Shelby County – Litigation Mitigation – Do Defense Attorney’s Words Matter?

Shelby Co., Ill. (ECWd) –

An anonymous Facebook Page in Shelby County posted three select e-mails as it relates to the Dive Team being protected under county insurance. Those appeared shortly after a FOIA request from county board member Teresa Boehm was answered.  We love it when public information is shared with the world, however, when it is then selectively shared to push a narrative, it becomes a problem.

While many are pointing to the insurance agent for the answers, we find it interesting this anonymous page did not share the emails from the insurance provider’s defense counsel or claims supervisor and senior claims adjuster discussing other key issues which matter when a serious claim is filed. Nor did they include the information shared by a board member’s discussion with the Shelby County State’s Attorney.

Defense Counsel: (emphasis added)

“Section 10 of the Workers’ Compensation Act provides for coverage for “volunteer firemen, police and civil defense members or trainees”.  No other categories of “non-employees” are specifically listed.”

Although I do not know of any cases that directly address Dive and Rescue Squad members that are not part of or affiliated with a fire department, please note that each case is addressed on its own merits.  It could certainly be conceivable that D/R members could “become” volunteers if asked, requested or called by a fire or police department that is directing operations at a scene, and therefore arguably be entitled to workers’ compensation coverage, if injured.  I do not know of any situation where they would become involved if not at the request, hiring, direction or control of the fire or police department.  If so, an argument can be made that there is no coverage under Section 10 as volunteers.

Noting Martha’s e-mail below, I suggest that their efforts are for the purposes and goals of helping the County with their rescue operation, which is a benefit to the County.  However, absent employment or volunteer coverage as discussed above, injuries sustained during the rescue would arguably not be covered by the County.

Please call or e-mail if you have any questions or if you would like to discuss this in further detail.  Thank you.”

Claims Supervisor:(emphasis added)

“The best rule of thumb to assess whether an individual can be defined as an “volunteer employee” vs “independent contractor” is to evaluate how much control the Sheriff’s Department/County has over the work/services being performed.”

“Based on the information provided by Martha, it sounds as though D/R may be considered an independent contractor and not a “volunteer employee” of the County.”

“In response to coverage for Property/Equipment/Auto – coverage would be established based on what property is scheduled (listed) under the policy. If there are no Scheduled Property Forms attached to the policy, then coverage would determined based on ownership and any contractual obligations the County may have for leased property and equipment.”

We (ECWd) previously noted the vehicles were not registered in the county’s name.

Let’s look at the questions asked by the claims adjuster: (emphasis added) 

“For the most part, coverage would exist to indemnify the County and any individually named employees and volunteers of the County for allegations of wrongdoing asserted specifically against these individuals.  Whether the D/R team is considered a County Volunteer, would largely depend on whether you can answer “yes” to any of these questions: 

• “Does the Sheriff’s Department schedule when any of these volunteers need to be “on call”?
  
• “Does the County provide any of their equipment/tools/vehicles for the D/R Team to use during rescue operations?” 
• “Has the Sheriff’s Department provided the D/R Team with a list of policies/procedures they expect to be followed?”  
• “Does the County provide any compensation to the D/R Team whatsoever? (i.e. does D/R invoice the County for their services after the operations are completed)” 
• “Is there any written contract between the County and D/R?” 

The answer to those questions is NO. In fact, as it relates to equipment and vehicles, we understand the vehicles are not in the county’s name, so if they get in an accident on the way to a call, who protects them and who covers anyone injured? While an argument can be made the equipment paid for with county funds belongs to the county, without actual documents showing they were, in fact, a county-controlled operation, it can also be argued that those funds were used to support some private entity that has no contract with the county and is not county-owned property.

Senior claims adjuster: (emphasis added)

“I will respond regarding workers’ comp. The D/R team does not need to be part of the county to be considered volunteers. If they are employees of another county or another company (a D/R company specific to what they do, not some arbitrary job), then their company typically handles their workers’ comp claims. However, if they “volunteer” to help out Shelby county – and assuming it is under the direction of the sheriff’s department (which it typically would be), if they are injured and have NO work comp coverage with their employer (if there is one for the D/R team, which typically there is not), then Shelby County will be responsible for the claim/injury. “

While there are plenty of other information contained in the emails and legal explanations for the reasoning to support the temporary shutdown of the dive team, the goal should first and foremost be about ensuring the members of the dive team and the citizens of the county are protected from potential litigation and expense.

While a communication indicated since there is a line item in a budget they are covered, that is a simple answer to a very complex legal matter.  Just because there is a line item for the funding of something does not mean the recipient of that funding is magically now covered under the county insurance. Such logic would indicate any entity that the county provides money to is now protected under county insurance, which is not the case.

We continue to hear from people that we are not attorneys, and we agree we are not, nor does one need to be to read what their own defense attorney and claims adjusters wrote.

This county board is doing the right thing and has been taking the appropriate steps to protect all involved, contrary to the narratives being pushed by a select few.

And of notable interest in this is the fact the insurance coverage issue was not first raised by board member Sonny Ross.  The narrative this entire matter is somehow some vindictive action towards the dive commander is debunked by anyone willing to read the 21 emails rather than the select 3 emails on some anonymous Facebook page.

The last email in the series of communication indicates tort immunity was a key factor in the decision to issue a stand-down directive.  We covered the tort immunity matter in this article.

Emails involved in the “litigation mitigation” efforts for members of the dive team and the county:

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