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COLEMAN v. FRIERSON

September 30, 1985

SAMUEL COLEMAN, PLAINTIFF,
v.
GORDON FRIERSON, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Samuel Coleman ("Coleman") prevailed against each of three defendants (the only ones remaining in the case) in this 42 U.S.C. § 1983 ("Section 1983") action, brought to challenge (a) Coleman's firing as Special Investigator for the Village of Robbins ("Robbins") and (b) his later arrest on charges of impersonating a police officer. After entry of a default judgment in Coleman's favor as to liability, a jury trial was held solely to determine Coleman's damages. Verdicts were returned:

    1. against former Robbins Mayor Marion Smith
  ("Smith") for $250,000 in compensatory damages for
  physical, mental and emotional injury and $100,000 in
  punitive damages;
    2. against former Robbins Police Chief Gordon
  Frierson ("Frierson") for $125,000 in compensatory
  damages for physical, mental and emotional injury and
  $100,000 in punitive damages;
    3. against Robbins for $34,000 in lost wages and
  $14,842 in interest; and
    4. against Frierson and Smith jointly and
  severally, for $3,000 in compensatory damages for
  legal and medical expenses.
  After this Court (in the "Opinion," 607 F. Supp. 1566 (N.D.Ill. 1985)) denied (1) defendants' alternative motions for a judgment notwithstanding the verdict or for a new trial and (2) Smith's and Frierson's motions to vacate the default judgment, Smith and Frierson appealed those rulings. During the pendency of the appeal, Coleman, Smith and Frierson filed a joint motion in this Court to require Robbins to indemnify Smith and Frierson pursuant to Ill.Rev.Stat. ch. 85, ¶ 9-102 ("Section 9-102"). This Court raised a question as to its jurisdiction to decide the indemnification motion, given the pendency of the appeal, and suggested that movants consider applying to the Court of Appeals for a limited remand to deal with the indemnification question. They did so, and the Court of Appeals entered such an order September 3, 1985, also staying proceedings on the appeal pending action by this Court. For the reasons stated in this memorandum opinion and order, the joint motion for indemnification is denied.*fn1

Robbins' five-page submission is appallingly shallow, dealing not at all with any of the conceptual difficulties posed by the motion. It chooses in principal part*fn2 to appeal to this Court's discretion and sense of fairness. It urges indemnification is not proper in a case such as this, where Smith and Frierson were as much to blame for entry of the default judgment as Robbins was. Allowing indemnification here, Robbins Mem. 4 says, would set a dangerous precedent:

  Simply put, that rule would provide that where a
  governmental officer is named a defendant in a civil
  rights case in both an individual and official
  capacity and a default judgment is entered against
  that officer, his governmental employer must
  indemnify him irrespective of his conduct and
  diligence in participating in the defense of the
  action.

Under such a regime, Robbins continues, the officer would have every incentive to frustrate the progress of the lawsuit in the hope of a default judgment.

Whatever the merits of that argument,*fn3 the issue of indemnification is not a function of this Court's views of fairness or of the exercise of its discretion as an equity chancellor. Instead it is purely a matter of state law. Section 9-102 speaks in mandatory terms:

And if there were any question as to the scope of Section 9-102 in the context of a Section 1983 action, that question has received a definitive answer earlier this year in Kolar v. County of Sangamon, 756 F.2d 564 (7th Cir. 1985). After categorizing Section 1983 actions as giving rise to "tort judgments," Kolar, id. at 567 went on to deal with the potential coverage of punitive damage awards by Section 9-102:

  As a general rule, local public entities are immune
  from punitive damage awards in civil rights actions.
  See City of Newport v. Fact Concerts, 453 U.S. 247,
  101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Bell v. City
  of Milwaukee, 746 F.2d 1205, 1270 (7th Cir. 1984). It
  is clear, however, that a local government entity's
  "immunity from liability, including liability for
  punitive damages, may be waived by federal or state
  law." Bell, 746 F.2d at 1271; see Owen v. City of
  Independence, 445 U.S. 622, 647-648, 100 S.Ct. 1398,
  1413-1414, 63 L.Ed.2d 673 (1980). This Court held in
  Bell that the indemnity afforded government employees
  under Wisconsin law waived the City of Milwaukee's
  immunity with regard to suits by City employees
  seeking indemnification for punitive damage awards
  obtained against them under 42 U.S.C. ยง 1985. 746
  F.2d at 1271. Section 9-102 similarly waives the
  defendant County's immunity from Section 1983
  punitive damage awards. The failure of Section 9-102
  expressly to authorize recovery of a punitive damage
  award from a local public entity in Illinois does not
  bar such a remedy. In Bell we ruled that the
  Wisconsin indemnity statute, which applied generally
  to all "judgments," authorized indemnity suits for
 ...

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