Whaley v. Franklin Cty. Bd. of Commrs.

• Decision Date: 22 August 2001
• Docket Number: No. 00-1276.,00-1276.
• Citation: 2001 Ohio 1287,92 Ohio St.3d 574,752 NE 2d 267
• Parties: WHALEY, APPELLANT, v. FRANKLIN COUNTY BOARD OF COMMISSIONERS, APPELLEE.
• Court: Ohio Supreme Court

92 Ohio St.3d 574

2001 Ohio 1287

752 NE 2d 267

WHALEY, APPELLANT, v. FRANKLIN COUNTY BOARD OF COMMISSIONERS, APPELLEE.

No. 00-1276.

Supreme Court of Ohio.

Submitted February 28, 2001.

Decided August 22, 2001.

Hunter, Carnahan & Shoub, Robert R. Byard and Russell E. Carnahan, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, George Speaks and Harland H. Hale, Assistant Prosecuting Attorneys, for appellee.

Paul Cox, urging reversal for amicus curiae Fraternal Order of Police Ohio Labor Council, Inc.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging affirmance for amici curiae Ohio Municipal League and County Commissioners' Association of Ohio.

DOUGLAS, J.

On August 12, 1997, plaintiff-appellant, Pat Whaley, a Franklin County Deputy Sheriff, filed criminal charges in the Franklin County Municipal Court against Kim Tignor. Tignor was arrested and jailed. The charges against Tignor were subsequently dismissed at arraignment. It appears that for a number of years prior to the filing of the criminal charges, Tignor and appellant's family were friends. It also appears that the relationship between Tignor and the Whaleys had become strained due to a financial dispute.

On May 14, 1998, Tignor filed a complaint in the Court of Common Pleas of Franklin County against the Franklin County Board of Commissioners, "the Franklin County Local Government," and appellant, individually and as a Franklin County Deputy Sheriff. The complaint alleged that appellant had caused an arrest warrant to be issued and that Tignor had been improperly arrested and jailed. The complaint also alleged that appellant "acted maliciously, wantonly, intentionally, and with reckless disregard to [Tignor's] rights." Based upon these allegations, the complaint also charged that Franklin County government officials, through certain acts and omissions, violated Tignor's constitutional rights by failing to properly train, supervise, and discipline its police officers.

On July 29, 1998, appellant instituted this action pursuant to R.C. 2744.07(C)¹ in the Court of Common Pleas of Franklin County against the Franklin County Board of Commissioners, defendant-appellee. The county had refused to provide appellant with a defense in the lawsuit filed by Tignor. In filing this action for declaratory judgment, appellant sought an order to compel the county to provide for his individual defense in the underlying Tignor action as mandated by R.C. 2744.07(A)(1).

On November 16, 1998, appellant moved for summary judgment. Appellee failed to file a response to the motion. On March 31, 1999, appellee did, however, file a Civ.R. 12(C) motion for judgment on the pleadings. Appellant submitted a timely response.

On May 5, 1999, the trial court granted appellee's motion for judgment on the pleadings. In its entry sustaining appellee's motion, the trial court, without discussion, also overruled appellant's motion for summary judgment.

Appellant appealed the trial court's decision to the Court of Appeals for Franklin County. In a decision rendered on June 8, 2000, the court of appeals affirmed the trial court's judgment.

This cause is now before this court upon the allowance of a discretionary appeal. The primary issue presented for our review is whether Franklin County wrongfully refused to provide appellant a defense against the claims brought against him in the civil action filed by Tignor. Specifically, we must decide whether the complaint filed in the underlying Tignor lawsuit alleges sufficient facts to trigger the county's duty to defend appellant pursuant to the dictates of R.C. 2744.07(A)(1).

R.C. 2744.07(A)(1) provides:

"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."

R.C. 2744.07(A)(1) imposes a duty on a political subdivision to provide a defense for an employee in any civil action or proceeding to recover damages allegedly caused by acts or omissions of the employee in connection with a governmental or proprietary function. R.C. 2744.07(A)(1) sets forth a two-prong test to determine when the political subdivision's duty to defend one of its employees is triggered. The first prong of R.C. 2744.07(A)(1) provides that the duty to defend attaches if the act or omission actually occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities. The second prong of the test provides that the political subdivision's statutory duty to defend is triggered if the act or omission 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.

The governing case law interpreting R.C. 2744.07(A)(1) is set forth in Rogers v. Youngstown (1991), 61 Ohio St.3d 205, 574 N.E.2d 451. In Rogers, we held that "[w]here a political subdivision wrongfully refuses to defend a suit commenced against 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 attorney fees, expenses and costs incurred by the police officer, both in the action which the subdivision failed to defend and in the declaratory judgment action. (R.C. 2744.07[A][1], construed and applied.)" Id. at syllabus.

The parties do not dispute that Rogers is the seminal case for construing R.C. 2744.07(A)(1). Both parties also agree that our focus in this matter should be on the second, or more specifically, the "allegation" prong of R.C. 2744.07(A)(1). Where the dispute lies herein is in the application of Rogers to the facts of this matter and whether the allegations giving rise to this action activate the duty on the part of the county to provide a legal defense for appellant.

Appellant argues that the county was required to provide for his individual defense because the acts or omissions attributed to appellant in the complaint filed in the underlying Tignor lawsuit indicate that appellant was acting "not manifestly outside the scope of his employment." Appellant contends that there are no reasonable grounds to distinguish this matter from Rogers and that the trial court and the court of appeals, in attempting to do so, misconstrued both R.C. 2744.07(A)(1) and our decision in Rogers. We agree.

Rogers arose out of a physical altercation between Philip B. Rogers, a Youngstown City Police Officer, and his sister. After the altercation, Rogers's sister brought a federal lawsuit against Rogers, the city of Youngstown, and certain Youngstown city officials, alleging violations of her civil rights. The city refused to provide Rogers with legal counsel in the federal suit, concluding that Rogers's actions surrounding the altercation with his sister were outside the scope of his employment. Rogers subsequently filed a declaratory judgment action, 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 prescribed in R.C. 2744.07(A)(1).

In Rogers, we stated that "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." Id., 61 Ohio St.3d at 208, 574 N.E.2d at 453-454.

Relying on evidence obtained from an internal affairs investigation of Rogers and on evidence secured during discovery in the federal civil rights lawsuit, the city of Youngstown contended that R.C. 2744.07(A)(1) did not require the city to provide Rogers with a legal defense. We did not agree with the city's contentions. In reaching our determination we specifically noted that "[f]or 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)." Id. at 208, 574 N.E.2d at 453.

Based on the foregoing, we construe R.C. 2744.07(A)(1) as requiring that, in evaluating the "allegation" prong of the statute, the test to be employed is a pleadings test. In construing the same language of R.C. 2744.07(A)(1) in Rogers, we indicated that whether a political subdivision's duty to defend arises may be determined "from a reading of allegations contained in a complaint filed by a plaintiff who seeks redress from the subdivision's employee." Id. at 208, 574 N.E.2d at 453-454. However, neither R.C. 2744.07(A)(1) nor Rogers mandates that such a determination be made solely upon consideration of the underlying complaint. Thus, a court making such a determination may consider all pleadings² filed in the underlying action.

The standard for evaluating the allegations in the underlying complaint is set forth in R.C. 2744.07(A)(1). The plain language of R.C. 2744.07(A)(1) requires a political subdivision to provide a defense for an employee "if the...