A decision by the Georgia Supreme Court this month may have opened the door to more subrogation claims against law enforcement agencies that cause damage to property during non-emergency police procedures.
In a case involving helicopter rotor-wash damage to a licensed hemp grower’s crop, the justices overturned years of precedent and a lower appellate court’s decision that had given almost blanket immunity to police action
s. The high court opinion found that for non-urgent situations, the law does not automatically grant immunity from claims.
“The practical significance is a Georgia subrogation claim should no longer be dismissed solely because the property damage occurred during a law-enforcement operation,” said attorney Josh Goodman, a subrogation specia
list with the Cozen O’Connor law firm. “If a carrier pays for damage to insured property, it may be able to pursue the insured’s claim through subrogation, subject to the applicable policy language, state law, governmental defenses, and procedural requirements.”
A few other states, including Minnesota and Texas, allow similar recovery for some police-caused damages. The Texas Supreme Court in 1980 rejected the argument that simply characterizing the damage as part of an
exercise of police power automatically defeated compensation, Goodman explained.
The Minnesota Supreme Court’s 1991 decision came in a case involving an insurance company, Milwaukee Mutual Insurance. Minnesota lawmakers later
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approved statutory changes that addressed compensation owed to innocent parties whose property is damaged during the execution of a warrant or the apprehension of a suspect.
A Florida appeals court, in another insurer-brought appeal, in 2003 offered a more limited and textual opinion, noting that the state constitution requires c
ompensation only for the actual taking of property by governments, not the broader “taking, damaged or destroyed” wording seen in Minnesota and Texas, Goodman said.
Federal appeals court also have rejected compensation for damage stemming from reasonable and necessary police actions.
In the Georgia case, the owners of Blue 42 Organics, a licensed grower of hemp, argued that the company was due compensation from the Georgia De
partment of Public Safety after a helicopter operation caused some $37,000 in damage to hemp plants. A trial court dismissed the compa
y’s complaint, finding that the Public Safety crews were exercising their police powers and the suit was barred by the sovereign immunity doctrine.
The Georgia Court of Appeals confirmed the dismissal. But on appeal, the high court disagreed, pointing out that state law does not give immunity for all types of police power, only abatement of nuisances and cases of urge
nt necessity. In this case, the Department of Public Safety’s helicopter and a fixed-wing aircraft were reconnoitering the area as part of a drug interdiction operation, and no urgent action was underway.
