you please the court my name is steven gray i am the attorney for the appellant in this case scott robinette and today we're here for the court to consider a statute from the indiana legislature and interpret that statute which requires the payment of legal fees and costs when a public employee has been sued alleging that he question first of all that particular argument really does not address the interpretation of the statute it's a consequence of the adopting the city's interpretation and i said that if mr robinette had done nothing he would have been defaulted under the city center under the point of styria which was car mack and they allege that he was acting in the scope of his employment and acting under color of wall the city responded by saying that collateral sto will only applies if the elements were necessarily determined at the default level well the problem with that is is the city is suggesting that if mr robin had taken a default judgment or allowed a default judgment be taken against him that the litigation would continue with the rest of the defendants and then some time after the case they wanted to come back in and really litigators the proceedings supplemental stage whether or not he was acting in the scope of the employment well there's already been a default judgment to that extent to that answering that question i'm not sure that the court would entertain that litigation since the city had the opportunity to defend on that and initially so i don't think it conflicts chance of the court's question but in this case mr robinette was named as a defendant only for one reason and that is that he was a public employee employed by the city of or by the city even apples or by in an effort metropolitan police department he was required to defend against a claim that he acted in the scope of his employment and under color of law violate somebody's civil rights the construction of the statute that mr robin ed is advocating does not require this court to insert any additional modifiers or words or imply or insert any kind of modifying phrases the statute can be read just as it's written it's consistent with the language used by the legislature the plain ordinary meaning of the statutory e political entity is required to pay the judgment and the circumstances under which the political entity is required to indemnify the public employee for his legal costs the same true said of the same cannot be said to be true of the city's construction in order to accept the city's construction of the statute they're asking this court to in certain words or phrases into the statute which are not there let me give the court an example on page nine of their brief the city argues the use of the phrase quote shall also pay in the costs of the of the defense sections so indicates that the city must first be required to pay the judgment for me clarify that they're saying the legislature use the words also pay their saying ergo they must have also already had to pay something else you can't also pay something unless you previously paid something that's their argument in other words they're saying that in less the political entity has in fact paid a judgement the phrase also pay indicates that they don't have to wanting the court to modify the statute to read the clue costs of defense shall be paid in defense of a indemnification was voluntary and it was under the old statute but when our indiana legislature amended the statute to make it mandatory that i believe that the correct interpretation is that they're making the payment of legal costs mandatory as well the language is shall also pay the cost of defense one other thing if the court looks at the page two of the city's brief this is the phrase that they're asking this court to insert in the statute under their statement issued they say when it has to indemnify a judgment comma a city quote shall also pay all costs and fees incurred by or on behalf of a public employee in defense of the claim sued nowhere does the statute say when it has to indemnify a judgment statute doesn't say that that's what the city says they're asking this court to insert that into the interpretation of the statute that's not require were the the rule of construction is that the legislature intended to use the words they did and so they thank you or in this case they did not insert claim or when it has to indemnify judgment and i believe that robin its interpretation you don't have to engage in those gymnastics thank you thank you very much course i think that the simplest way to think about this statute is to think about what the general assembly was attempting to accomplish here in those instances where the taxpayers would be on the hook for a judgment the tax payers are the primary beneficiary of any defense and they should have to foot the bill for that maybe you should start with the statutory language and i think the starting point to analyze the language is is the indemnification obligation the obligation to indemnify a judgment and it says that taxpayers are responsible for pain in the languages any judgment other than poor punitive damages of the claim or suit and that begs the question what claim or suit are we talking about and the statute provides that above it's those claims or suits where the public employee is or could be subject to personal civil liability i'd like to direct your attention to the is or could be subject to personal civil liability the statute so in a state of moreland what with this court held is that is or could be essentially contemplates of two classes of public employees if i have committed some sort of wrongful act i'm not liable yet but i'm the city would not be automatically liable for the chechnyan because the scope of from plymouth would not necessarily have been decided can you give me an example of a scenario where a police office rules he found liable than under color of wall and i don't you know i'm trying to think of a specific example of perhaps a of a police officer and i think the example is actually the inverse of what you're talking about where the officer would be under color wall but now i'm sorry it would be within the course of complaint but may not be under color of law and in this court has not held specifically with respect to the indiana statute or with the parallel on oystercatchers that those two tests are saying under color of law and in ind within the scope of his employment and also that he did not commit the challenge yet if both issues went to a jury are you arguing that the city would have no responsibility for defending the officer depending on which ground the jury relied on finding in his favor because that really seems odd because speck you know  just one of many ways of defending a claim in the statute seems to cover fees criticizing claims so i think if i understand your question correctly that situation wouldn't come up because scope of employment will never be an element of a federal civil rights claim under color of law would be but it's course endianness test for the course and scope of employment would only be a claim in the case if there was either a vicarious liability claim brought against the city or if the employee crossed claimed against the city under section thirty four thirteen for one asking for a defense and in either of those circumstances that issue would never be left for a default the city would actually be made a party that issue would be  understand him to be suggesting that there was a claim under section thirty four thirteen four one in the case it was in his jurisdictional statement on appeal where he seems to indicate that mr abbott believes there was some claim under thirty four thirteen for one over which the district court had supplemental jurisdiction and we don't contest that the district court would have had supplemental jurisdiction over that claim had it been pled we just simply point in our apple e's brief to the pleadings to show that there is in fact no such claim in  i don't know you know the city claims to be concerned about having to defend officers who commit acts outside the scope of employment and there's that hypothetical on patients thirteen to fourteen immediately and ask the court to dismiss such a path hopefully frivolous claim i mean just doesn't seem like a real problem or an expensive problem but it but if it's frivolous it takes very little to get it dismissed if it's not for of live then the quickly such a language would fire the city to defend the officer and i think i think there are two responses set of first one it is i think the shortest one which is just that the course and scope of employment in that claim remember under these these federal civil rights claim that would never be an element of the claim against the officer that would only be an element of a claim in that case if they brought a vicarious liability claim against the city so the city would be a party in that case anyway and would defend that issue but the more important because there's an allegation of course and scope and i think that has to be the answer or else taxpayers would be exposed to all sorts of liability in cases where someone is clearly outside the scope and simply because an erroneous or incorrect allegation is made in the complaint taxpayers would be left in the bill regardless of what the litigation having made that concession i think is their textual problem because the defense obligation then comes and says much like the indemnity obligation the governmental entity shall also pay all costs and fees incurred by or on  for the judgment the employee that has been nothing defending the claim and i don't i had a terrible time understanding that the city's response you know which what the brief was getting at i mean how could a police officer take an action under color of state law without also acting within the scope of his employment i mean if you can come up with an example i'd be grateful we  e to a case that this court decided under the indiana and if occasion statute making the point that a state's test for scope of employment and under color of law are not the same test and so that it's not just that that issue wouldn't necessarily be adjudicated it would never would be if there was a vicarious liability claim against the city and that happened here in the city prevailed on that claim so the city in this case litigated course and scope of employment so had for instance in this case mr robinette taken out of all judgment on the section nine hundred claims the city would have still been the case it would have still litigated courts in scope with employment on the vicarious liability claim play against the city that issue would never be left for evolution  you know i don't even understand why you're taking the city takes the position it takes who would want to be an indianapolis police officer is the city's going to have banded you when you are falsely accused of money although this isn't a particularly egregious necessarily case where the officers behaviors egregious the issue isn't whether it's egregious the things that trigger our obligation or whether they were in the course and scope of employment and what are the actions that we would we would urge that th judge young's post judgment or thank you very much let's see how much time thank you actually two minutes and thirty seconds you see have they tried to show oh it it's right here thank you i just want to address two things talk a little bit about the scope of employment first of all in this case yes it was easy for a scope of employment to be determined at the summary judgment stage but that's not the way it is in all cases you could easily have a situation where the scope of employment might not be determined it until the jury gets the question because there could be conflicting testimony about the act that the police officer committed and so and under the city's a view of the statute they would then be taking the risk by not entering the defense for the police officer that the jury was going to come back and decide the route that the officer didn't act in the scope of employment but if the jury decided the other way because they did they resolve the facts in in favor  of the scope of employment the city has not given any kind of defense to the police officer i don't think the legislature intended political entities to be playing russian roulette in terms of deciding whether or not they're going to be defending their officers and then the next thing i want to do address was a you ask a question about israel could be subject to and the state of maryland discussed that a little bit and basically the state of maryland said that they believed that the state legislature indemnification or defense i think that once the statute was changed it's clear that it's it shall pay any judgment and shall pay the defense of legal costs and i believe that the the scope of employment requirements while broader than the color of state law requirement for substantive section one thousand nine hundred three liability is a statutory element duty to pay defense costs it is and the judge here said that was necessarily decided against you in a summary judgment motion the judge ruled on both the scope of employment issue and law well that's where we disagree in terms of interpretation of the statute the the city wants to tether those together but we don't believe that you have to have a meritorious judgment to be paid to mention even granting your interpretation of the statute scope of employment is the key indicator of the city's liability and pay defense costs the statute doesn't say that yes it is or could be subject to personal civil liability that fortune for the payment of also pay all costs and fees incurred by our behalf of the public employed in defense of the claim the claim was that he acted in the course and scope of his employment thank you very much thank you every case will be taken under advisement