Thinking Outside The Box

Having a lawyer who knows when and how to think outside the box can make all the difference.  A small-town police officer learned this lesson recently after a woman sued him for wrongfully arresting her.  The officer thought his former employer was handling the lawsuit on his behalf, but he learned otherwise after a Court entered an order finding him in default.  The entry of default meant the officer could not challenge his liability to the woman.  To make matters worse, no one had notified the appropriate insurance carrier about the lawsuit.  As a result, the officer would likely have to pay any damages awarded to the plaintiff out of his own pocket!

Fulcher Hagler partner Scott Kelly got involved when the insurer sought his advice about the situation.  The insurer wanted to help the officer, but it had a legitimate objection to providing insurance coverage in a case that was already in default.  After doing some investigation into the underlying claim, Scott was convinced the claims against the officer were defensible and that the officer had done nothing wrong.  The problem was getting the default set aside so the case could be decided on its merits.

Scott realized that the plaintiff’s lawyer would want to collect any judgment owed directly from an insurance company because collecting a judgment from the officer could prove difficult, if not impossible.  Consequently, Scott got the insurer’s blessing to waive its objection to providing insurance coverage (for not being notified of the lawsuit) in exchange for the plaintiff’s agreement to set aside the entry of default so the case could be decided on the merits.  While there was some chance the plaintiff might win the lawsuit and collect from the insurer, the insurer trusted Scott’s analysis and was willing to take the risk.  Meanwhile, the officer was especially happy because he no longer faced having to pay an adverse judgment himself.

After completing discovery in the case, Scott found that his earlier suspicions were correct.  He filed a motion for summary judgment on behalf of the officer, arguing his client had acted properly in exercising his judgment to arrest the plaintiff.  The trial court agreed with Scott’s analysis of the issues and granted the motion, ending the case without ever having to go to trial.  The plaintiff appealed to the Georgia Court of Appeals, but it affirmed the grant of summary judgment for the officer.

In the end, a situation that once looked bleak had turned out far better than the client or insurer had initially anticipated.  Creative, confident lawyering had indeed been the difference.