Northfield Insurance v. City of Waukegan , 701 F.3d 1124 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1215 & 11-3729
N ORTHFIELD INSURANCE C OMPANY and
S T. P AUL F IRE & M ARINE INSURANCE C OMPANY,
Plaintiffs-Appellees,
v.
C ITY OF W AUKEGAN, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 7402—Charles R. Norgle, Judge.
A RGUED M AY 24, 2012—D ECIDED N OVEMBER 21, 2012
Before C UDAHY, K ANNE, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Northfield Insurance Company
and St. Paul Fire & Marine Insurance Company (collec-
tively, the “insurers”) provided law enforcement liability
coverage to the city of Waukegan, Illinois, and its em-
ployees acting within the scope of employment. In 2009,
Bennie Starks filed a civil rights suit against the city
and a handful of current and former Waukegan police
2 Nos. 11-1215 & 11-3729
officers, among others, alleging that each played a role
in his decades-old wrongful conviction. In response, the
insurers filed an eight-count declaratory judgment
action seeking a declaration that they have no duty to
defend or indemnify the city or employees. The district
court granted summary judgment in favor of the in-
surers, reasoning that the disputed insurance policies
did not cover the city at the time of the alleged wrong-
doing. We affirm.
I. B ACKGROUND
The underlying facts are undisputed. Northfield In-
surance Company issued two comprehensive general
liability policies to Waukegan, effective November 1,
1991, to November 1, 1995.1 The two Northfield policies
at issue contained a law enforcement liability provision,
which provided that the insurer would cover all sums
for which the city “shall be obligated to pay by reason
of errors, omissions or negligent acts arising out of the
performance of the Assured’s duties while acting as a
law enforcement official or officer in the regular course
of public employment.” From November 1, 2006, to
November 1, 2009, the city maintained a similar policy
with St. Paul Fire & Marine Insurance Company. Like
the Northfield policy, the St. Paul Fire policy contained
a law enforcement liability provision which provided
1
Northfield issued a third policy covering November 1, 1995,
to November 1, 1997, but the parties agree that this policy
is not at issue.
Nos. 11-1215 & 11-3729 3
coverage for “wrongful act[s] . . . committed while con-
ducting law enforcement activities or operations.” Both
policies covered the city on an “occurrence basis.” And,
the policies defined “occurrence” and “personal injury”
to include false arrest, false imprisonment, malicious
prosecution, and other civil rights violations. Both
insurers also provided coverage to the city’s officers
and officials acting within the scope of their employ-
ment. Evidently, other insurance carriers provided cov-
erage during the intervening years, and those carriers’
duties to defend are being litigated in at least two
separate declaratory judgment actions.
In January 2009, Bennie Starks filed the underlying
civil suit, which the city quickly tendered to Northfield
and St. Paul Fire for a defense. Broadly speaking, Starks
alleges that the city and several police officers, among
others, unlawfully conspired to convict him of crimes
he did not commit. In his complaint, Starks primarily
seeks damages for false arrest and imprisonment,
wrongful conviction, denial of due process, and malicious
prosecution. The background of his suit is as follows.
In January 1986, a woman reported to the Waukegan
police that she had been attacked and raped. Officers
quickly arrested Starks, who was then charged and con-
victed of three counts of sexual assault. Twenty years
into his sixty-year sentence, newly surfaced DNA
evidence raised serious doubts about his guilt, and
on March 23, 2006, the Illinois Appellate Court re-
versed Starks’s conviction and ordered a new trial.
On January 20, 2007, the Illinois Appellate Court issued
the related mandate returning jurisdiction to the trial
4 Nos. 11-1215 & 11-3729
court. At the time Starks’s conviction was overturned,
state prosecutors moved to re-prosecute him. But on
May 15, 2012, one week before oral argument in this
appeal, the state trial court entered a nolle prosequi order
effectively terminating any further criminal proceedings
against him.2
On November 25, 2009, Northfield and St. Paul Fire
filed an eight-count declaratory judgment action, 28
U.S.C. § 2201, seeking a declaration that it has no duty to
defend or indemnify the appellants for the claims made
in Starks’s suit. The action was initially docketed with
Judge Coar. In June 2010, the district court denied the
appellants’ motion to stay the proceedings pending
resolution of Starks’s criminal case, and in Decem-
ber 2010, it entered summary judgment in favor of the
insurers. The appellants filed a timely appeal of both
decisions, which we docketed as 11-1215. On appeal, we
issued a limited remand so the district court could
clearly spell out the terms of the declaratory relief. North-
field Ins. Co. v. City of Waukegan, No. 11-1215, slip op. (7th
2
On the eve of oral argument, the insurers asked us to strike
the appellants’ motion to cite supplemental authority, which
included a citation to and analysis of the trial court’s nolle
prosequi order. The insurers argue that the appellants’ motion
was supplemental evidence that was not before the district
court rather than supplemental authority. Semantics aside, we
take judicial notice of the trial court’s order and deny the
insurers’ motion to strike. See In re Salem, 465 F.3d 767, 771
(7th Cir. 2006) (taking judicial notice of state-court dockets
and opinions).
Nos. 11-1215 & 11-3729 5
Cir. Aug. 23, 2011). In the interim, Judge Coar retired,
and the case was reassigned to Judge Norgle, who
promptly entered a Rule 58(a) judgment in favor of the
insurers. The appellants filed a timely appeal of that
ruling, which we docketed as 11-3729. On December 13,
2011, we consolidated the two appeals for purposes
of briefing and disposition.
II. A NALYSIS
On appeal, the appellants argue the district court
erred by (1) granting summary judgment in favor of the
insurers; (2) denying their motion to stay the declaratory
judgment action pending resolution of Starks’s criminal
proceeding; and (3) granting overbroad declaratory
relief. We take each argument individually.
A. Summary Judgment
We review grants of summary judgment de novo,
viewing the record in the light most favorable to the
appellants and drawing all reasonable inferences in
their favor. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.
2011). Summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
The question before us is whether the allegations in
Starks’s complaint trigger Northfield’s or St. Paul Fire’s
duty to defend. To answer that question, we look to
6 Nos. 11-1215 & 11-3729
Illinois law, which the parties agree governs this dispute.
Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir.
2010). Under Illinois law, we compare the allegations in
Starks’s complaint with the express language in the
insurance policy to determine whether an insurer’s duty
to defend has been triggered. Gen. Agents Ins. Co. of Am.,
v. Midwest Sporting Goods Co., 828 N.E.2d 1092, 1098 (Ill.
2005). “If the underlying complaint alleges facts within
or potentially within policy coverage, an insurer is obli-
gated to defend its insured even if the allegations are
groundless, false or fraudulent.” Id.; accord CMK Dev. Corp.
v. W. Bend Mut. Ins. Co., 917 N.E.2d 1155, 1163 (Ill. App. Ct.
2009) (holding the duty to defend is “much broader” than
the duty to indemnify). An insurer may justifiably
refuse to defend the insured only if “it is clear from the
face of the underlying complaint[ ] that the allegations
fail to state facts which bring the case within, or
potentially within, the policy’s coverage.” U.S. Fid. &
Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d 926, 930
(Ill. 1991); accord Lagestee-Mulder, Inc. v. Consol. Ins. Co.,
682 F.3d 1054, 1056 (7th Cir. 2012). One such instance
where an insurer can justifiably refuse coverage is
when the underlying allegations accrue outside of the
relevant policy period. Am. Safety Cas. Ins. Co. v. City
of Waukegan, Ill., 678 F.3d 475, 477-79 (7th Cir. 2012);
McFatridge, 604 F.3d at 344. Here, the insurers have no
duty to defend if Starks’s allegations occurred outside
of the policy periods.
With that in mind, we turn to Starks’s complaint, which
we liberally construe in favor of the appellants. Wilkin
Insulation Co., 578 N.E.2d at 930. Paragraph thirty-nine
Nos. 11-1215 & 11-3729 7
of the complaint perhaps best summarizes Starks’s
claims. There, he alleges that he was deprived of “his
rights to be free from unreasonable arrest and seizure,
from wrongful confinement and imprisonment, and his
rights to access to the Courts and to a fair and impartial
trial, as protected by the First, Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments.” (Starks Compl. at 6-7.)
From that, we infer that Starks is asserting claims for
malicious prosecution, wrongful conviction, denial of
due process, and false arrest and imprisonment, the
last of which is an overlapping theory of relief, Wallace
v. Kato, 549 U.S. 384, 388 (2007). Starks’s complaint
also suggests that he intends to bring an intentional
infliction of emotional distress (IIED) claim once the
criminal prosecution against him terminates. (Starks
Compl. at 12 n.3.) Because we can imagine an IIED claim
potentially falling within the policy terms, we will
assume that Starks fully intends to submit such a claim.
See Wilkin Insulation Co., 578 N.E.2d at 930 (insurer must
defend all claims potentially within coverage).
We pause momentarily to reject the appellants’ sug-
gestion that Starks could have or plans to assert claims
for some unknown torts grounded in the First and
Eighth Amendments. Potential theories of recovery
might include a deprivation of his freedom of speech
or religion or some type of deliberate indifference claim
under the Eighth Amendment. The appellants argue that
because Starks referenced the First and Eighth Amend-
ments without specifying theories of relief, we should
wait to definitively determine whether the insurers
have a duty to defend until Starks has fully outlined
8 Nos. 11-1215 & 11-3729
his claims. Although we acknowledge that “the duty to
defend does not require that the complaint allege or use
language affirmatively bringing the claims within the
scope of the policy,” Am. Econ. Ins. Co. v. Holabird & Root,
886 N.E.2d 1166, 1171 (Ill. App. Ct. 2008), we will not
cobble together a more compelling or comprehensive
complaint than what is written or what can be inferred.
After all, we are charged with comparing the under-
lying complaint, inferences, and other known facts to
the insurance policy, not some hypothetical or hoped-
for version. Conn. Indem. Co. v. DER Travel Serv., Inc., 328
F.3d 347, 350-51 (7th Cir. 2003) (stating “it is the actual
complaint, not some hypothetical version, that must be
considered”). Here, there are no supporting allegations
even hinting at a First or Eighth Amendment claim.
Starks never alleges that his right to free speech or
religion was suppressed, nor does he allege that he was
subjected to cruel or unusual punishment or any type
of deliberate indifference. Moreover, it is difficult
to imagine a scenario where the city and its police
o ff i c e r s a r e r e s p o n s ib l e fo r t h e s e t y p e s o f
offenses rather than state-prison authorities. Ultimately,
nothing in the complaint or any generous inference
we may grant the appellants suggests that Starks has
a claim under the First or Eighth Amendments.
We now turn to the three discrete allegations Starks
makes in his complaint. We analyze each individually
to determine whether there is a duty to defend.
Nos. 11-1215 & 11-3729 9
1. False Arrest and Imprisonment
Starks first alleges that he was falsely arrested and
imprisoned for a crime he did not commit. We need
not spend much time discussing the insurers’ duty to
defend these claims because McFatridge and American
Safety are directly on point. Generally, Starks’s false
arrest and imprisonment claims imply that he was de-
tained without legal process. Wallace, 549 U.S. at 389.
As such, “[t]he false imprisonment ends, and the claim
accrues when he is held pursuant to a warrant or other
judicially issued process.” McFatridge, 604 F.3d at 344.
Here, Starks was arrested (presumably subject to an
arrest warrant, although the record on this point is
unclear) and duly convicted in 1986. To the extent
Starks’s complaint makes out a false arrest and impris-
onment claim, that offense accrued sometime in 1986
prior to his conviction. See id. Because neither the North-
field nor the St. Paul Fire policies were in effect in 1986,
the insurers have no duty to defend against these claims.
2. Malicious Prosecution, Wrongful Conviction, and Denial
of Due Process
Starks next alleges that he was the victim of malicious
prosecution, wrongful prosecution, and a denial of due
process, all of which contest the fairness of his prosecu-
tion. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).
To succeed on such claims, Starks must prove that he
was exonerated; until then, he has no claim. Am. Safety,
678 F.3d at 478. With that in mind, we held in
10 Nos. 11-1215 & 11-3729
McFatridge and American Safety that the trigger date
for a malicious prosecution claim occurs on the day of
exoneration. See Am. Safety, 678 F.3d at 478 (“[U]nder
Illinois law, the issuer of the policy in force on the date a
convict is exonerated must defend and indemnify an
insured whose law-enforcement personnel violate the
Constitution (or state law) in the process of securing a
criminal conviction.”).
Here, the district court was presented with a com-
plaint that contains slight inconsistencies as to the date
of exoneration. Starks initially alleges that the Illinois
Appellate Court reversed his conviction on March 23,
2006, (Starks Compl. at 5), although that court did not
issue the related mandate returning jurisdiction to the
trial court until January 20, 2007. (Id. at 6). Momentarily
ignoring the importance of either date, both of these
allegations imply that Starks was fully exonerated fol-
lowing action by the Illinois Appellate Court. Alterna-
tively, the complaint alleges that the state’s attorney
sought to re-prosecute Starks even after the Illinois Ap-
pellate Court overturned his conviction. (Id. at 6; n.1.)
This allegation, of course, suggests that neither action
by the Illinois Appellate Court exonerated Starks,
which means that his malicious prosecution claim
has not yet ripened. See Am. Safety, 678 F.3d at 478.
Notwithstanding that inconsistency, we can definitively
say that Starks’s malicious prosecution (and related)
allegations do not trigger the two Northfield policies in
effect from November 1, 1991, to November 1, 1995.
Because Starks was not exonerated during that policy
period, Northfield has no duty to defend his malicious
prosecution claims.
Nos. 11-1215 & 11-3729 11
That leaves us with the St. Paul Fire policy, effective
November 1, 2006, to November 1, 2009. Because we are
charged with liberally construing the complaint and
policy in favor of the appellants, we will evaluate the
two divergent lines of allegations in Starks’s complaint,
while granting all reasonable inferences to the appel-
lants. We take the easy strain first and assume as true
the allegation that Starks has not yet been exonerated.
If true, then Starks’s claim for malicious prosecution
has not ripened. In other words, Starks was not
exonerated during St. Paul Fire’s policy period, and
thus, the insurer has no duty to defend in this scenario.
The other line of allegations suggests that Starks was
fully exonerated once the Illinois Appellate Court
vacated his conviction. If true, the question for us is
which date applies: the date of the reversal or the date
of the mandate. This is also a relatively easy question
because the law in Illinois clearly provides that the effec-
tive date of an Illinois Appellate Court decision is the
date of judgment, not the date the mandate was issued.
PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d 563, 570 (Ill.
1981) (“The date of the issuance of the mandate does not
control the effective date of the appellate court judg-
ment.”); Hickey v. Riera, 774 N.E.2d 1, 10 (Ill. App. Ct. 2001).
Thus, even if we were to read the complaint to suggest
that Starks was fully exonerated, the effective date of
that exoneration is March 23, 2006, which falls outside
of St. Paul Fire’s coverage.
This is not the end of the discussion, however. One
week before oral argument in this appeal, the state trial
court issued a nolle prosequi order in Starks’s criminal
12 Nos. 11-1215 & 11-3729
case, which effectively terminated any further prosecu-
tion against him. At oral argument, the appellants argued
that the nolle prosequi is not a final disposition, and
instead, it is a procedure that reverts the matter back to
the same condition that existed before the commence-
ment of the prosecution. In other words, the appellants
read the nolle prosequi order as reverting the date of
exoneration back to January 20, 2007, the date the
mandate was issued. We have already rejected the
notion that the mandate is the effective date of disposi-
tion and thus, exoneration. But even if that were not
the case, the appellants have mischaracterized the
effect of a nolle prosequi. For civil malicious prosecution
matters in Illinois, “a criminal proceeding has been ter-
minated in favor of the accused when a prosecutor for-
mally abandons the proceeding via a nolle prosequi,
unless the abandonment is for reasons not indicative of
the innocence of the accused.” Swick v. Liautaud, 662
N.E.2d 1238, 1242-43 (Ill. 1996). The Swick rule leaves
two possibilities for Starks and the appellants. If the
prosecution was abandoned for reasons of Starks’s in-
nocence, then May 15, 2012, is the trigger date for his
malicious prosecution claim. On the other hand, if the
prosecutors dropped Starks’s case for some reason not
indicative of innocence—such as the unavailability of
a key witness—then the nolle prosequi order would not
have terminated the prosecution in Starks’s favor,
leaving Starks yet to be exonerated. We need not
decide whether the nolle prosequi order in this case is
indicative of innocence because in either scenario,
the malicious prosecution occurrence falls outside of
St. Paul Fire’s policy.
Nos. 11-1215 & 11-3729 13
We must address one more issue before examining
Starks’s final allegation. Specifically, the insurers invite
us to reconsider our holdings in McFatridge and American
Safety by asserting that those cases interpreting Illinois
law contradict the vast majority of other jurisdictions.
As we have already recounted, those cases hold that
the trigger date for a malicious prosecution claim in
Illinois is the date of exoneration. See Am. Safety, 678
F.3d at 478; McFatridge, 604 F.3d at 344. But the over-
whelming majority of jurisdictions to address this
issue consider the trigger date to be the date of the under-
lying criminal charges or conviction. Am. Safety, 678 F.3d
at 479 (collecting cases). Although we acknowledge Illi-
nois’s minority status, we have recently found that the
one Illinois Appellate Court opinion on point plainly
holds that the trigger date for a malicious prosecution
claim is the date of exoneration. Id. at 478-79 (citing
Sec. Mut. Cas. Co. v. Harbor Ins. Co., 382 N.E.2d 1 (Ill. App.
Ct. 1978), rev’d on other grounds, 397 N.E.2d 839 (Ill. 1979)).
As a federal court interpreting Illinois law, we are not
entitled to singlehandedly modify the Illinois rule
without some new direction from the state. Moreover,
we fully analyzed the Illinois rule and the majority
rule in American Safety not more than a few months
ago, and we see no need to repeat that discussion
here. Suffice it to say, we decline to disrupt our own
precedent or that of the Illinois Appellate Court, see
Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir.
2012) (permitting federal courts to give “proper regard”
to the state’s lower courts). Accordingly, we apply the
Illinois trigger rule for civil claims of malicious pros-
ecution.
14 Nos. 11-1215 & 11-3729
3. Intentional Infliction of Emotional Distress
Finally, Starks suggests that he plans to bring an
IIED claim if and when he is fully exonerated. Because
Illinois requires an insurer to defend all claims that
are potentially within coverage, Wilkin Insulation Co., 578
N.E.2d at 930, we assume that Starks will eventually
bring this claim. That said, we must examine a potential
IIED claim to determine whether it occurred during
the policy periods.
Generally, “the final element of the tort marks the
occurrence” or trigger date, Am. Safety, 678 F.3d at 480, and
IIED claims are no different. But here, the appellants
change course and argue that the injuries stemming
from the IIED are continuous, and thus, we should
apply a continuous trigger to that potential claim. See
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770
N.E.2d 177, 190 (Ill. 2002) (“[W]here a tort involves a
continuing or repeated injury, the limitations period
does not begin to run until the date of the last injury or
the date the tortious acts cease.”). Thus, under the ap-
pellants’ continuous-trigger theory, any injuries Starks
suffered from the IIED potentially trigger both North-
field’s and St. Paul Fire’s policies. We disagree.
The appellants conflate continuing harmful acts with
the continuing effects of one harmful act. “A continuing
violation or tort is occasioned by continuing unlawful
acts and conduct, not by continual ill effects from an
initial violation.” Feltmeier v. Feltmeier, 798 N.E.2d 75, 85
(Ill. 2003). To differentiate these concepts, Illinois courts
must determine whether a “single overt act” is the cause
Nos. 11-1215 & 11-3729 15
of subsequent damages or whether the accused con-
tinually perpetrated harmful acts. Id.In this case, Starks’s complaint alleges potentially
outrageous conduct committed by prosecutors, police
officers, and crime-lab technicians, during his 1986
trial and the preparation for that trial. The complaint
does not allege that Starks faced outrageous conduct at
any other time. Accordingly, whether it is ultimately
determined that Starks’ IIED claim accrued when he
was indicted or when he was exonerated, his claim
still occurred outside the scope of both Northfield’s and
St. Paul Fire’s policies, and neither insurer is liable. Com-
pare Brooks, 578 F.3d at 579 (Illinois IIED claim based
on allegations related to fairness of prosecution
accrued when plaintiff was indicted, not when he was
acquitted), with Parish v. City of Elkhart, 614 F.3d 677, 683-84
(7th Cir. 2010) (under Indiana law, IIED claim was not
completed prior to conviction and would have
impugned plaintiffs’ conviction under Heck v Humphrey,
512 U.S. 477 (1994), so claim accrued upon plaintiff’s
exoneration), and Lieberman v. Liberty Healthcare Corp.,
948 N.E.2d 1100, 1107-08 (Ill. App. Ct. 2011) (under
Illinois law, rule of Heck v. Humphrey applies to claims
for medical or legal malpractice that directly attack
legality of plaintiff’s confinement).
B. Motion to Stay Proceedings
The appellants next claim that the district court erred
by refusing to stay the declaratory judgment pro-
ceedings until Starks’s criminal case ended. The Declara-
16 Nos. 11-1215 & 11-3729
tory Judgment Act by its own terms grants district courts
discretion in determining whether to entertain such an
action. 28 U.S.C. § 2201(a) (providing that the district
court “may declare the rights and other legal relations
of any interested party seeking such declaration” (em-
phasis added)). Naturally, we review a denial to stay
proceedings for an abuse of discretion. See Envision
Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 985-86
(7th Cir. 2010) (“[A] district court is authorized, in the
sound exercise of its discretion, to stay or to dismiss an
action seeking a declaratory judgment.”). Here, the ap-
pellants make a handful of arguments faulting the
district court for refusing to grant its motion to stay
proceedings, none of which we find persuasive.
Principally, the appellants claim that there are too
many uncertain future events to allow the district court
to effectively adjudicate the insurers’ obligations. But, as
our preceding analysis of Starks’s complaint suggests,
we disagree. The complaint sets forth specific claims
for false arrest and imprisonment and the various
claims for malicious prosecution. Starks also intimates
that he intends to bring an IIED claim. All of those
claims have discrete trigger points that allowed the
district court to determine whether the insurers have
a duty to defend. And no future actions, save Starks’s
exoneration—which brings his claim even farther
outside of the insurers’ policies—change that analysis.
Any delay in adjudicating the insurers’ duty to defend
costs the insurers much-needed certainty. See Am. Safety,
678 F.3d at 480 (A long tail of insurance coverage affects
insurers’ ability to adjust prices to reflect previously
Nos. 11-1215 & 11-3729 17
incurred risk.). Thus, we find that the district court
rightly exercised its discretion in denying the appel-
lants’ motion to stay.
The appellants also point out that they sent the
insurers a letter proposing that the parties file a joint
motion to stay proceedings. Apparently, this letter is
evidence of the appellants’ willingness to back away
from their immediate demand for coverage and a de-
fense. And without a demand for coverage, the dis-
trict court has no live controversy to adjudicate. The
appellants have mischaracterized the contents of the
letter. In fact, this letter never suggests that the appel-
lants intend to withdraw their demand for coverage.
Rather, the letter simply requested that both parties file
a joint motion to stay the proceedings. As long as a live
controversy exists between the parties, the district court
has discretion to declare the rights of the parties. 28 U.S.C.
§ 2201(a); see also Cincinnati Cos. v. W. Am. Ins. Co., 701
N.E.2d 499, 504 (Ill. 1998) (“If, after being contacted,
the insured indicates that it desires the insurer’s
assistance, then the insurer’s duty to defend continues.”).
Finally, the appellants argue that the district court
must have abused its discretion because two other
courts facing the same underlying civil complaint stayed
proceedings pending the resolution of Starks’s criminal
case. At the threshold, we have already acknowledged
that district courts have wide discretion in adjudicating
declaratory judgment actions and motions to stay pro-
ceedings. It is no surprise that district judges vested
with this discretion may come to different conclusions.
18 Nos. 11-1215 & 11-3729
More than that, the two cases the appellants cite are
inapposite. For example, Judge Kocoras granted a stay
in TIG Ins. Co. v. City of Waukegan, No. 10-cv-1466 (N.D.
Ill. Apr. 28, 2010), presumably because TIG Insurance
was on risk from November 1, 1985, to November 1, 1987.
Our preceding trigger analysis suggests that Starks’s
claim for false imprisonment may have ripened in 1986,
potentially implicating TIG’s duty to defend. Similarly,
Judge Gettleman stayed the proceedings in Westport
Ins. Co. v. City of Waukegan, No. 10-cv-263 (N.D. Ill. Apr. 28,
2010). Unlike this case, the insurer there was on risk
under numerous policies stretching from November 1,
1987, to November 1, 2000. Given the greater com-
plexity, it again is no surprise that the district court
in that case exercised its discretion to stay the proceed-
ings. The larger point, however, is that district courts
maintain wide discretion in adjudicating these matters,
and evidence of conflicting decisions without anything
more is not evidence that a judge abused that discretion.
In sum, we find that the district court was well within
its discretion in denying the appellants’ motion to stay.
C. Declaratory Relief
Finally, the appellants claim that Judge Norgle’s dec-
laratory relief order is overbroad because it supposedly
preempts “any and all insurance coverage.” In other
words, the appellants claim that Judge Norgle’s order
prohibits all future claims that may have arisen during
the policy period, not just those in Starks’s complaint.
This argument misunderstands Judge Norgle’s order.
Nos. 11-1215 & 11-3729 19
In his order for declaratory relief, Judge Norlge plainly
states, “Plaintiffs . . . owe no duty to defend or
indemnify Defendants . . . concerning claims made
against them in the case of Starks v. City of Waukegan,
No. 09-CV-348 (N.D. Ill. filed Jan. 20, 2009).” Instead of
limiting all potential claims, as the appellants suggest,
Judge Norgle’s order simply precludes coverage of the
claims Starks made in his 2009 civil suit.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of
Northfield and St. Paul Fire.
H AMILTON, Circuit Judge, concurring. I join the
court’s opinion, which accurately applies the available
precedents of our court and the Illinois courts to the
questions before us. I write separately to make two ob-
servations: one on the handling of the Starks case
in particular and another on the handling of wrongful
conviction claims in general.
First, we have been told that two additional cases are
pending in the Northern District of Illinois concerning
20 Nos. 11-1215 & 11-3729
the City of Waukegan’s liability insurance coverage
for the wrongful conviction claims asserted by Bennie
Starks. The other cases involve other insurers with
policies covering different time periods going back more
than twenty years. The cases have been stayed pending
progress in Starks’ criminal case, but that case is now
resolved and presumably the stays will soon be lifted.
For the reasons explained in Judge Kanne’s opinion for
the court, I am confident that the two insurers in this
case are not required to defend or indemnify the city
against these claims. As long as the city has kept
liability insurance in place over the decades, though, it
is highly likely that the city is entitled to a defense and
indemnity from at least one insurer, perhaps from more
than one.
I respect the district court’s broad discretion in man-
aging related cases, but keeping separate these cases
contesting insurance coverage for the very same under-
lying claims seems to be an invitation for duplicative
litigation and inconsistent results. The city is in a posi-
tion that is the mirror image of an interpleader plain-
tiff — rather than having money or property that it
knows it should pay to someone in a group of com-
peting claimants, the city knows that it should be paid
by someone among the various insurers. The insurers
should resolve the coverage issues among themselves.
If and when the stayed cases come back to life, I hope
the district judges will reconsider whether they should
remain separate.
Second, at a more general level, I note the complexity
and confusion of the related timing questions — questions
Nos. 11-1215 & 11-3729 21
including ripeness, statutes of limitations, and insurance
coverage — that are necessarily raised by the claims
brought by people like Starks who are wrongfully con-
victed and spend years in prison. Issues relating to
timing usually focus on either the beginning of the
criminal process or the end. Was the claim ripe and did
the statute-of-limitations clock begin to run at the time
of the wrongful conviction and related events? Or was
the claim ripe and did the statute-of-limitations clock
begin to run only when the wrongful conviction was
set aside?
With either answer, there can be a devil in the details.
If the focus is on the beginning of the process, do we
focus on the date of wrongful conduct by law enforce-
ment, the date of conviction, the date of affirmance on
direct appeal, or other events? (Anyone who wants to see
how tricky even the last two possibilities can be
should study the extensive federal case law on when the
one-year clock for filing a federal habeas corpus petition
runs under 28 U.S.C. § 2244(d). See, e.g., Evans v. Chavis,
546 U.S. 189 (2006); Carey v. Saffold, 536 U.S. 214 (2002).) If
the focus is on the exoneration end of the process, do
we focus on the date that a conviction is first vacated,
the date that a court issues its mandate, or, in case of a
remand or writ of habeas corpus allowing a new trial,
when the reopened proceedings are concluded in favor
of the accused?
There is plenty of room for confusion and mutual
inconsistency in the ways courts handle these different
timing issues in these wrongful conviction cases, not to
mention malleability of arguments and outcomes. In
22 Nos. 11-1215 & 11-3729
any particular case, current Illinois law allows capable
counsel to make arguments to justify nearly any resolu-
tion that would benefit their client — whether the client
is the wrongfully convicted plaintiff, the government,
or the insurer. Only the Illinois courts can untangle
these knots to provide justice, consistency, and predict-
ability. For example, the city here suggested at oral argu-
ment that the statute of limitations might have run
on Starks’ claims before he could even bring them. The
convoluted theory seems to be that Starks was actually
exonerated back in 2007 when the Illinois Appellate
Court issued its mandate, but that his claims did not
accrue until the criminal prosecution ended with the
2012 nolle prosequi. Under this theory, the 2012 nolle
prosequi somehow retroactively started the statute-of-
limitations clock running back in 2007, effectively
barring Starks’ claims before they accrued and could be
brought. The fact that such an argument could be
made with a straight face is a symptom of a need for
clarification of Illinois law on these timing issues.
The argument also highlights a related point — the
challenge of figuring out the scope of an insurer’s duty
to defend claims in which the plaintiffs and defendants
in the underlying claims try to cope with the uncer-
tainty. Even if the plaintiff in the underlying case brings
a claim that is clearly not yet ripe or is clearly barred by
the statute of limitations, an insurer may still have a
duty to defend its insured against the claim. See Valley
Forge Ins. Co. v. Swiderski Electronics, Inc., 860 N.E.2d 307,
315 (Ill. 2006) (insurer is obligated to defend “even if the
allegations are groundless, false, or fraudulent, and even
if only one of several theories of recovery alleged in
Nos. 11-1215 & 11-3729 23
the complaint falls within the potential coverage of
the policy”).
The choice between imposing the duty to defend on
the insurer at the time of the original prosecution
and conviction and the insurer at the time of the later ex-
oneration is a difficult one. In National Casualty Co. v.
McFatridge, 604 F.3d 335 (7th Cir. 2010), and American
Safety Casualty Ins. Co. v. City of Waukegan, 678 F.3d 475(7th Cir. 2012), we held that the trigger date for a
malicious prosecution claim under Illinois law was the
day of exoneration. (This case shows that “exoneration”
can be a rather slippery concept, but I will leave those
nuances aside for now.) If the trigger date is the
original conviction, then the insurer from that time faces
a decades-long liability “tail.” If the trigger date is the
day of final official exoneration, then insurability can
become a serious problem because of the prospect of a
“known loss.” The city seeking insurance may be able to
see looming liability well in advance, and an insurer
may be able to demand disclosures about pending cases.
Suppose the City of Waukegan tried to buy liability
insurance for the Starks case after the DNA tests that led
to Starks’ exoneration, or even after the March 23, 2006
appellate opinion had been issued. See People v. Starks,
850 N.E.2d 206, 211 (Ill. App. 2006). Under McFatridge
and American Safety, insurers from earlier periods
probably would be off the hook. But if there were full
disclosure of relevant facts after the DNA test or the
appellate opinion, then insurance for a case like the
Starks case could be prohibitively expensive and essen-
tially not available at all.
24 Nos. 11-1215 & 11-3729
The insurers here have invited us to reconsider
McFatridge and National Casualty. There are good reasons
why we should not. Our opinions in those cases are
consistent with the relevant Illinois precedent, and this
is a question of state law. If the rule we adopted in those
cases needs to be reconsidered, it should be done by the
Illinois courts. If the Illinois courts do reconsider, I hope
they will do so with an eye toward the full range of
issues that can arise in these cases, including Heck v.
Humphrey, 512 U.S. 477 (1994), and Illinois’s embrace
of that rule in Lieberman v. Liberty Healthcare Corp.,
948 N.E.2d 1100, 1107-08 (Ill. App. 2011), as well as ripe-
ness, statutes of limitations, and the insurance cov-
erage issues.
11-21-12