QC
FEATURE
LAW
Scrutiny of Officials Liability Insurance coverage faces increasing exposure by ‘anti-riot law’ by Matthew Kelly Florida League of Cities
P
ublic Officials Liability is one of the most important liability coverage for cities. It covers cities for liability (claims and/ or lawsuits) arising from errors and omissions, employment practices and land-use decisions, among other alleged wrongful actions or inactions by a city official or employee. These types of liability lawsuits can be extremely costly since, in many cases, there are components of the suit that allege violation(s) of civil rights – bringing the lawsuit into federal court where sovereign immunity legal protections to cities (in Florida, liability caps of $200,000 per person/$300,000 per occurrence) no longer apply. Recently, there has been enhanced scrutiny on city governments across the United States that has led to increased frequency and severity of Public Officials Liability lawsuits. A few of the key drivers are: ‣ Heightened awareness and sensitivity by the public of their civil rights ‣ Media coverage of cities’ actions and/or inactions relating to the COVID-19 pandemic ‣ Employment law matters relating to COVID-19 such as medical leave, return-to-work and terminations ‣ Media coverage of municipal law enforcement agencies’ actions – past and present ‣ Social media platforms providing broad public access to communications to or from city officials ‣ The enhanced partisan divide on many issues, including historically nonpartisan issues such as public health ‣ The ever-increasing transition from hotel to person-toperson lodging bookings, bringing more focus on shortterm vacation rentals ‣ Broad public records laws giving access to individuals and reporters to cast wide information-request nets into the past to search for the next headline story.
48 QUALITY CITIES | THIRD QUARTER 2021
ENTER STATE’S COMBATTING PUBLIC DISORDER ACT
On April 19, 2021, yet another exposure not protected by sovereign immunity can be added to the list with the passage of Florida’s Combatting Public Disorder Act – also referred to as “HB-1” or Florida’s new “anti-riot law.” This new controversial law aims to mitigate the potential for lawful and peaceful demonstrations from becoming unlawful and violent. The law defines a riot, changes municipal law enforcement budgeting policies and creates new criminal penalties for riot participants. As it pertains to liability exposure, the law also opens the door for unlimited liability if a city does not appropriately respond to a riot: “A municipality has a duty to allow the municipal law enforcement agency to respond appropriately to protect persons and property during a riot or an unlawful assembly based on the availability of adequate equipment to its municipal law enforcement officers and relevant state and federal laws.” The law further explains that, should this new duty be breached, the city may be held liable for any and all damages proximately caused by the breach of duty. And these damages are now infinite and without the protection of the $200,000 per-person/$300,000 per-occurrence sovereign immunity caps. Even if the city has insurance, the limits of insurance may not be adequate to cover the damages. Matthew Kelly is Assistant General Counsel at the Florida League of Cities. QC
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