Opn. No.

Honorable William C. Hennessy Commissioner NYS Department of Transportation

You have asked whether the provisions of section 17 of the Public Officers Law provide for legal assistance in the event of an accident involving State employees who use their personal cars on State business. The specific questions to be answered are (1) whether the employees are required to use their own automobile insurance carrier as a primary source of coverage and (2) whether the State will represent the employees and indemnify them for any judgment entered against them.

Section 17 of the Public Officers Law provides for the defense and indemnification of State officers and employees. However, it has been the State's practice to consider the policy of insurance on the automobile involved to be the primary source of defense and indemnification in those instances where State employees use their own private automobiles in the scope and course of employment and are involved in accidents. So far as driving a personal car on State business is concerned, the employee's personal liability insurance is primary coverage and section 17, if the employee's acts are covered by the section, is "excess coverage" protecting the employee. The State will, however, participate in the litigation in cooperation with the attorney for the insurance carrier.

Each case that arises must be examined both as to insurance coverage and as to the applicability of section 17. If the employee using a private automobile on State business has a liability policy that does not specifically exclude use of the automobile for business purposes, the carrier of that policy is responsible for the defense and indemnification of the insured. The State will cooperate with the carrier, assuming the employee meets the requirements of section 17, in the same manner that an excess liability insurer would if the employee also carried excess liability insurance.

We conclude that a State employee involved in an automobile accident while on State business but using a personal automobile must first rely on the liability coverage on that automobile for defense and indemnification. If that coverage is inadequate, the employee should proceed as required by section 17. If the section authorizes defense and indemnification under the circumstances, the State will cooperate with the insurance carrier in assuring adequate defense and full indemnification.