Time, Talent and Litigation

Time, talent and litigation

In spite of liability, call to stewardship remains

By Karen Mahoney
Special to Your Catholic Herald

The invitation to Catholic stewardship is simple; it is a call to renew the face of the earth and to listen to the voice of the Holy Spirit speaking of gratitude and responsibility. According to the U.S. Conference of Catholic Bishops, stewardship includes a responsible management of God-given resources of time, talent, and treasure.

According to 1 Peter 4, “Be hospitable to one another without complaining. As each one has received a gift, use it to serve one another as good stewards of God’s varied grace.”

When Hjalmer Heikkinen, 84, a West Allis barber was severely injured in an auto accident in 2002 by longtime Legion of Mary volunteer Margaret Morse, member of Christ the King Parish, Wauwatosa, the Archdiocese of Milwaukee was found liable.

Last October, the Wisconsin Supreme Court upheld a lower court ruling resulting in a judgment of $17 million. With 12 percent interest accrued, the payment will be approximately $23. 4 million.

The judgment begs the question of stewardship vs. liability, and entertains the question, “How much should the church fear legal liability for those directly affiliated with the parish, a satellite of the church, or with regards to unaffiliated volunteer groups that meet on church property?”

While the funds did not come from archdiocesan coffers and were paid by its insurer Catholic Mutual Insurance Group, the issue brought to light a dividing line between personal culpability, the responsibility of service organizations, and the responsibility of the archdiocese.

According to Molly Hatfield, claims risk manager with Catholic Mutual, the payout was so high because there was no bright line drawn at the parish or the archdiocese between affiliated and unaffiliated Catholic organizations that are allowed to operate in parishes.

“The Legion of Mary did not have insurance to cover their members when using their automobiles on behalf of the Legion of Mary,” she said, explaining that the large adverse verdict resulted from the severity of the man’s injuries. He is a quadriplegic and endured an amputation. “The general population is unaware of Catholic organizations operating autonomously within the archdiocese are not legally a part of the archdiocese or a parish, (additionally) the current negativity toward the Catholic Church is not conducive to getting an unbiased judge or jury.”

The verdict brings to light the duty of stewardship and if it should affect the lay minister bringing Communion, visiting the sick, or the volunteer driving an elderly member to church; should these acts be curtailed due to fear of litigation?

The answer is a profound ‘no,’ according to John Rothstein, legal counsel for the archdiocese.

“The word of wisdom always is that people, whether in business individually or with a charitable institution, should act reasonably,” he said. “You can’t stop the mission or business because of a lawsuit; you act reasonably and that is why you have insurance. It is important to act prudently. It’s sad and it does mean that you just can’t do things unthinkingly – that would be unreasonable.”

Citing an example of inappropriate usage of a parish vehicle, Rothstein said that it would be inadvisable to allow “the janitor and everyone else” to drive as they wished.

“If you have a group who you really don’t know about using your facility – that might not be very prudent,” he said. “But if you have someone delivering Communion, does that mean you won’t have this anymore? No, that is not reasonable. You would tell them to drive carefully, like when they go to the grocery store and are using their insurance – do it carefully.”

Despite the fear among some that they no longer wish to volunteer for fear of litigation, members of St. Anne Parish, Pleasant Prairie, are continuing their community outreach, according to Fr. Don Thimm, pastor.

“Our parishioners do deliver meals on wheels for the county, or may drop off meals to someone’s home after a birth, surgery, or death of a family member,” he said, adding, “We have not pulled back on those activities.”

The judgment for Heikkinen should not affect volunteering, affirmed Tom Armstrong of von Briesen & Roper Law firm, who wrote the appeals and Supreme Court briefs for Catholic Mutual.

“The court finding was an interpretation to the insurance company and the implications were technically confirmed by the Supreme Court in a 3-3 vote,” he said. “There needs to be carefully drafted language, assuming whether they will be providing coverage to volunteers at all. This was not a legal decision as it was one of policy. The insurance afforded to volunteers in this case makes it clear of the importance in drafting coverage language to anticipate what might occur and do it carefully in defining terms.”

The case was not decided on tort law, which grounds that in certain circumstances, a group might be liable, Armstrong added.

“There was no claim that the church or the archdiocese was liable for acts of the volunteer or whether the volunteer had an insurance policy,” he said. “The principal effect now will not be in terms of liability for volunteers, but whether insurance should be provided to volunteers and, if so, care should be taken to ensure they are using the language to accomplish the result.”

Due to the laws of agency in the state of Wisconsin and other states, liability from an employed or volunteer driver can be transferred to the controlling entity, including non-for-profit organizations, it would be possible for a verdict in the range of $2-4 million if an accident resulted in death or serious injury.

To limit volunteer and non-owned auto liability for parishes, volunteers who use their vehicles must have personal liability insurance with a limit of at least $100,000/$300,000, a vehicle in safe operating condition and a good driving record. Parishes need to utilize the Volunteer Driver Information Sheet and request driver record checks with the DMV, said Hatfield, who added that Catholic Mutual performs records checks.

“All unaffiliated organizations meeting at or operating in the parish need to sign the Unaffiliated Organization Agreement and/or the Facility Usage Indemnity Agreement. Criteria for affiliated/unaffiliated organizations are spelled out in section 5.3 of the Archdioceses of Milwaukee Parish Financial Management Manual,” she said. “Universal and consistent use of these forms will create the ‘bright line’ between the parish and the unaffiliated organization.”

Echoing the advice of Rothstein, Catholic Mutual proposes that parishes limit volunteer and employee driving to essential tasks and ministries, using a few known individuals and managing their activity. Additionally, wording on the coverage language was changed to avoid another Legion of Mary outcome.

“The phrase, ‘on behalf of (parish or archdiocese),’ which was used at the time of the Legion of Mary accident, has been removed and replaced with ‘agent,'” Hatfield said. “That change in terminology clearly defines the intended beneficiary of the coverage and also means that a defined set of laws (agency) will be used to determine coverage, as opposed to the undefined term, ‘on behalf of.'”

Other avenues to protect another adverse outcome include the development of a new Facility Use Agreement for unaffiliated groups whose activities entail volunteers and/or employees driving.

“The new agreement will require the unaffiliated organization to carry non-owned automobile insurance in addition to the general liability insurance that is currently required,” stated Hatfield.

Despite the outward fear against sharing time, talent and perhaps a vehicle, Fr. Mike Ignaszak of St. Alexander, St. Helen and St. John Kanty parishes in Milwaukee, expressed it this way in a December 2007 bulletin.

“I am encouraging parishioners who do drive to check with their friends and neighbors who might now need a lift to church,” he wrote. “Unfortunately, we cannot arrange these rides through the tri-parish office. We have been advised by Catholic Mutual Insurance that we are not allowed to make these arrangements because of liability issues … However, I can encourage you to extend the Christian caring to those in need who might live near you.”

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