York County prison inmate Elvin R. Parker. Parker suffered a fatal heart attack on May 31, 1985 while incarcerated in the county prison. In the suit filed subsequent to his death, Parker v. County of York, Civ. No. 87-0466 (M.D.Pa.), it was alleged that Parker was taken to the prison infirmary at about 10:00 p.m. suffering from symptoms of a heart attack. Medical staff on duty allegedly failed to provide appropriate medical treatment. It was also alleged that during the days just prior to his heart attack, he was denied prescribed heart medication and proper medical care.
The coverage dispute centered on two policies, a comprehensive general liability policy issued to the county by Home Insurance and a policy insuring against "wrongful acts arising out of Law Enforcement activities" issued to the York County Sheriff's Department by Imperial Casualty & Indemnity Co. (Imperial). Id. at 918.
Home Insurance denied any obligation to provide coverage on the basis of two exclusionary provisions in its policy, excluding coverage for: 1) "malpractice and professional services" -- defined to include "'bodily injury or property damage due to the rendering or of failure to render any professional service'"; and 2) "law enforcement" activities--defined to include "any loss or claim arising out of the law enforcement activities or operations" of the county. Id.
In the absence of a more detailed policy definition of what are deemed to comprise "law enforcement activities," the district court looked to Black's Law Dictionary, 796 (5th ed. 1979) and Ballentine's Law Dictionary, 712 (3d ed. 1969) for guidance. Black's defined a "law enforcement officer" as one "'whose duty it is to preserve the peace.'" Imperial, 727 F. Supp. at 918. Ballentine's defined a police officer as one "'whose duty it is to be vigilant in discovering violations of the criminal laws and ordinances and to arrest offenders.'" Imperial, 727 F. Supp. at 918. Reasoning that since Parker died while in York County Prison, his death was not caused by law enforcement activities or the acts of law enforcement personnel, the district court ruled that the exclusionary clause did not apply and that Home Insurance was obliged to provide coverage. Id.
Although Imperial involved an interpretation of a similar policy exclusion for law enforcement activities, the facts of this case compel us to reach the opposite conclusion. Here, O'Boyle remained at all times in the custody and control of the Wilkes-Barre Police. He was arrested for public drunkenness, a summary offense under 18 Pa. Cons. Stat. Ann. § 5505,
and transported by the Wilkes-Barre police from the Mercy Hospital Emergency Room to the police station, where he was placed in a holding cell. Several hours later, he was discovered unconscious. An ambulance was summoned and he was taken back to the emergency room where he died hours later.
Plaintiff's cause of action arises out of O'Boyle's treatment by Wilkes-Barre Police officers while in their custody. No other city or county employees were directly involved with him or his treatment. Police officers are plainly within the generally accepted definition of law enforcement personnel. Unlike incarceration following an adjudication or plea of guilt, temporary detention of an arrestee pending arraignment or release from custody is a law enforcement activity when performed by a police officer.
In contrast, in Imperial, Parker was incarcerated in the York County Prison. He was not in police custody when he suffered a fatal heart attack or was allegedly deprived of adequate medical care. Additionally, the exclusionary language in the Home Insurance policy was not as broad as that in the Reliance policy. The policy which Home Insurance issued to York County excluded "law enforcement activities" defined to include "any loss of claim arising out of the law enforcement activities or operations" of the county. Id. Reliance, however, excluded from its coverage any "'bodily injury', 'property damage', 'personal injury' or 'advertising injury' arising out of any act or omission of...[the Wilkes-Barre]...police department or any other law enforcement agency of...[the city]...including their agents or employees." Reliance's exclusionary language is much closer to that interpreted in Town of Wallingford v. Hartfort Accident and Indemnity Company, 231 Conn. 301, 649 A.2d 530 (Conn. 1994) as precluding coverage.
Our interpretation of what acts come within the ambit of law enforcement activities is consistent with the holdings of other courts. In Home Indemnity Co. v. Johnson County Fiscal Court, 682 F. Supp. 326 (E.D.Ky. 1987), Home Indemnity Company (Home) filed a declaratory judgment action seeking an adjudication that it had no obligation to provide coverage under a general liability policy issued to Johnson County, Kentucky which excluded liability "arising out of the ownership or operation of any penal institutions" or for injuries "arising out of the performance of...law enforcement...activities...and all operations necessary and incidental thereto." Home Indemnity, 682 F. Supp. at 327. Home argued that these exclusions relieved it of any obligation to defend or fund the recovery in a civil rights action filed by the survivors of two individuals murdered by an escapee from the Johnson County Jail. The district court found both exceptions applicable, stating, with respect to the second, that "there can be no valid argument that the operation of a jail, for the purpose of incarceration of convicted criminals or detention of accused, pending disposition of charges against them, is a component of and incidental to law enforcement." Id. at 329.
In Town of Wallingford, the Town of Wallingford filed a declaratory judgment action seeking a ruling that coverage existed under its comprehensive general liability (CGL) insurance policy for a wrongful death action filed to recover for the suicide of a pre-trial detainee arrested for shoplifting and held in the town jail. The complaint filed in the underlying action alleged liability on the part of the arresting officer and on the part of the Town of Wallingford on the basis of an alleged failure of the chief of police to train officers under his supervision and to provide equipment which would have allowed the officers on duty to administer appropriate medical attention to the detainee. The town's CGL policy excluded coverage for "Law Enforcement Activities," stating: "It is agreed that the insurance does not apply to bodily injury or property damage arising out of the activities of police personnel, police departments or other law enforcement agencies or the individual or joint action of a member or members of the police department or other law enforcement agencies in the line of duty or on behalf of or on the orders of the named insured." Id. at 532. The Connecticut Supreme Court held that the exclusion plainly barred coverage for "all activities by police personnel...as well as all activities of police departments and all activities of nonpolice law enforcement agencies in the town." Id. at 533. The court distinguished Imperial Casualty & Indemnity Co. v. Home Ins. Co., stating, that "unlike here, the applicable exclusion [in that case] was limited on its face to 'any loss or claim arising out of the law enforcement activities or operations' of the police." Id. quoting Imperial, 727 F. Supp. at 918. The exclusionary language in Wallingford's policy "has much broader effect and precludes coverage for claims arising out of any activities of the police, whether or not related to "law enforcement," the court held. "The mere fact that the allegations of the Rosado complaint revolved around events occurring within a jail, rather than during an arrest or apprehension, is of no significance. Police activities in both settings are excluded from coverage under the plain language of the contract." For those reasons, the court held that the exclusionary clause applied to bar coverage.
Pfeifer v. Sentry Insurance, 745 F. Supp. 1434 (E.D.Wisc. 1990) originated as a civil rights action filed by Deborah Pfeifer against the City of Brookfield, Wisconsin, a former Brookfield police officer and their insurers. Brookfield had a liability policy covering law enforcement activities issued by Western World Insurance Company. Sentry Insurance, a Mutual Company (Sentry) had issued a general liability insurance policy to the city. The underlying claims were settled, leaving only the question of coverage before the court. Western World defended the action under a reservation of rights and contributed toward the settlement. It then asserted a crossclaim against Sentry for contribution or indemnification. Id. at 1438.
Sentry denied any obligation to defend the suit filed by Pfeifer or fund the settlement on the basis of two exclusionary clauses in its policy which provided as follows:
Police professional liability exclusion
It is agreed that as respects police professional liability, this policy shall not apply to any liability for personal injury or property damage arising out of:
1) false arrest, false imprisonment, wrongful eviction, wrongful entry, wrongful detention or malicious prosecution; or,