is consistent with the plain meaning of
KRS 65.2005(1), which mandates that "[a] local government shall provide for the
defense of any employee . . . in any action in tort arising out of an act or omission
occurring within the scope of his employment". (Emphasis added) . The statutory
language clearly evidences the General Assembly's intent to provide a defense
to employees - both current and former - in civil litigation, so long as the claims
arise from public duties .'
The General Assembly set forth certain limitations on the duty to defend,
and on the liability of local governments, when it enacted CALGA in 1988 .
Independent contractors and employees or agents of independent contractors
are not considered public employees . KRS 65 .200(2). Additionally, a local
government is not obligated to defend employees who fail to provide timely
notice of a civil action . KRS 65 .2005(1)-(2) . Further, a local government may
refuse to pay a judgment or settlement and may recover legal defense costs in
certain instances, such as if the employee acted outside the scope of his
employment, or acted or failed to act due to fraud, malice, or corruption . KRS
65 .2005(3) . There is, however, no express exception for former employees sued
in tort for acts or omissions occurring during their public employment, nor is there
language requiring that such claims be filed prior to the end of employment.
Thus, as evidenced by the explicit exclusion of some members, the General
Assembly was fully capable of precluding former employees, had it so intended .
CALGA was enacted in part to shield public employees from the personal
expense incurred in the defense of tort claims. See KRS 65 .2001(2) (the intent
of the act is to "continue in force" previously decided case law, "[e]xcept as
otherwise specifically provided in KRS 65.2002 to 65 .2006"); Schwindel v. Meade
Count, 113 S .W .3d 159, 163 (Ky. 2003) ("the legislative intent was . . . to specify
what damages could be obtained against local governments that are subject to
' CALGA, as interpreted by this Court, does not violate Section 3 of the
Kentucky Constitution because the duty to defend extends only to claims arising
out of employment with local government .
6
common law judgments and what obligation a local government has to provide a
defense for and pay judgments rendered against its employees for the tortious
performance of their ministerial duties") . The protections afforded by CALGA
allow public employees to diligently and faithfully serve the Commonwealth
without worrying about the financial burdens and other adverse consequences of
civil litigation, which may stem from their civil service.
Interpreting CALGA in a manner that renders the duty to defend
inapplicable to retired and deceased workers, and other former employees,
would significantly diminish the value of its guarantees. The Court of Appeals'
interpretation of KRS 65 .2005 and KIRS 65.200, excluding former employees
from its protections, thus frustrates the intent and purpose of CALGA . If the
Court
of Appeals' decision were allowed to stand, there would be an incentive for
local governments to terminate employees upon the mere possibility of civil
litigation . Thus, those former employees would face potentially devastating
economic consequences as a result of their public service . We find such a result
unacceptable, and thus cannot infer that the legislature intended to frustrate its
central purpose in enacting CALGA.
III . Conclusion
Accordingly, we reverse the Court of Appeals and hold that KIRS
65 .2005(l) applies to both current and former employees sued in tort, so long as
the claims arise from acts or omissions occurring within, and during, the scope of
employment . The five civil actions, in the present instance, include claims
against Richardson pertaining to her employment with the Louisville Metro
Narcotics Unit as a police officer . An employer-employee relationship existed at
all relevant times the tortiOWs acts were alleged to have occurred . Thus, we
conclude that Metro Government is obligated to provide Rich@rdsoMa defense
pursuant to CALGA.
LambGfÆ’ .C .j .|AbDa0OsoO,CUnn)ngham,M}ntoO ' aRd Noble, JJ .,concur .
Schroder, ]., not sifting.
COUNSEL FOR APPELLANT :
J Key Schoen
Sales, Tillman, Wallbaum, Catlett & Satterley, PLLC
1900 Waterfront Plaza
325 West Main Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
N. Scott Lilly
Louisville/Jefferson Metro Government
Second Assistant County Attorney
531 Court Place, Suite 900
Louisville, KY 40202
Susan P. Spickard
Assistant Jefferson County Attorney
444S .5th St ., Ste 500
Louisville, KY 40202
COUNSEL FOR FRATERNAL ORDER OF
POLICE LEGAL PLAN, INC . (AMICUS CURIAE) :
Mark L . Miller
Priddy, Cutler, Miller & Meade PLLC
800 Republic Building
429 West Muhammad Ali Blvd .
Louisville, KY 40202
COUNSEL FOR KENTUCKY STATE LODGE,
FRATERNAL ORDER OF POLICE, INC. (AMICUS CURIAE) :
Mark L. Miller
Priddy, Cutler, Miller & Meade PLLC
800 Republic Building
429 West Muhammad Ali Blvd .
Louisville, KY 40202
COUNSEL FOR NATIONAL FRATERNAL ORDER OF
POLICE, INC . (AMICUS CURIAE):
Mark L. Miller
Priddy, Cutler, Miller & Meade PLLC
800 Republic Building
429 West Muhammad Ali Blvd .
Louisville, KY 40202
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