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Defense Digest

Handing Over the Public’s Purse: Political Subdivision Employees, Indemnification and Assignments

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

by Joshua W. Brownlie

Key Points:

  • The Pennsylvania Supreme Court is to decide whether a third-party assignee of political subdivision employee’s indemnification rights have standing to enforce indemnification pursuant to the Political Subdivision Tort Claims Act (PSTCA); and
  • whether a federal determination that a political subdivision employee acted “under color of state law” in the Section 1983 context estops state court litigation of whether conduct was “within the scope of his office or duties” under the PSTCA. 

The Pennsylvania Supreme Court recently granted allocator in McGuire on Behalf of Neidig v. City of Pittsburgh, No. 177 WAL 2021, 2021 WL 5320893, at *1 (Pa. Nov. 16, 2021). There, the court will refine the contours of the employee indemnification provision of the Political Subdivision Tort Claims Act (PSTCA), see 42 Pa. C.S. § 8545(a), by deciding whether a federal jury determination that a police officer acted “under color of state law” is a “judicial determination” that the officer acted within the “scope of his office or duties” under the PSTCA. The court will also address whether “the criteria for indemnification under the [PSTCA must] be judicially determined in the damages action brought against the employee[.]” As well as, “[i]n a declaratory judgment action brought by an employee, is the issue of whether the criteria for indemnification under the [PSTCA] were ‘judicially determined’ in the underlying action for damages a question of law for the court to decide?” Id. The decision is likely to involve precedential interpretations of Sections 8547 through 8550 of the PSTCA. In addition, since most federal actions involving political subdivisions are brought pursuant to Section 1983 of the United States Code, the court is expected to clarify what effect federal, judicial determinations in the Section 1983 context will have on subsequent proceedings involving indemnification pursuant to the Act.

In McGuire, Colby Neidig fell victim to neighborhood vandalism. He arrived home with his wife and child to find the family’s fall pumpkins smashed. Unbeknownst to Neidig, the culprits of the vandalism, 16-year-old Shane McGuire and friends, also stacked bricks in an area close to the front door. McGuire remained on the property to observe the Neidigs’ reaction to the vandalism. After Neidig and his wife finished unloading their groceries, McGuire approached the residence and banged on the front door. While turning to flee, McGuire tripped and fell over the bricks he had stacked near to the front door of the residence. Neidig’s wife screamed, and Neidig, seeing McGuire attempting to flee, gave chase. Neidig caught McGuire a short distance from the home, at which time, Neidig knocked McGuire to the ground and punched him in the face. Neidig called 911 and detained McGuire until police arrived.

McGuire later learned that Mr. Neidig was, in fact, Officer Neidig, of the Pittsburg Bureau of Police. However, on the night in question, Neidig was off-duty, wearing civilian clothes, and did not identify himself to McGuire as a police officer.

Two years later, in November of 2014, McGuire filed suit in federal district court against Neidig in his individual capacity as a police officer, as well as the City of Pittsburgh. McGuire asserted claims of excessive force in violation of Section 1983 of the United States Code, as well as state law assault and battery claims. The district court granted the City’s motion for summary judgment and dismissed the City from the case. See McGuire v. City of Pittsburgh, No. CV 14-1531, 2016 WL 6561457, at *1 (W.D. Pa. Nov. 3, 2016). Thereafter, a jury found against Neidig on the assault and battery claims and also concluded he had violated McGuire’s constitutional rights under Section 1983. The jury specifically found Neidig acted “under color of state law” when he injured McGuire. In total, the federal jury awarded McGuire $235,575 in damages and fees.

Presumably judgment proof, Neidig assigned to McGuire his right to bring legal action against the City of Pittsburgh for indemnity under the PSTCA. Pursuant to the Act, if it is “judicially determined” that an act of a political subdivision’s employee “caused the injury,” and the action was “within the scope of his office or duties” or “the employee in good faith reasonably believed that such act was[ ] within the scope of his office or duties[,]” then the political subdivision “shall indemnify the employee for the payment of any judgment on the suit.” See 42 Pa. C.S. § 8548(a).

In July of 2017, McGuire filed an action in the Allegheny County Court of Common Pleas for declaratory relief, alleging the City’s failure to comply with its statutory obligation under the PSTCA to indemnify Neidig following the federal district court’s award. A three-day jury trial was held in August of 2019, at the conclusion of which the jury found in the City’s favor and against McGuire, concluding Neidig had not acted “within the scope of his duties” when he struck McGuire.

Dissatisfied, McGuire appealed to the Commonwealth Court. See McGuire on behalf of Neidig v. City of Pittsburgh, 50 A.3d 516 (Pa. Commw. Ct. 2021), reargument denied (May 3, 2021). There, following denial of McGuire’s application to strike, the City challenged McGuire’s standing to pursue indemnification under the PSTCA, arguing the exceptions to governmental immunity set forth in the Act are strictly construed and, since the Act permits indemnification for municipal employees, a non-employee may not seek indemnification. The court rejected the argument. Relying on a federal district court analogue, the court held “[t]here is nothing in the Tort Claims Act prohibiting an assignment of rights[,]” that McGuire had perfected a valid assignment from Neidig, and Neidig’s assignment “is consistent with the indemnification provision’s purpose ‘to permit local agency employees to perform their official duties without fear of personal liability, whether pursuant to state or federal law, so long as the conduct is performed during the course of their employment.’” Id. at 531 (quoting Wiehagen v. Borough of N. Braddock, 522, 594 A.2d 303, 306 (Pa. 1991)). Therefore, the court concluded, McGuire had standing to pursue the indemnification claim.

Next, McGuire argued the federal determination that Neidig injured him while acting “under color of state law” collaterally estops the City from litigating the issue of whether Neidig was acting “within the scope of his office or duties” as a City police officer. The court also rejected this argument and held the City was not estopped from asserting Neidig acted beyond the scope of his employment. The panel noted, “Pennsylvania courts have not explicitly ruled on the interplay between the terms under color of state law and within the scope of employment in the context of indemnification under the Tort Claims Act.”[1] Turning then to federal jurisprudence, the panel emphasized that “acting ‘under color of state law’ and acting ‘within the scope of employment[,]’ while comparable[,] are not the same.” See McGuire on behalf of Neidig, 250 A.3d at 534 (citations omitted). The panel explained that federal courts have rejected invitations to find a policer officer acted “within the scope of his office or employment” merely because the officer acted under color of Pennsylvania law. Id. (citing Zion v. Nassan, 283 F.R.D. 247, 267 (W.D. Pa. 2012), aff’d, 556 F. App’x 103 (3d Cir. 2014)). Indeed, an employee may engage in conduct “under the color of state law,” even if the conduct exceeds the limit of authority granted by the state. In contrast, when an employee assaults another person for personal reasons or in an outrageous manner, the employee is not actuated by an intent to perform the business of the employer and, therefore, acts outside the scope of employment. Accordingly, the panel found no error in the trial court’s determination that the City was not collaterally estopped from asserting that Neidig acted beyond the scope of his employment when he injured McGuire.

Finally, McGuire asserted the trial court erred when it denied indemnification absent a judicial determination in the federal court action that Neidig committed willful misconduct. Under the PSTCA, an employee of a political subdivision is not entitled to indemnification when he is found to have committed willful misconduct. See 42 Pa. C.S. § 8550. However, the panel determined it need not reach the issue of willful misconduct because the state jury properly determined that Neidig acted beyond the scope of his employment. Ultimately, the Commonwealth panel affirmed the trial court’s denial of the parties’ post-trial motions.

McGuire will have a significant impact on the indemnification provision of the PSTCA. Although briefs have yet to be submitted and argument has not yet been scheduled, if the Court’s decision in Renk v. City of Pittsburgh is any indication of how the Court will come out, similar to our federal counterparts, the Justices are sure to hold that a federal jury determination that a police officer acted “under color of state law” is not a “judicial determination” that the officer acted within the “scope of his office or duties” under the PSTCA. See Renk v. City of Pittsburgh, 641 A.2d 289, 293-94 (1994) (holding, although “willful misconduct” is synonymous with “intentional tort,” federal determination of police officer’s lability for tortious conduct consisting of assault, battery and false imprisonment, is not the equivalent of a judicial determination of “willful misconduct” sufficient to preclude indemnification under the PSTCA; “It is conceivable that a jury could find a police officer liable for those torts under circumstances which demonstrate that the officer did not intentionally use unnecessary and excessive force[.]”); compare Id. at 294 (Montemuro, J., dissenting) (“[The Majority] bases this conclusion on the premise that appellant may not have intentionally committed these intentional torts. I am unable to join such a result for I believe a jury’s determination that an individual has committed the torts of assault, battery, and false imprisonment constitutes a judicial determination that the individual has committed willful misconduct because these torts are by definition intentionally committed and are clearly outside the scope of a police officer’s duties.”). Especially in the face of a state jury finding “that Neidig had not acted within the scope of his duties when he struck McGuire.” See McGuire on behalf of Neidig, 250 A.3d at 524. Nevertheless, today the wind blows warm. Tomorrow? Who knows? More to come.

*Joshua is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 215) 575-2816 or JWBrownlie@mdwcg.com.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

United State District Court for the Middle District of Florida finds Evidence of Replacement Cost Value is Admissible and Recoverable Even When Repairs Have Not Been Made

The plaintiff filed a claim for damage as a result of Hurricane Ian. It claimed damages were over $24 million, but the carrier accepted partial coverage and paid $8,307.49 for secondary components. The carrier found hurricane damage to the building, but it was below the insurance policy’s $3.6 million deductible. The plaintiff sued for breach of the insurance policy. The carrier argued in a motion for summary judgment that plaintiff could not recover replacement cost value (RCV) because the property repairs had not been effectuated. The policy provided for RCV, but only after the repairs were completed. The carrier argued that because the repairs were not completed, the plaintiff was not entitled to RCV damages. The plaintiff argued the carrier could not withhold the actual cost value (ACV) due, which was the main allegation of the lawsuit, then fault it for not making the repairs to unlock the RCV. The United States District Court for the Middle District of Florida rejected the carrier’s argument, finding that when an insurer allegedly breached the policy by withholding coverage, it could not hide behind a repair-contingent provision to block the insured from RCV damages at trial. The court found the issue to be whether the contractual language designed to preclude certain coverage until after repairs are completed barred an insured from seeking those damages at trial when repairs were not complete. The court noted the Eleventh Circuit had not resolved this issue and neither side pointed to a definitive answer from the Florida Supreme Court. The court reasoned that it must look to the Sixth District Court of Appeal (6th DCA), which is the court which would have heard this case if it was in state court. The court noted the 6th DCA recently addressed this issue in Universal Prop. & Cas. Ins. Co. v. Rodriguez, 427 So. 3d 676 (Fla. 6th DCA 2026). The Rodriguez Court found that a breach of contract action is designed to adjudicate not only whether the contract was breached, but also evaluate the damages incurred had the breach not occurred, which the Rodriguez court found to be recovery of the RCV. This court also noted basic Florida contract principles compelled the same result, as a material breach frees the nonbreaching party to suspend its own performance and can demand the full benefit of its bargain, including RCV damages. Finally, the court found the distinction between a full denial and partial denial did not compel a different result. It found the policy required the carrier to acknowledge coverage and pay ACV for all covered damages, and the failure to do that is a material breach, entitling the insured to all of the damages available under the contract, which included the RCV.

Thought Leadership

Appeals Court Reverses Trial Court Order Awarding Attorney’s Fees Due to Lack of Evidence to Support Fee Awarded

The Fourth District Court of Appeal reversed the trial court’s order awarding appellate fees to People’s Trust Insurance Company based upon a lack of evidence to support the attorney’s fee award in RM & Assocs. Consulting, Inc. v. People's Trust Ins. Co., 2026 Fla. App. LEXIS 4654 (Fla. 4th DCA 2026). People’s Trust was the insurer of a residential property that had sustained water damage. RM & Associates Consulting was hired by the homeowner to perform mitigation services at the property. The homeowner assigned post-loss benefits to RM and RM subsequently filed suit against People’s Trust alleging that it had not been paid the money it was owed for the mitigation services. People’s Trust defended the lawsuit on the ground that the policy required the insured to notify the insurer before authorizing repairs so People's Trust could elect to use its preferred contractor. Because the owner did not comply with that provision, People's Trust asserted its liability was limited to the amount that its preferred contractor would have charged for the work, which People's Trust contended was $2,000. People's Trust paid that amount to RM before RM filed suit. People’s Trust filed a motion for summary judgment which was granted. RM appealed the summary judgment ruling and the ruling was upheld by the Fourth District Court of Appeal. The appellate court also granted People’s Trust’s entitlement to appellate attorney’s fees, subject to the trial court’s determination of the amount of fees, based upon an offer of judgment made by People's Trust. On remand, the trial court held an evidentiary hearing to determine the amount of attorney’s fees People’s Trust was entitled to. At the hearing, People’s Trust presented testimony from it’s fee expert, supervising trial counsel and appellate counsel. People’s Trust sought recovery of $24,866.17 for work performed by appellate counsel. The request primarily consisted of work performed in preparation of the answer brief. The fee expert testified that more than ninety hours spent preparing the answer brief was reasonable given the complexity and significance of the underlying issue. The appellate court found that the fee expert’s testimony fell short of meeting the necessary standard of demonstrating that the hours expended were necessary. The appellate court found that the billing records did not serve to cure the deficient testimony, as the billing records did not contain adequate details regarding the specific tasks performed. Rather the records contained entries such as “answer brief” which the appellate court found to be insufficient. The appellate court noted that neither the fee expert or counsel addressed how the prior research and briefing in the parallel litigation informed the work in the instant matter. The appellate court noted this was significant in that a court's attorney's fees award must exclude excessive, redundant, or otherwise unnecessary hours, citing Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Based upon the record failing to support the finding of the trial court, the 4th DCA remanded the case to the trial court for a reconsideration and redetermination of reasonable appellate attorney’s fees supported by competent substantial evidence. The 4th DCA reiterated that the fee expert’s focus on the quality of the work and the importance of the work to People’s Trust did not make up for the perceived deficiencies in the position that spending over ninety hours on a single answer brief was reasonable. Whether moving for attorney’s fees or challenging the amount of fees being sought by an opposing party, practitioners should be mindful of the evidence being used to support the claims being made. Parties should pay close attention to whether the hours being sought may be impacted by prior litigation either party may have engaged in. A party must be prepared to address how prior litigation efforts did or did not impact the amount of hours being claimed in current litigation. Lastly, billing records must be sufficiently detailed so as to support any potential future fee claim.

News

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Thought Leadership

First DCA Reverses Excessive Jury Award Unsupported by the Evidence

In December 2019, the plaintiffs filed a claim with Universal for damages caused by a water and sewage back up through the plumbing system and existing through multiple fixtures including the washing machine drain, kitchen sink, dishwasher, bathtub and toilet. Universal investigated the claim, issued payment for resulting water damage totaling $7,000.00 in actual cash value ($12,000.00 in replacement cost value). The plaintiffs sought additional benefits for work needed to access the below-slab cast iron plumbing system due to the failure of the system from rust, deterioration, corrosion and breaks in the line. Universal denied any additional benefits for access. In 2021, the plaintiffs filed suit. During litigation, Universal sent a plumber to inspect the home and the plumber concluded the pipes were clogged but could be cleaned. The plaintiffs’ plumber testified that the plumbing system needed to be replaced due to holes and openings in the pipes. The plaintiffs introduced two estimates prepared by Triad Restoration services totaling $79,680.22 in replacement cost value and $50,219.97 in actual cash value and an executed contract with another company for repairs with the amounts of repair redacted. Since the insurance policy did not provide coverage for repair or replacement of the plumbing system, the jury only had to decide whether the plumbing system needed to be replaced, and if it did, Universal would owe for the access costs; the jury verdict form required the jury to determine both the replacement cost value and actual cash value amounts. The jury asked if it had to rely on the Triad estimates for their amounts. The trial court advised the amount awarded had to be based on the evidence presented at trial and the law given by the trial court. The jury awarded $335,000.00 in replacement cost value or $305,000.00 in actual cash value. Universal motioned for a new trial arguing the amount awarded was unsupported by the evidence and then moved for remittitur. The trial court denied both motions and this appeal followed. The court found that while a jury’s verdict should only be disturbed with caution and discretion, the trial court must give the properly challenged award close scrutiny and determine whether it bears a reasonable relation to the damaged provided, is supported by the evidence, and could have been reached in a logical manner by reasonable means §768.74(3), (5)(d)-(e), Fla. Stat. The court found the trial court did consider the statutory requirements at the hearing on Universal’s remittitur motion and was concerned about a reasonable relation to the amount of damages proved and injury suffered and whether the award was supported by the evidence, but ultimately denied the motion, reasoning that the jury had been properly instructed to fairly and adequately compensate the plaintiffs. The court noted the only evidence providing the basis for the jury verdict was Triad’s estimates and those valued the plaintiffs' claimed loss at $79,680.22 in replacement cost value and $50,219.97 in actual cash value; no valuation evidence reasonably supported the jury verdict. The plaintiffs argued that the jury was entitled to consider more than the estimates, but the court conveyed the evidence provided did not give the jury a way to reach the amounts they awarded. The court was also not swayed by the plaintiffs’ argument regarding inflation and later price increases, but the court noted that no evidence via the contract, nor testimony regarding increase in labor, material, fuel or construction costs were entered into the record.  The court concluded the jury may draw reasonable inferences from the evidence, but it may not supply a damages number by speculation. The court did not find any of the plaintiffs’ remaining argument persuasive either. The court reversed the denial of Universal’s remittitur motion and motion for new trial as to damaged and remanded the case. The court ended its opinion with advising the trial court must determine whether replacement cost value or actual cash value is the property measure of damages under the policy and order remittitur in an amount consistent with that determination and the evidence.