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Pedestrian Struck in Shoplifting Getaway

A police officer in Braintree suffered non-life-threatening injuries recently when he tried to thwart an attempted getaway by shoplifters at the South Shore Plaza. Two teenagers had tried to flee in a car being driven by another teen but were blocked by the officer in the parking lot who was on foot. The driver struck the officer with his car but collided head-on with another vehicle when he attempted to evade a pursuing police cruiser. The driver was taken into custody and charged with various offenses including assault and battery with a dangerous weapon.

Police Officers as Pedestrians

Police are often on foot and exposed to the same risks as other pedestrians in traffic, though they risk their lives in situations like the above. When injured in the course and scope of their employment like the Braintree officer, they are entitled to worker’s compensation for lost income and to have their medical expenses paid, but they may also be entitled to additional compensation for pain and suffering.

Under Massachusetts law, an employing town or municipality is to indemnify a police officer for reasonable medical, surgical, pharmaceutical, and other expenses that the officer incurred due to undergoing a hazard peculiar to the officer’s employment, and while the officer was engaged or acting within the scope of his duties. If the officer was without fault in the injury incident, he or she is entitled to leave without loss of pay.

Officers are also entitled to compensation for lost overtime and detail pay, if they suffered scarring or permanent limitations, and for pain and suffering. Further, the town or municipality paying for the officer’s lost income may not withhold taxes out of their injury or duty pay since state law does not consider compensation for injuries as wages for taxation purposes. Federal law also does not consider compensation for injuries as gross income for federal income tax purposes.

Pedestrian Injured in Hit and Run

It is possible that the city or employing municipality could assert that the officer was responsible for causing his own injuries by blocking the getaway car and placing himself in peril. However, police officers are charged with protecting the public and are expected to apprehend persons who are actively engaged in criminal activity. You can certainly argue that no reasonable police officer in the discharge of his duties would have simply stepped aside and allowed the teens to flee the scene with their stolen goods, and after apparently resisting arrest. However, a review of police department policy when officers confront shoplifters or alleged criminal suspects in a stopped car on the street or parking lot should be examined to see if the officer acted in contravention of any policy.

In cases where a fleeing suspect begins a high-speed chase, officers are instructed to not endanger motorists by pursuing them at high speeds. From the available news coverage, there is no indication that the police who did pursue the teens were traveling at a high speed or risking the safety of others.

Third Party Claim

Coverage Issues

The Braintree police officer injured in a pedestrian accident by the driver may have a claim against the driver or vehicle owner for additional compensation. However, automobile liability policies have clauses whereby they exclude coverage for intentional acts. Was this intentional or simply negligence?  Attorneys are often able to successfully argue that culpable drivers in similar cases did not intend to strike the victim or to inflict the injuries that were sustained. In the Braintree case, we might assert as the officer’s lawyer that the driver was only trying to leave the scene and had no intention of running into the officer, or that he even tried to avoid hitting the officer by swerving and accidentally struck the officer. This argument’s success might depend on whether the officer was struck head-on or was brushed aside.

Other egregious acts such as reckless driving, excessive speed, or drunk driving are not conduct that are excludable under an auto liability policy unless the driver intentionally tried to run over someone. Similarly, we could contend that the teen driver lacked intent to hurt the officer and fled out of panic.

Underinsured Coverage

If the insurance coverage is granted, then the officer can pursue compensation for any wages not paid by the workers’ compensation carrier and for pain and suffering. Should the driver’s insurance limits be insufficient to cover the officer’s damages, he could pursue additional compensation under his own personal auto liability policy if he had underinsured (UM)/underinsured coverage (UIM). His UIM coverage must exceed the driver’s limits in order for him to utilize such coverage.

Uninsured Coverage

But even if the driver’s insurance carrier, if he was insured, denies coverage for an intentional and criminal act, the officer can seek compensation under his own auto policy if he possessed uninsured motorist coverage. This is handled like any other personal injury claim except that his insurer is now his adversary and will question his own possible degree of fault in causing his injuries, as well as their severity and the reasonableness of his treatment.

Further, the medical plan or workers’ compensation insurer, or the municipality that paid for the officer’s medical expenses may claim a lien or right of reimbursement from any compensation the officer receives in an uninsured claim. However, a ruling from the Massachusetts Judicial Supreme Court prevents reimbursement for pain and suffering awards. If the award was for medical and lost wages, then it could seek reimbursement from that award or a portion of it.

In a settlement, you can indicate that a certain percentage of an award be for pain and suffering, but you cannot set aside an unduly large percentage so as to defeat the insurer’s lien claim.

Retain the Law Office of Burns and Jain

Our attorneys handle pedestrian accident cases and those involving police officers injured while acting within the scope of their duties. Talk to a  pedestrian accident lawyer at our office at (617) 227-7423 to schedule a free consultation about your injury claim.