(Article from Insurance Law Alert, February 2020)
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The Nebraska Supreme Court ruled that a professional services exclusion did not apply to civil rights claims against a county and law enforcement officers. Gage County v. Employers Mutual Casualty Co., 304 Neb. 926 (2020).
Six individuals who spent nearly two decades in prison for crimes they did not commit alleged civil rights violations against Gage County, several county offices and certain individual law enforcement officers (collectively “Gage County”). Gage County thereafter sought defense and indemnity under a general liability policy and an umbrella policy issued by Employers Mutual Casualty Company, both of which contained professional services exclusions. A Nebraska district court granted the insurer’s summary judgment motion, ruling that the exclusions barred coverage. The district court reasoned that “professional services” encompasses conduct that involves specialized knowledge, training and experience, including law enforcement services. The Nebraska Supreme Court reversed.
The parties disputed the correct legal standard for determining whether underlying conduct constitutes “professional services.” Gage County argued that “professional” must be interpreted in accordance with case law involving Nebraska’s statute of limitations for professional negligence claims, Neb. Rev. Stat. § 25-222 (2016). In contrast, the insurer argued that insurance case law involving professional liability policies was controlling. The court declined to resolve this dispute, stating that “[t]his case does not require us to import definitions from our case law to answer the question of whether law enforcement is considered a profession, because the plain language of the [Employers insurance] policies answers that question.”
The court explained that when the Employers policies are read together “as a whole,” it is clear that the professional services exclusions are not intended to apply to acts of law enforcement. Although the general liability policy did not define “professional services,” the umbrella policy and a linebacker policy (not at issue) contained a list of professions encompassed by the exclusion which did not include law enforcement. In addition, the umbrella policy listed law enforcement as an “occupation” under a separate occupations liability exclusion. According to the court, these provisions indicate that the parties understood law enforcement to be outside the scope of the professional services exclusion.