Rogers v. Youngstown

• Decision Date: 31 July 1991
• Docket Number: No. 90-1500,90-1500
• Citation: 61 Ohio St.3d 205,574 N.E.2d 451
• Parties: ROGERS, Appellee, v. CITY OF YOUNGSTOWN et al., Appellants.
• Court: Ohio Supreme Court

Page 205

61 Ohio St.3d 205

574 N.E.2d 451

ROGERS, Appellee, v. CITY OF YOUNGSTOWN et al., Appellants.

No. 90-1500.

Supreme Court of Ohio.

Submitted May 8, 1991.

Decided July 31, 1991.

SYLLABUS BY THE COURT

Where a political subdivision wrongfully refuses to defend a suit commenced aga inst a police officer employed by the subdivision, and the officer subsequently brings a declaratory judgment action against the subdivision to determine the subdivision's obligation to defend, the political subdivision must pay the atto rney fees, expenses and costs incurred by the police officer, both in the actio n which the subdivision failed to defend and in the declaratory judgment action. (R.C. 2744.07[A], construed and applied.)

In 1986, a physical altercation occurred between appellee, Philip B. Rogers, a police officer for the appellant city of Youngstown ("city"), and appellee's sister, Shirley Rogers ("Rogers"). It appears that appellee's and Rogers's relationship had been strained for some time prior to the altercation.

Shortly after the altercation, Rogers filed a complaint with the Internal Affairs Division of the Youngstown Police Department. Thereafter, Lieutenant Richard Lewis investigated Rogers's complaint and concluded there were sufficient grounds for charging appellee with neglect of duty and conduct unbecoming of an officer. As discipline for the altercation, appellee agreed to a loss of twenty-four hours of pay for accumulated compensatory time.

Approximately ten months after the altercation, Rogers sued appellee, the city, the city's mayor and chief of police in the United States District Court for the Northern District of Ohio, Eastern Division. Rogers alleged that the defendants violated her civil rights under Section 1983, Title 42, U.S.Code. She also asserted a pendent state claim for assault and battery.

During the pendency of the federal suit, appellee requested that the city provide him with legal counsel. However, the city concluded that appellee's actions surrounding the altercation were outside the scope of his employment and, consequently, denied appellee's request. The city suggested that appellee obtain his own counsel. Appellee then filed a cross-claim against the city in the federal action seeking defense of, and indemnification for, the suit brought by his sister. It is undisputed appellee received $1,500 from the Fraternal Order of Police Labor Council ("F.O.P.") to assist in payment of legal expenses that appellee would incur in obtaining counsel for his own defense.

On August 31, 1987, the federal court dismissed Rogers's federal and pendent state claims. Finding that appellee's cross-claim involved a state law cause of action, the court also dismissed appellee's claim.

Subsequently, appellee filed in the Court of Common Pleas of Mahoning County a complaint in declaratory judgment against the city and the Ohio Attorney General, pursuant to R.C. 2744.07(C), seeking a determination as to the appropriateness of the city's refusal to provide him with a defense as described in R.C. 2744.07(A)(1). Appellee requested that the trial court award him, as damages, costs and attorney fees in defending the federal suit and in pursuing the declaratory judgment action, and any further relief deemed equitable and just.

On March 28, 1988, the trial court overruled the city's motion to dismiss and sustained appellee's motion for summary judgment. Interpreting R.C. 2744.07(A)(1), the trial court found that the city had breached its duty to defend appellee or provide him defense counsel in the federal suit commenced by Rogers. The trial court determined that appellee suffered damages by way of attorney fees, expenses, interest and costs in providing his own defense and accordingly, the court scheduled an evidentiary hearing for April 22, 1988, to assess the amount of damages appellee sustained.

Following the evidentiary hearing, the trial court, on March 21, 1989, held that Rogers was entitled to $7,792.50 in attorney fees and $40.25 for expenses. The court ordered that interest was to be paid "at a rate of ten percent (10%) per annum from the date of each service rendered both in the Federal action and the within action and Plaintiff's costs herein." The trial court further found that the $1,500 advanced to appellee by the F.O.P. could not be taken by the city as a credit against appellee's award.

Upon appeal, the court of appeals affirmed the judgment of the trial court in all respects and remanded the cause for consideration of attorney fees incurred by appellee in defending the city's appeal.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Paul J. Gains, Youngstown, for appellee.

Edwin Romero, Law Director, and Cheryl L. Waite, Youngstown, for appellants.

Paul L. Cox, urging affirmance for amicus curiae, Columbus, Fraternal Order of Police of Ohio, Inc.

Calfee, Halter & Griswold, John E. Gotherman, Joseph A. Castrodale and Anthony J. Lacerva, Cleveland, urging reversal for amicus curiae, Ohio Mun. League.

DOUGLAS, Justice.

DOUGLAS, J. The primary question presented for our review is whether the city had a duty, pursuant to R.C. 2744.07(A)(1), to defend appellee in the suit filed in federal court by Rogers, appellee's sister. R.C. 2744.07(A)(1) provides, in relevant part, that:

"Except as otherwise provided in this division, a political subdivision shall provide for the defense of an employee, in any state or federal court, in any civil action or proceeding to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission of the employee in connection with a governmental or proprietary function if the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities. Amounts expended by a political subdivision in the defense of its employees shall be from funds appropriated for this purpose or from proceeds of insurance. * * * " (Emphasis added.)

The city contends that the court of appeals and the trial court erred in concluding that the city wrongfully refused to defend appellee in the federal action. The city argues that R.C. 2744.07(A)(1) does not impose a duty upon it to defend the appellee because appellee's admissions elicited during the internal affairs investigation and during discovery in the federal action support a finding that appellee was not acting in "good faith," and was "manifestly outside the scope of his employment." Thus, according to the city, it was "appropriate" to refuse to defend appellee or provide him with defense counsel during the federal court action. The city also argues that a duty did not exist because Rogers did not specifically allege in her federal complaint that appellee was acting in good faith. It is the city's contention that "[t]his lack of 'good faith' is the fatal flaw in [a]ppellee's case."

We believe the city's arguments lack merit. For the most part, the city chooses not to focus on the allegations contained in the complaint itself but, rather, finds support for its position by dwelling upon matters that transpired prior to and after the federal complaint was filed. In so doing, the city ignores the mandatory and disjunctive language contained in R.C. 2744.07(A)(1).

R.C. 2744.07(A)(1) is clear and unequivocally sets forth that "a political subdivision shall provide for the defense of an employee, in any state or federal court * * * if the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his [or her] employment." (Emphasis added.) As can be gleaned, the duty of a political subdivision to defend one of its employees may arise from a reading of allegations contained in a complaint filed by a plaintiff who seeks redress from the subdivision's employee. Accordingly, the question presented in the instant cause is whether the allegations contained in Rogers's complaint triggered a duty on the part of the city to defend or provide appellee with legal counsel in the federal suit.

Turning our attention to the allegations contained in Rogers's federal complaint, we answer this question in the affirmative and find that the city, pursuant to R.C. 2744.07(A)(1), did, indeed, breach a duty to defend or provide appellee with legal counsel. In the "Introduction" of the complaint, Rogers alleged that appellee " * * * unlawfully assaulted and beat Plaintiff, in violation of Plaintiff's constitutional rights, while * * * [appellee] was in uniform and on duty as a police officer of the Youngstown Police Department." In paragraph six of the complaint, Rogers averred that appellee was a "duly appointed officer of the police department" and that appellee was "acting in such capacity as the agent, servant, and employee of the Defendants." Rogers also alleged, in paragraph ten, that appellee "arrived at her home in a police department vehicle" and he was in "uniform and armed." Moreover, in paragraph twenty-eight, Rogers charged that appellee " * * * while acting within the scope of his employment by the Defendant City of Youngstown assaulted and battered the Plaintiff." (Emphasis added.)

The city's argument that a duty to defend did not exist because Rogers did not specifically set forth in her complaint that appellee was acting in "good faith" is not well-taken. We cannot conceive a situation where a plaintiff who sues a political subdivision and an employee of the subdivision would allege, in his or her complaint, that the employee was acting in good faith. Such an allegation would be incongruous with suing the employee in his or her individual capacity.

Thus, we believe that even though Rogers did not specifically allege that appellee was acting in good faith, the city unjustifiably refused to defend appellee and, for this reason, the city failed to...