Why does OMAG have a $1,000,000 per occurrence Policy Limit when there is no limit to civil rights liability under 42 U.S.C. §1983?
OMAG is not a commercial insurance carrier. OMAG was created by the execution of an interlocal agreement, making OMAG an extension of its member municipalities. The purpose of OMAG, as authorized expressly in the Governmental Tort Claims Act, 51 O.S. §167(C), is to allow municipalities to pool their self-insured risk with one another. Id. see also City of Choctaw v. OMAG, 2013 OK 6, 302 P.3d 1164 and Bd. of Cty. Commissioners v. ACCO-SIG, 2014 OK 87, 339 P.3d 866. The extent of the municipal exposure in tort on any given incident is $25,000 per claim property damage, $125,000 (except for the largest municipalities, all of which retain all self-insured risk) for all other claims, and a total cap of $1,000,000 for any combination of claims. 51 O.S. §154.
Obviously civil rights liability under 42 U.S.C. §1983 is not subject to the limits of the GTCA. That said, under §1983, the civil rights claim must be brought against the “person” who, while acting under color of law, violated a clearly established constitutional right. The US Supreme Court, in Monell, v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) held that a local government could be considered a “person” under §1983 but only to the extent that the Plaintiff could show that the entity caused the violation of the Plaintiff’s rights. This is what is commonly referred to as the policy, practice or custom requirement and requires a showing that the entity caused the loss by some policy, practice or custom it has adopted that caused the employee to cause the deprivation of a Constitutional right. This is an incredibly high bar to clear, especially considering the dialogue to come. But, in short, it is very difficult to successfully sue a governmental entity for civil rights violations.
The real exposure in §1983 is for the individual public employee who allegedly acts under color of law to violate a clearly established constitutional right. Unlike the entity in a Monell claim, the employee enjoys the protections of qualified immunity. Unlike the entity, however, an employee is liable for their actions if those actions violated a clearly established right (Monell would attach only after the showing of a violation if, and only if, the Plaintiff could also show that the employee acted per the direction of a policy, practice or custom). Why is this the City/Town's problem if the City/Town is not a named party?
Under the GTCA, the City/Town is obligated to defend and indemnify its employee(s) in §1983 claims so long as the employee was acting within the scope of their duties under the GTCA. 51 O.S. §162. The key provision that answers the question is found in §162(A)(2) which states that the indemnification obligation is limited to the GTCA tort cap limits in §154 – i.e. to $1,000,000.
Simply put, the City/Town is obligated to defend its employees (subject to their being in the scope of employment) in §1983 claims regardless of the cost. The City/Town is obligated to indemnify its employees in §1983 claims (subject to scope of employment) up to the tort cap of $1,000,000. OMAG fully insures this liability exposure by (1) fully defending the City and employees in all claims without the defense costs eroding the limits of our liability and (2) fully insuring the City for the GTCA per-claim caps and total aggregate cap and (3) fully insuring the City and employees up to the total liability exposure that the City is legally obligated to cover of $1,000,000. OMAG tailors its limits to the taxpayer legal liabilities – nothing more, nothing less. Many commercial carriers offer higher limits and, in doing so, expose the taxpayer to higher premiums to cover a liability risk that they are not subject to. They literally are insuring a risk that does not legally exist.
This Loss Bulletin was written by Matt Love, Deputy General Counsel and Claims Director. You may contact the author at (405) 657-1400. The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney.