Liability Coverage for Police K-9s

OMAG’s liability coverage extends to the actions of a Police K9 in most cases. Liability coverage applies to losses that are not expected or intended (i.e. an accident). If a loss could be the expected or intended result of an intentional action by an Officer (i.e. using the K9), then the loss only qualifies for coverage if the use of the K9 was for the purpose of protecting persons or property from some imminent threat.

Injuries resulting from a K9 bite are typically covered because the bite was either accidental or was the result of an intentional K9 deployment to apprehend a suspect. Intentional deployments will qualify for liability coverage so long as they are justified by a need to apprehend a suspect who is a threat to persons or property.

A Police K9 can also cause damage to property when deployed for drug detection purposes. In those cases, coverage turns on how the K9 was trained to alert to the presence of narcotics. K9s trained to passively alert would not be expected to cause damage to property when they alert and, therefore, qualify for coverage. By contrast, when a K9 is trained to actively alert, it can be expected that their alert could result in damage to property (most often: scratching paint on a vehicle). In those cases, the property damage would not typically qualify for coverage because, at the time the K9 is deployed, there are typically not facts establishing a present threat of injury to persons or property.

OMAG's Position on UM/UIM Coverage

The Oklahoma Insurance Code requires commercial insurance carriers providing auto liability coverage to also offer Uninsured and Underinsured Motorist (UM/UIM) coverage. 36 O.S. §3636. From time to time, OMAG receives inquiries from attorneys representing injured employees as to the availability of UM/UIM coverage as part of OMAG’s liability indemnification for its municipalities. The purpose of this notice is to explain why OMAG does not provide UM/UIM coverage as part of its indemnification of its municipalities for their automobile liability exposure.

The requirement to offer UM/UIM coverage only applies to entities subject to the Oklahoma Insurance Code when offering auto liability coverage. OMAG’s auto liability indemnification is not subject to the Oklahoma Insurance Code. Oklahoma municipalities formed OMAG through interlocal agreement to allow them to pool various risk exposures. The auto liability exposure of those municipalities is governed by the Oklahoma Governmental Tort Claims Act (GTCA). Section 167(C) of the GTCA expressly provides that the pooling of GTCA risk through entities like OMAG is not an activity that subjects OMAG to the requirements of the Insurance Code:

Notwithstanding any other provision of law, two or more municipalities or public agencies who are affiliated in an insurance program which was originated prior to January 1, 2006, by interlocal agreement made pursuant to Section 1001 et seq. of Title 74 of the Oklahoma Statutes, may provide insurance for any purpose by any one or more of the methods specified in this section. The pooling of self-insured reserves, claims or losses among governments as authorized in this act shall not be construed to be transacting insurance nor otherwise subject to the provisions of the laws of this state regulating insurance or insurance companies.

See also 36 O.S. §607.1(A) (interlocal entities created pursuant to the above GTCA authorization are not considered insurers under Title 36). OMAG is therefore not subject to the requirements of the Oklahoma Insurance Code to offer UM/UIM coverage.

Further, OMAG does not voluntarily offer UM/UIM coverage since Oklahoma municipalities have no risk exposure which could be secured by a UM/UIM policy. As to third parties seeking UM/UIM proceeds, the risk exposure for OMAG’s municipalities is limited to the GTCA and fully covered to the extent there is exposure under the GTCA. As to municipal employee-operators of a motor vehicle, the risk exposure to the municipalities is governed by the Oklahoma Workers Compensation Act. Under the GTCA, Section 155(14), a municipality legally has no liability exposure for any loss which is covered by the Workers’ Compensation Act. There is, therefore, no exposure under the GTCA which the municipalities could pool through the voluntary offering of UM/UIM coverage as part of OMAG’s auto liability indemnification.