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Statutory Interpretation – Indemnification

By: Derek Hawkins//October 3, 2018//

Statutory Interpretation – Indemnification

By: Derek Hawkins//October 3, 2018//

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7th Circuit Court of Appeals

Case Name: Shonda Martin v. Milwaukee County

Case No.: 17-3216; 18-1060

Officials: MANION and BARRETT, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Statutory Interpretation – Indemnification

Milwaukee County (“County”) hired Xavier Thicklen in late 2012 to work as a corrections officer in its jail. County has a zero-tolerance policy forbidding corrections officers from having any sexual contact with inmates. County repeatedly instructed Thicklen not to engage in any such contact and trained him to avoid it. Thicklen gave answers to quizzes indicating he understood the training. But he raped Shonda Martin in jail anyway.

Martin sued him, and sued County for indemnification under Wisconsin Statute § 895.46. Before, during, and after trial, County sought judgment as a matter of law that the assaults were outside the scope of employment and not susceptible to statutory indemnification. But the district court allowed a jury to decide the scope issue and allowed the $6,700,000 award to stand against County via the jury’s finding that the assaults were in the scope. County appeals.

Martin did not introduce any evidence from which a reasonable jury could conclude the sexual assaults were of the same or similar kind of conduct as that which County employed Thicklen to perform. Nor did she introduce any evidence from which a reasonable jury could conclude the sexual assaults were actuated even to a slight degree by a purpose to serve County. Either failing is fatal to her indemnification claim. She failed as a matter of law to sustain her burden. Therefore, County was entitled to judgment as a matter of law on indemnification. The district court erred by denying the Rule 50 motion. We need not address entitlement to a new trial or instructional error. As Thicklen is not party to this appeal, and as we reverse the only judgment against County arising from the sexual assaults, we need not address the evidence of fraud.

We REVERSE and VACATE the judgment against County for indemnification and REMAND with instructions to enter judgment for County on that claim.

Reversed and Vacated in part. Remanded in part.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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