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Risks and Liabilities of Automobile Use Within the Scope of Public Duties

  • A State employee involved in an accident within the scope of the employee's public duties is immune from suit and judgment if the accident occurs in Maryland. The employee may have such immunity if the accident occurs in another state. If the accident involves the employee's personal vehicle, the employee may have additional or alternative liability coverage under the terms of the employee's personal policy of insurance.
  • A State employee authorized to drive a State-owned car to commute to and from work is by law, considered to be acting within the scope of the employee's public duties. A State employee who is driving a personal vehicle to commute to and from work is generally not considered to be acting within the scope of the employee's public duties. Therefore, a State employee commuting to work in a State vehicle has the immunities and protections of a State employee acting within the scope of the employee's public duties, but a State employee driving a personal vehicle does not.
  • Workers' compensation is the exclusive source of coverage for injured drivers of State-owned vehicles because the State is not required to and does not maintain personal injury protection (PIP) which covers medical, hospital, disability expenses and lost wages, or uninsured motorist (UMD) protection. State employees driving their private vehicles within the scope of their public duties have both workers' compensation coverage and the additional protection of their PIP and UMD coverage. PIP and UMD coverage would most likely be the exclusive coverage for employees injured while commuting to work in their personal vehicles.
  • The State maintains collision insurance coverage for its vehicles, but not for an employee's personal vehicle damaged in an accident. Accordingly, a State employee whose vehicle is damaged must rely on the employee's personal insurance for damage to the employee's personal vehicle and would be responsible for any deductible. The driver of a State-owned vehicle would rely on the collision coverage maintained by the State and would not have any out-of-pocket expenses.

Self Insurance Protection Under the Maryland Tort Claims Act

The Maryland Tort Claims Act (MTCA), Md. State Gov't Code Ann. §12-101, et seq., is the sole method for suing the State and its personnel for their negligent acts and omissions, including negligent driving, committed within the scope of their public duties. One of the conditions that the State has placed on its consent to suit is that the employees may not be sued or be held personally liable unless their actions are outside the scope of their public duties, or are committed with gross negligence or malice.

The State's liability under the MTCA is further limited to $200,000 to each claimant for injuries arising from a single incident or occurrence. However, both of these limitations, the grant of personal immunity and cap on liability, only apply in this State's courts unless another state chooses to honor the limitations on the basis of comity. Thus, a state employee may be sued in another state for negligence committed in that state even if the act or omission occurred within the scope of the employee's public duties (i.e., for legitimate out-of-State travel.) In that event, the Board of Public Works will be requested, but is not required, to pay a judgment rendered against an employee.

  1. Representation by Attorney General. The Attorney General represents the State when it is sued. Sometimes State employees are sued along with or instead of the State. In such cases, the employee may request the Office of the Attorney General (OAG) to represent him. If representation is requested, the OAG will represent the employee unless it believes that the employee's actions were outside the scope of the employee's public duties or were characterized by gross negligence or malice.

    If represented by the OAG, the employee will be required to enter into a representation agreement that sets forth the employee's rights and obligations as provided by law. These representation agreements generally provide that if the employee is judicially determined to have acted outside the scope of the employee's employment or with malice or gross negligence, the Board of Public Works may be requested, but is not required, to pay any judgment rendered individually against the employee. The agreement further provides that an employee may be required to reimburse the OAG for attorney's fees, court costs, and other expenses if the information provided by the employee was false, misleading or incomplete. Finally, the agreement sets forth the conditions and obligations of both the OAG and employee in the event of settlement.

    The same representation process, rights, and liabilities apply regardless of whether a State or personal vehicle was involved in the accident and regardless of whether suit was brought in Maryland or in another state.

  2. Scope of Public Duties-Commuting to and from work.

    State employees frequently drive State-owned and/or personal vehicles within the scope of their public duties. For example, a State employee may drive a vehicle from the employee's office to a meeting at another location and then return to the employee's place of work. If such a driver is involved in an accident in the State, the driver would be immune from suit and liability unless the driver was grossly negligent or acted with malice.

    Generally, a State employee who is commuting to and from work in the employee's personal vehicle is not considered to be acting within the scope of the employee's public duties. Accordingly, if the employee is involved in an accident, the employee will not be immune from suit and the State is not responsible for the employee's negligence. However, any authorized use of a State-owned vehicle, including commuting to and from work, is considered to be acting within the scope of public duties for purposes of immunity from suit and liability. Whether an employee is driving a State-owned or the employee's personal vehicle while commuting to or from work will determine: whether the employee is immune from suit and the State is responsible for the accident, or whether the employee must rely on the employee's personal policy of insurance for protection. That is not, however, to say that an employee could never be acting within the scope of the employee's public duties while commuting to and from work. Factual situations such as where the employee drives out of the employee's normal commute route to attend a meeting or visit a job site might occur. In that event, the employee is acting within the scope of the employee's duties even though the employee is commuting to work.

Injuries to the State Driver

Whether an employee is traveling in a State-owned or a personal vehicle while commuting to or from work may affect the employee's ability to recover workers' compensation for the employee's injuries. Ordinarily, an employee is not considered to be acting within the course of employment and thus, able to recover workers' compensation, for an injury incurred when traveling to and from work. However, a State employee authorized to drive a State-owned car to commute to and from work is by law, considered to be acting within the scope of the employee's public duties.

An employee is also acting within the course of employment and able to file a compensation claim when traveling on a special mission or errand in furtherance of the employer's business, even if the journey is one that is to or from the workplace. Therefore, a State employee who is injured while driving to a job site or to make a home visitation on the employee's way to work in the employee's personal vehicle would be entitled to workers' compensation.

In sum, the following drivers are eligible to recover workers' compensation:

  1. drivers of State-owned vehicles on a special mission or errand in furtherance of State business;
  2. drivers of State-owned vehicles commuting to or from work; and;
  3. drivers of personal vehicles on a special mission or errand in furtherance of State business

Since the driver of a personal vehicle commuting to or from work and not on a special mission or errand in furtherance of the State's business would not be able to recover workers' compensation, those drivers must avail themselves of coverage under their own policy of insurance including: personal injury protection (PIP) to cover medical, hospital, disability expenses, and lost earnings, and/or uninsured motorist protection (UMD).

PIP and UMD coverage is not available to drivers of State-owned vehicles because the State, unlike private owners, is not required to and does not maintain PIP and UMD coverage. Drivers of their personal vehicles on a special mission or errand in furtherance of the State's business have both workers' compensation coverage and PIP and UMD coverage under their own policies of insurance.

Collision Coverage

The State is required, through commercial or self-insurance, to maintain insurance on its vehicles to cover bodily injury claims and damage to the property of others. Therefore, the State maintains collision coverage for its vehicles, but not for the personal vehicles of State employees driving within the scope of their public duties. The driver of a State-owned vehicle would rely on the collision coverage maintained by the State and would not have any out of pocket expenses.

A State employee whose vehicle is damaged would most likely rely on the employee's personal insurance for damage to the employee's vehicle and would be responsible for any deductible. In some instances, the driver of a State-owned vehicle can be held responsible for damage to the vehicle operated by them. For instance, it is State policy that if damage results through misuse or gross negligence, a driver will be required to make restitution to the State.

Additional or Alternative Coverage for Drivers of Personal Vehicles

In addition to the protections previously discussed, an employee involved in an accident while driving the employee's own vehicle would have additional or alternative liability coverage under the employee's contract of insurance on the employee's personal vehicle. Coverage, limits of coverage, and limitations based on an employment-related use of the vehicle may vary, but such policies typically require the insurer to defend the State employee if sued and pay any judgment up to the limits of liability coverage. This is true regardless of whether the accident occurs in Maryland or outside of the State, but would be especially important and beneficial for an accident occurring outside of the State where the employee is not immune from suit and a judgment could be rendered against him personally.

Automobile Insurance Coverage for State Drivers

These coverage descriptions pertain to State personnel driving within the scope of their public duties:

State vehicle involved in an in-State accident.

  • State employee retains personal immunity if in scope of public duties and acting without malice or gross negligence.
  • $200,000 cap on liability per claimant.
  • Workers= compensation coverage for bodily injury.
  • OAG provides defense.
  • No theft coverage.
  • Collision (property damage) coverage.

State vehicle involved in an out-of-state accident and suit is brought in that state court.

  • No employee immunity unless granted by that State under doctrine of comity.
  • No cap on liability.
  • The Board of Public Works may pay a settlement/judgment.
  • OAG provides defense.
  • No theft coverage.
  • Collision coverage.

Personal vehicle involved in an in-State accident.

  • Same coverage as that for a State vehicle involved in an in-State accident except,
  • No collision coverage.

Personal vehicle involved in an out-of-state accident and suit is brought in that state court.

  • Same coverage as that for a State vehicle in an out-of-state accident.
  • Private automobile insurance may be required for additional or alternative coverage.
  • No collision coverage.