Written by Virginia Lawyers Weekly
November 15, 2010
Fletcher v. Commonwealth (Apgar, J.) No. CL10000921-00, September 24, 2010: Roanoke City Cir.Ct; Paul G. Beers for plaintiff; Stephen M. Hall, AAG, for defendant. VLW 010-8-211, 6 pp.
A state prison guard being sued in a federal complaint alleging abusive treatment of inmates is entitled to a defense provided by the commonwealth, and a Roanoke City Circuit Court grants summary judgement to plaintff prison guard on this point.
Turning to the allegations of the federal complaint, wherein plaintiff is among the defendants, while the actions ascribed to him would be intentional unlawful acts, if proven, they occurred during his acting the course and scope of his employment as a prison guard. Further, even using the commonwealth’s argument of interpreting the Risk Management Plan by only the four corners of the federal complaint, the federal compaint itself shows that plaintiff’s accuser “repeatedly alleges that Warden Terry, the highest level government official at the Botetourt Correctional Unit, authorized or ratified Officer Fletcher’s purportedly abusive treatment of inmates.” If Warden Terry’s actions qualify as “authorization” then the plaintiff is entitled to protection against liability. Further, if the Attorney General still declines representation, as it appears he may, plaintiff would be entitled to payment of attorney’s fees and expenses incurred in defending him.
Therefore, defense of plaintiff must be provided by the Office of the Attorney General (or provision made for defense by independent counsel). This court has previously stated that it could see no reason why the Plan here should be treated any differently than the VaRisk 2 Plan, a similar insurance plan for local government use. Therefore, based on the previous opinion and the VaRisk 2 Plan, the instant Plan should be interpreted like an insurance contract.
The commonweath’s argument, that the language of Section III of the Plan is in the disjunctive, is incorrect. In this case, the Plan should be interpreted in the light most favorable to plaintiff, that is, in the light most likely to result in a Plan-provided defense in the underlying suit.