In Berry v. Commerce Insurance Co., which was decided on October 25, 2021, the Massachusetts Supreme Judicial Court found determined that the insurance company had to provide coverage for a police officer’s damages after a fellow police officer struck him with his personal motor vehicle. Commerce’s insured, Officer Sheehan, was a 14-year veteran of the Raynham Police Department and was a certified firearms instructor. On the day of the accident, he was being paid to conduct a firearms training session for fellow officers at a gun range owned by the town of Raynham. Officer Berry was one of the attendees at this training session, which was mandatory and for which he was being paid by the town.
During a paid break, Officer Sheehan left the range to purchase lunch at a nearby store. Other officers remained at the range, including Officer Berry who was seated outside at a picnic table. Upon returning to the range, Officer Sheehan drove his personal motor vehicle “too fast”, stopped, but then proceeded toward Officer Berry. When Officer Sheehan applied his brakes, his tires spun, his vehicle slid, and it ultimately struck Officer Berry. The claimant’s leg was pinned between the picnic table and Officer Sheehan’s vehicle, and he sustained serious injuries.
Officer Berry sought recovery for his damages from Commerce as Sheehan’s insurer. In response, Commerce denied coverage on the grounds that, as a public employee, Officer Sheehan was acting within the scope of employment, and therefore personally immune from tort liability under the Massachusetts Tort Claims Act (G. L. c. 258, § 2). Officer Berry sought a declaratory judgment that Officer Sheehan was not immune. The Superior Court concluded that Commerce was liable because Officer Sheehan was not acting within the scope of his employment. On appeal, the SJC agreed.
In its decision, the Court considered and applied a three-factor test for determining whether a person is acting within the scope of employment, which has been used several times before. See Clickner v. Lowell, 422 Mass. 539, 542 (1996); Pinshaw v. Metropolitan Dist. Comm., 402 Mass. 687, 694-695 (1988); Wang Labs, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986). The three factors are: 1) whether the conduct is of the kind the employee is hired to perform; 2) whether it occurs within authorized time and space limits; and 3) whether it is at least in part motivated to serve the employer. The SJC determined that the incident occurred within authorized time and space limits. Although the first prong—whether the Officer’s conduct was the kind he was hired to perform – was mixed, the SJC held that the unsafe manner in which Officer Sheehan drove his vehicle was not within the duties that he was hired to perform as a firearms instructor. Even though the incident occurred during a “working lunch,” Officer Sheehan’s egregious driving took it out of the scope of his employment.
In so holding, the SJC rejected Commerce’s argument that it should apply the standards for police officer compensation for work-related injuries established by G. L. c. 41, § 111F (“in the performance of his [or her] duty”), or the workers’ compensation act, G. L. c. 152, § 26 (“arising out of and in the course of his [or her] employment”). The decision highlights the differences in the scope-of-employment test for purposes of vicarious liability in tort and worker’s compensation. Although Officer Berry was entitled to receive benefits under c. 41, Officer Sheehan’s dangerous driving was not motivated, even in part, by an intent to serve the police department. As such, the immunity provision of c. 258 provided no defense to Commerce as Officer Sheehan’s auto insurer.
To read the full Opinion, click here.