State insurance board caps payouts for WV victims in police excessive force cases

The board that manages liability insurance for state agencies and awards settlements is reducing the amount of money victims of excessive force — like those in police custody — can be awarded in a settlement.

The West Virginia Board of Risk and Insurance Management insures the state police and some local law enforcement agencies.

There has been "an uptick in excessive use of force claims for people either in custody or rather being placed in custody," according to BRIM Executive Director Jeremy Wolfe.

BRIM has a cap of $1 million for settlements, but a policy enacted over the summer has brought that down to $500,000 in excessive force cases involving police departments insured by the state's insurance board.

The state insurance agency, dealing with depleting cash reserves due to payouts, said the policy change was "a fiscally prudent decision" based on claim trends and the increasing costs associated with law enforcement operations.

The decision was not made lightly, said Samantha Knapp, communications director for the state Department of Administration. BRIM is housed within this department. Knapp cited a state code that gives BRIM the discretion to determine appropriate insurance limits for the benefit of the program.

"BRIM recognizes the seriousness of all claims, particularly those involving injury or loss, and remains committed to managing the program responsibly while supporting fair and equitable outcomes," she said.

Excessive force could involve misuse of tasers, firearms

The agency defined excessive force as "any means of force that is more than necessary to control a situation or apprehend someone."

It could also involve the misuse of tasers, batons or firearms, or the use of deadly force.

The policy, which went into effect July 1, caps the settlement amount for excessive force cases that involve claims of inadequate supervision and improper hiring or training of police officers.

The "limit of liability for excessive force coverage shall not apply to the recovery of reasonable and necessary medical expenses actually incurred," the policy said. The medical expenses cannot be expenses for psychiatric or psychological treatment or other counseling.

Knapp said she didn't have an estimate for how much the state had paid out in excessive force cases.

Wolfe testified before lawmakers earlier this month about the status of BRIM, and he also was unable to provide data about how many excessive force cases the agency had paid out in.

House Minority Leader Sean Hornbuckle, D-Cabell, asked Wolfe if the agency had any suggestions for how to weed out officers who could potentially use excessive force.

"Sometimes — in very few [cases] — some bad apples, they're allowed to be removed from force then allowed to go to another force and get on," Hornbuckle said. "Is that something that maybe we need to look at to make sure that doesn't happen to cost us so much money?"

"We don't insure all the cities and towns in the state," Wolfe responded. "That does happen, and that will be something that you guys can potentially look at that issue."

BRIM's funds decreased after boarding school abuse scandal

Wolfe said that BRIM has $300 million in a trust fund, saying the account has been depleted over the last few years due to payouts — including a high-profile child abuse scandal at a religious boarding school that was insured by BRIM. The deceased reserve fund could cause a cash flow issue in the future should the agency face another massive payout, he said.

The agency could have to pay out in victims' lawsuits totaling around $100 million for children who sued Miracle Meadows, a Seventh Day Adventist school. Dozens of former students who say they were subjected to horrific physical and sexual abuse began coming forward in 2017. The school was closed in 2014 after a student poisoned themselves with a cleaning agent, attorneys said, and then begged medical staff for help, prompting them to alert authorities.

BRIM had been insuring the school after the agency made the change in the 1980s to begin insuring some non-state entities.

Wolfe told lawmakers that a 2020 law change that allowed child sexual abuse victims to bring claims until they are 36 years old instead of 20 impacted the agency's payouts.

"In no way, shape or form, do I condone abuse of children or vulnerable adults," Wolfe told lawmakers.

The law change — which came alongside the Miracle Meadows case — wiped out 10 to 15 years of financial reserves, he explained.

"We are working to recapture those reserves while trying to maintain our good risk in the program, so we are working toward that but it's going to be a long recovery," Wolfe said.

In an email, Knapp said that, "While changes in laws and circumstances can have impacts that are not always fully predictable, BRIM takes fiscally responsible steps to maintain long-term program stability."

She continued, "Recent actions include adjusting coverage limits, deductibles and minimum premiums; strengthening underwriting and claims processes; and implementing a reserve recapture plan to rebuild financial reserves."

Earlier this year, House Speaker Roger Hanshaw sponsored a bill that would have reduced the timeframe — two years after reaching 18 — that a civil suit brought by a victim of child sexual assault or abuse could be filed against BRIM. Hanshaw, R-Clay, told West Virginia Watch in April that the state had been assessing what types of liabilities BRIM should cover.

The bill was not "intended to make life easier for the perpetrators of sexual violence," Hanshaw said at the time. There would be no changes to criminal claims or proceedings under the legislation.

The bill wasn't taken up for a vote on the House floor by deadline.

BRIM could be on the hook for massive payouts in the case where more than 80 women sued the West Virginia State Police after a hidden camera was found inside the locker room at the State Police Academy.

A judge recently ruled that the videotaping of each individual is a separate offense for insurance policy purposes. Each individual could receive the $1 million maximum rather than just splitting the total.