Legal Update

Personal use of county vehicles increases potential liability

Legal Update

ACA 21-9-301 provides statutory negligence immunity to counties. In addition, the Arkansas Supreme Court has held that the immunity provided in ACA 21-9-301 also applies to the officials and protected by the statutory immunity normally afforded a county and its officials and employees. If judgment is rendered against employees of the county [Doe v. Baum, 348 Ark. 259, 270 (2002); See Cousins v. Dennis, 298 Ark. 310 (1989)]. However, there is a limited exception to the tort immunity of counties and their employees, and that rests in the area of automobile negligence and liability.

Arkansas law requires counties to carry minimum liability Brandy McAllister limits of $25,000 for injury or death of one person, up to Risk Management $50,000 per accident if more than one person is injured and Legal Counsel $25,000 for property damage per accident [ACA 21-9-303(a)]. The county and its officials and employees are not immune to the extent they have insurance. Thus, if a county carries the minimum liability limits, it is immune from suit above and beyond those limits. Similarly, if a county elects to purchase additional coverage, its immunity exists above and beyond those higher limits.

This means that counties, county officials, and county employees are statutorily immune from motor vehicle negligence liability exceeding $25,000 bodily injury per person, $50,000 bodily injury per occurrence and $25,000 property damage per occurrence, unless waived by the purchase of additional insurance.

However, there is a stipulation to when county officials and county employees are protected by these immunities: at the time of the accident the official or employee must have been working in the course and scope of his county employment. [Carlew v. Wright, 356 Ark. 208, 216 (2004), See Cousins v. Dennis, 298 Ark. 310 (1989)].

If an official or employee uses a county vehicle at a time other than when he is working on official county business, he is potentially exposed to additional liability over and above the auto protection provided by the county’s insurer or selfinsurance risk pool. For example: A county official takes his vehicle home every night, and on the way home he stops to pick up dinner. When leaving the restaurant parking lot, he causes an accident that results in a lawsuit against him. Since the official was not operating the vehicle within the scope and course of his employment at the time of the accident, he is not the official in excess of the policy limits on the vehicle, most likely state minimum limits of $25,000/50,000/25,000 as discussed above, then the official would be responsible for payment of the excess judgment. Using our example, if the plaintiff was awarded judgment against the official in the amount of $60,000 for bodily injury of one person and the protection limits were $25,000, then the county official would be responsible for payment of the excess judgment of $35,000. “If an official or employee uses a county vehicle at a time other than when he is working on official Additionally, if an official or employee uses a county vehicle while he is working, but he uses the vehicle for a noncounty business, he is potentially exposed to additional li- work related purpose, there is also potential liability over and above the auto protection provided by the ability exposure. For excounty’s insurer or self-insurance risk pool.” ample: a county employee is at work and driving a county vehicle, he decides to drive to WalMart or run several errands on his lunch break in the county vehicle, and in the process he causes an accident. The accident results in a lawsuit, and judgment is rendered against the employee for $55,000 for bodily injury of one person. Even though the accident occurred during the county employee’s workday, the fact that he was driving to take care of personal business can put him outside of the course and scope of his employment for tort immunity purposes. This means the county employee would be liable for the amount of the judgment in excess of any available coverage amount. If the policy would pay $25,000, then the employee would be personally responsible for the difference of $30,000. The best way to ensure that county employees and officials who drive county-owned and insured vehicles outside of the course and scope of their employment duties are adequately protected is for each driver to check with his own personal auto insurance carrier and find out if his policy provides secondary coverage for him if he is driving another vehicle.