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PORAC LDF Provides “Dream Team” Defense to Deputies Sued in Complex Civil Claim Filed by Swat Team Member Injured in Wrestling Match

Posted on Wednesday, November 01, 2006 at 12:00PM
Posted by Christopher W. Miller, Esq.

In a case demonstrating both the scope of services provided by the PORAC Legal Defense Fund (LDF) and the complex nature of civil litigation involving public safety officers, the Fund recently concluded three years of representation to several Yuba County Sheriff’s Department employees who were sued for injuries another officer claimed to have suffered while wrestling in a hotel room. Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer provided the primary representation to the deputies as part of a select team of panel and insurance defense attorneys.

On September 23, 2003, members of Yuba County’s Special Enforcement Detail (SED) team were gathered in a Morgan Hill hotel suite preparing for the annual “Best of the West” competition in Santa Clara County. Chad Ellis, the newest member of the team, was tackled onto a bed by other team members in an act of horseplay. Within a few moments, the impromptu wrestling match stopped when Ellis appeared to have been injured.

A sergeant immediately arranged for Ellis to receive medical care at a local hospital. None of the officers had intended to injure Ellis, and even Ellis attempted at first to downplay his injury.

Once the deputies returned to Yuba County, however, and reported the incident, Ellis decided to file suit in Santa Clara County alleging his fellow team members had injured him as part of a conspiracy to assault him and cause him bodily harm and emotional injury. Ellis sued Yuba County and every member of the team who had been present at the hotel.

LDF Steps In to Provide Defense when County Denies Coverage

LDF first advised the six deputies, sergeants and a lieutenant, who were named as defendants in Ellis’ lawsuit, to tender defense of the claim both to their homeowners’ insurance policies and to Yuba County. Obviously trying to distance Sheriff’s Department management from the incident, Yuba County rejected tender as to all but one of the deputies, claiming the conduct was outside the course and scope of employment, and that there would be a conflict of interest if the county were to provide representation to employees whose conduct violated department rules.

This unfortunate decision prompted the PORAC Legal Defense Fund to step in to provide representation in the civil case as well as in related administrative and criminal cases. The SED team members all were covered by PORAC LDF through the Yuba County Deputy Sheriffs’ Association and the Yuba County Management Supervisors’ Association.

The Legal Defense Fund’s plan administrator convened a meeting of the six defendants and counsel at Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer to discuss the various issues in the case, including joint representation, assignment of counsel, and overall litigation strategy. This meeting eventually led to a defense team of LDF panel attorneys, later joined by attorneys representing some of the defendants through homeowners’ insurance policies. Once this “dream team” gathered, the defense was ready for a complex course of litigation in San Jose and Sacramento that would last nearly three years.

Defense Had to Wrangle with Deputies’ Homeowners’ Insurance Carriers

An early wrinkle in the case was the decisions of the different homeowners’ insurance companies on providing coverage. Most homeowners’ insurance policies cover negligent conduct by the homeowner away from the home, but are written to exclude coverage for events that are work-related (the “business purpose” exception), or arise from intentional conduct.

In this case, two carriers provided “wall-to-wall” coverage for their insured deputy, including counsel separate from the assigned LDF panel attorney. Another carrier was in receivership and could not provide any coverage. The final homeowners’ insurance carrier provided a defense only under a reservation of rights, and later sued its insured deputies, attempting to recover fees and costs it had not actually incurred.

The denial or reservation of insurance coverage created the obvious problem that some deputies could be left without funds to pay for representation. Without insurance coverage, or having to spend money defending a carrier’s lawsuit to recover attorney fees and costs, a deputy easily could face liens, a sale of his assets, or bankruptcy. Representation by PORAC LDF acted as a “safety net” for those deputies by providing panel attorneys and the costs of defense.

Pre-trial Discovery Used to Mitigate Individual Liability

Pre-trial maneuvers in the case began with two change of venue motions we filed, seeking to move the case from Santa Clara County to Yuba or Sutter counties, where most of the defendants and witnesses lived and worked. The Superior Court denied those motions and retained jurisdiction over the case.

After several misguided attempts to obtain confidential peace officer personnel records through standard discovery, Ellis and his attorneys filed a questionable Pitchess motion seeking a laundry list of personnel records and other materials relating to the defendants, the Sheriff’s Department, and several prohibited categories of information. We opposed the motion on those grounds, and the court denied the motion as to everything but the records of disciplinary action against the officers.

These procedural moves were followed by a series of party and witness depositions, as well as written discovery requests. The defense objective throughout this pre-trial phase was to mitigate individual deputies’ liability and force the county to accept primary responsibility for Ellis’ claims. This strategy, if successful, would limit the potential damages awarded against the deputies and possibly provide a basis for a trial jury to absolve the deputies of any civil wrongdoing at all.

Essential to the defense strategy was an effort to show Ellis’ injuries occurred while he and the other deputies were engaged in activities condoned by the Sheriff’s Department. Depositions of the plaintiff, several witnesses, and the named defendants revealed the incident really was nothing more than “horseplay” of a sort engaged in by previous members of the SED team, including deputies on prior teams, who since had been promoted to senior management ranks. Ellis’ injuries were shown to have been unintentional and accidental.

Deputies Subjected to Administrative and Criminal Proceedings

Concurrent with the civil case, panel attorneys Craig Brown, Bill Rapoport, and this author defended three of the deputies against criminal charges filed by the Santa Clara County District Attorney’s Office. Yuba County Sheriff Virginia Black had seen fit to report the incident to the local D.A.’s office, which launched a grand jury investigation, subpoenaed records, and even granted immunity to a deputy in an attempt to obtain felony indictments for the injuries to Ellis. In the end, however, prosecutors settled for misdemeanor false imprisonment charges. The three deputies agreed to pay fines and perform community service rather than proceed to trial and possibly compromise the civil defense.

Steven Welty of Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer, represented most of the deputies in the department’s discipline case, reaching settlements in all but one. That case is pending appeal.

These settlements allowed the deputies to use the Internal Affairs investigation as further evidence the incident, while regrettable, had not resulted in serious discipline.

Day-Long Mediation Resolves Dispute

With the Santa Clara County civil case management system pushing the parties toward a late November 2006 trial date, all agreed to a daylong mediation in San Francisco with a private mediator. Mediation is intended to resolve even complex civil cases where the parties agree a monetary settlement may be more desirable than the uncertain risks of a jury trial. After a marathon mediation involving all parties, representatives of the insurance companies, 10 lawyers, and innumerable coffee cups, crossword puzzles, hallway conferences, and telephone calls, we finally signed settlement documents resolving Ellis v. County of Yuba et al.

The PORAC Legal Defense Fund provided a defense in this case for deputy sheriffs, sergeants and a lieutenant, who otherwise could have been without coverage or forced to reimburse an insurance carrier. The Fund also defended the criminal and administrative cases, allowing me and the other panel attorneys involved to provide a coordinated defense in a complex civil case.

ABOUT THE AUTHOR: Christopher W. Miller is a partner at Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer, who represented several of the Yuba County defendants in the administrative, criminal and civil proceedings in this case. The other panel attorneys involved in the case were Craig Brown, Bill Rapoport, Peter Stubbs and Mark Kruger.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.