Seymour National Bank v. State

ON PETITION FOR REHEARING

PRENTICE, Justice.

The ease is before us upon the petition of the Plaintiffs (Appellants) for rehearing and Defendant’s (Appellee’s) response thereto.

*204 We now grant the petition for rehearing for the purpose of clarifying our opinion of July 10, 1981 (reported at 422 N.E.2d 1223 ) and to address three issues presented by Plaintiffs’ initial brief, and which were inadvertently omitted from our prior opinion, to-wit:

“2. Whether the existence of liability insurance which provides coverage for the losses claimed by the plaintiffs, constitutes a waiver, to the extent of the limits of insurance coverage, of any immunity granted by IC 34-4-16.5-3(7).

“3. Whether IC 34-4-16.5-3(7) is unconstitutional as violative of Section 12 of Article I of the Indiana Constitution which guarantees all persons a remedy for injuries to their person and property. “4. Whether IC 34-4-16.5-3(7) is unconstitutional in that it denies the plaintiffs equal protection of the law by granting privileges and immunities prohibited by Section 23 of Article I of the Indiana Constitution and Section 1 of the Fourteenth Amendment of the United States Constitution.”

MODIFICATION OF PRIOR OPINION

We continue to reject Petitioners’ claims that the Legislature merely codified the case law when it passed Ind.Code 34-4-16.-5-3(7). The language of the statute as amended is clear. 1 The State of Indiana and its employees are not liable for losses resulting from the enforcement of or failure to enforce a law, unless such enforcement constitutes false arrest or false imprisonment. It does not follow, however, that the statute necessarily grants immunity for all acts of law enforcement officers committed while engaged in the enforcement of the law. If the injury in question resulted from the enforcement of a law, immunity is granted to both the governmental entity and to the employee, notwithstanding that the enforcement resulted in a loss that would not have occurred but for the negligent manner in which the duty was performed. However, an employee’s acts, although committed while engaged in the performance of his duty, might be so outrageous as to be incompatible with the performance of the duty undertaken. In such a case, it cannot be said that an injury resulting therefrom resulted from the performance of the duty. Such acts, whether intentional or willful and wanton, are simply beyond the scope of the employment. 2

Plaintiffs characterize our determination, that the statute is not ambiguous and must be given its plain meaning, as being prejudicial to the public interest in that it immunizes governmental entities and its employees from all liability for all losses that result from any act which can possibly be Characterized as enforcement of the law. We cannot agree. Our interpretation does result in the grant of such immunity for losses that result from any act which can properly be characterized as enforcement of the law, but we do not regard this as being against the public interest, and it is clearly a matter that the Legislature may determine. With regard to those acts that are so incompatible with the performance of duty as to be outside the scope of the employment, there is no statutory grant of immunity either to the employee or to the governmental entity, which has no need for it, inasmuch as there is no basis for liability in it.

*205 The issue which the trial court faced and which we face in review of Defendant’s motion for summary judgment is whether a jury could have found from the facts construed in a light most favorable to Plaintiffs that the losses sued for resulted from acts of Trooper Richey for which Defendant, the State of Indiana, was liable. It is clear that even if the accident resulted from the negligence of the trooper for which the defendant would otherwise be liable, it was, nevertheless, immune under the express terms of the statute.

We now turn to a consideration of the previously omitted issues:

ISSUE II

Plaintiffs contend that liability insurance held by the defendant would reimburse it for any loss that it might sustain by reason of an adverse judgment herein and that the immunity granted by the statute has been waived, to the extent that losses are reimbursable, either by the' statutory authorization for such insurance, contained in the Tort Claims Act, or by considerations of public policy favoring the spreading of losses by means of insurance. We find no merit to this argument, as the determination of public policy is the prerogative of the Legislature, and there is nothing about the Tort Claims Act providing for such waiver or expressing such a public policy.

Additionally, although Defendant by an answer to interrogatories, acknowledged the existence of liability insurance with respect to the accident, neither the question nor the answers compel the conclusion that the insurance was an unconditional agreement to indemnify.

ISSUE III

Petitioners contend that Ind.Code § 34-4-16.5-3(7) violates Article I, Section 12 of the Indiana Constitution:

“All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”

A similar challenge was advanced and correctly rejected in Krueger v. Bailey, (1980) Ind.App., 406 N.E.2d 665, 670-71 .

ISSUE IV

Lastly, Petitioners contend that Ind.Code § 34-4^16.5-3(7) violates the Equal Protection Clause of the Fourteenth Amendment:

“Plaintiffs submit that there is no rational basis for a classification which immunizes an employee of a governmental entity, with or without statutory arrest powers, for damages caused by his conduct while leaving all other citizens of the State, who are not employed by a governmental entity, liable for damages resulting from their conduct in exercising their right to enforce the law.”

Petitioners’ argument assumes that the statute applies to cases which are not before us. His complaint was not against a citizen but against the State.

The petition for rehearing is granted. The judgment of the trial court is affirmed.

GIVAN, C. J., and PIVARNIK, J., concur.

DeBRULER, J., votes to grant rehearing and reverse the trial court.

HUNTER, J., concurs in part and dissents in part with opinion.

. Other state Legislatures have created liability for the negligent operation of a vehicle. Mich. Comp.Laws Ann. § 691.1405 (West 1968) (all employees, agents, and officials driving state owned vehicles); Minn.Stat.Ann. § 375.31 (West 1968) (county may indemnify officer for damage caused by negligent operation of a motor vehicle); N.Y.Gen.Mun.Law § 50-c (McKinney 1977) (policemen and firemen other than the City of New York); Pa.Stat.Ann. tit. 42 § 5522 (Purdon 1980) (notice of claim against municipality for negligence of employee).

. For a consideration of factors determinative of whether or not questionable acts of the employee, were within the scope of employment, see Restatement of the Law 2d, Agency, §§ 228-237 and 245.

Some jurisdictions have held that governmental entities are not liable for injuries occasioned by the use of excessive force by police officers engaged in the performance of their duties upon the theory that such action is outside the scope of their duties. Annotation at 88 A.L. R.2d 1330.