St. Paul Fire and Marine Insurance Co. v. City of Zion , 2014 IL App (2d) 131212 ( 2014 )

Illinois Official Reports
Appellate Court
St. Paul Fire & Marine Insurance Co. v. City of Zion, 2014 IL App (2d) 131312
Appellate Court ST. PAUL FIRE AND MARINE INSURANCE COMPANY,
Caption Plaintiff and Counterdefendant-Appellee, v. THE CITY OF ZION,
THE COUNTY OF LAKE, KEVIN HARRIS, MARK CURRAN,
TIMOTHY JONITES, and ROBERT DEVER, Defendants (Jerry
Hobbs III, Defendant-Appellant; The City of Waukegan, Domenic
Capelluti, Charles Schletz, and William Valko, Defendants and
Counterplaintiffs; Illinois County Risk Management Trust,
Intervenor-Appellant; and American Alternative Insurance
Corporation, Certain Underwriters at Lloyd’s London, and Princeton
Excess and Surplus Lines Insurance Company, Intervenors).
District & No. Second District
Docket Nos. 2-13-1312, 2-13-1313 cons.
September 10, 2014
Filed
Held In an action arising from a dispute over the insurance coverage for the
(Note: This syllabus malicious prosecution claim filed by the underlying individual against
constitutes no part of the defendant city alleging that two of the city’s police officers coerced
opinion of the court but him into confessing to the murder of his daughter and her friend, the
has been prepared by the trial court properly entered summary judgment for plaintiff insurer on
Reporter of Decisions the ground that the occurrence triggering the malicious prosecution
for the convenience of claim was the filing of the criminal complaint, which occurred on May
the reader.) 9, 2005, but coverage under a series of policies issued by plaintiff did
not become effective until after the date the criminal complaint was
filed.
Decision Under Appeal from the Circuit Court of Lake County, No. 10-MR-2227; the
Review Hon. Margaret J. Mullen, Judge, presiding.
Judgment Affirmed.
Counsel on Michael W. Rathsack, of Michael Rathsack Law Office, of Chicago,
Appeal and Kathleen T. Zellner and Douglas H. Johnson, both of Kathleen T.
Zellner & Associates, P.C., of Downers Grove, for appellants.
Daniel G. Litchfield, Dennis M. Dolan, and Laura L. Milnichuk, all of
Litchfield Cavo, LLP, of Chicago, for appellee.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Schostok and Hudson concurred in the judgment and opinion.
OPINION
¶1 The issue in this appeal is whether a malicious-prosecution claim filed by Jerry Hobbs III
against the City of Zion and its police officer Kevin Harris triggered coverage under an
insurance policy that St. Paul Fire and Marine Insurance Company issued to Zion. Resolution
of this issue depends upon whether the occurrence triggering coverage under the policy is the
commencement of the alleged malicious prosecution or its termination in favor of the
accused. We hold that, under the unambiguous language of the policy, the occurrence
triggering coverage is the commencement of the alleged malicious prosecution. Here, that
occurrence took place outside the policy period. Therefore, we affirm the grant of summary
judgment in St. Paul’s favor.
¶2 I. BACKGROUND
¶3 Hobbs was charged with murdering his eight-year-old daughter and her nine-year-old
friend. After DNA evidence excluded Hobbs as the perpetrator, and after Hobbs had spent
five years in jail awaiting trial, the charges were dismissed. On December 1, 2010, Hobbs
filed a federal action against Zion, Harris, and a number of other defendants. Hobbs v.
Cappelluti, 899 F. Supp. 2d 738, 752 (N.D. Ill. 2012). Hobbs alleged that Harris and the
other defendant officers coerced him into falsely confessing to the murders. Among other
claims, Hobbs alleged malicious prosecution under Illinois law. Hobbs, 899 F. Supp. 2d at
752.
¶4 After Hobbs initiated the federal action, St. Paul filed this declaratory judgment action in
the circuit court of Lake County against Zion, Harris, Hobbs, and other defendants. In its
complaint, St. Paul alleged that it issued a series of insurance policies to Zion for periods
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covering December 1, 2006, to December 5, 2010,1 all of which included law enforcement
liability coverage. The complaint alleged that, although the State dismissed Hobbs’s murder
charges on August 4, 2010, which was within the 2009-10 policy period, it filed the murder
charges on May 9, 2005, prior to the effective date of the first policy. St. Paul sought a
declaration that the allegations of Hobbs’s federal complaint did not trigger coverage under
the 2009-10 policy, because the occurrence triggering coverage of a malicious-prosecution
claim is the commencement of the wrongful prosecution, not its termination in favor of the
accused.
¶5 Illinois County Risk Management Trust (ICRMT), which insured Zion and Harris when
the Hobbs murder prosecution commenced, intervened in the action and filed a complaint in
intervention against St. Paul, Zion, Harris, and Hobbs. ICRMT took the position that the
occurrence triggering coverage was the favorable termination of the prosecution.
¶6 St. Paul filed a motion for summary judgment on its complaint, and ICRMT filed a
motion for summary judgment on its complaint in intervention. Zion and Harris sided with
ICRMT and opposed St. Paul’s motion for summary judgment. In a written decision, the trial
court agreed with St. Paul that the occurrence triggering coverage under its policy is the
commencement of a malicious prosecution. Accordingly, the court entered summary
judgment in St. Paul’s favor and against Zion and Harris. The court denied ICRMT’s motion
for summary judgment. St. Paul subsequently moved for summary judgment on ICRMT’s
complaint in intervention, which the trial court granted. ICRMT and Hobbs2 timely appeal.
¶7 II. ANALYSIS
¶8 On appeal, ICRMT and Hobbs, who have filed a joint brief, maintain that the trial court
erred in determining that the occurrence triggering coverage of a malicious-prosecution claim
under the 2009-10 St. Paul policy is the commencement of the prosecution. They contend
that, under Illinois law, termination of a prosecution in favor of the accused is the final
element of the tort of malicious prosecution. Accordingly, they maintain, there is no claim
for which an insurance policy could provide coverage until the prosecution has been
favorably terminated.
¶9 The trial court granted summary judgment in St. Paul’s favor. Summary judgment is
appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed
in the light most favorable to the nonmoving party, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law. Pekin
Insurance Co. v. Precision Dose, Inc., 2012 IL App (2d) 110195, ¶ 28. We review de novo an
order granting summary judgment. Precision Dose, 2012 IL App (2d) 110195, ¶ 29.
1
Because this appeal involves only the policies insuring Zion and Harris, we limit our discussion to
these policies. St. Paul issued similar policies to the City of Waukegan and to Lake County, which were
also defendants in the declaratory judgment action.
2
Hobbs appeals as an assignee of Zion and Harris. Although Hobbs originally was named as a
defendant in St. Paul’s declaratory judgment complaint, he was voluntarily dismissed by stipulation of
the parties. Subsequently, in the federal action, Hobbs settled his claims against Zion and Harris.
Pursuant to the settlement agreement, Zion and Harris assigned to Hobbs their rights to pursue coverage
from St. Paul. Hobbs then intervened in the declaratory judgment action as an assignee of Zion and
Harris.
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Additionally, we review de novo the construction of an insurance policy. Pekin Insurance
Co. v. Wilson, 237 Ill. 2d 446, 455 (2010).
¶ 10 In construing an insurance policy, a court’s primary task is to ascertain the intent of the
parties as expressed in their agreement. Wilson, 237 Ill. 2d at 455. Courts construe a policy as
a whole with due regard to the risk undertaken, the subject matter that is insured, and the
purpose of the entire policy. Wilson, 237 Ill. 2d at 456. If terms in a policy are unambiguous,
courts afford them their plain, ordinary, and popular meaning. Wilson, 237 Ill. 2d at 455-56.
If terms are ambiguous, they will be strictly construed against the insurer. Wilson, 237 Ill. 2d
at 456.
¶ 11 On appeal, ICRMT and Hobbs limit their arguments to two sections of the St. Paul
policy: the general liability section and the law enforcement liability section. The general
liability section provides, in pertinent part, that St. Paul will pay damages for personal injury
that is caused by malicious prosecution committed during the policy period. However, as St.
Paul points out, the general liability section contains an exclusion for injury or damage that
results from law enforcement activities or operations. The policy defines law enforcement
activities or operations as “any of the official activities or operations of your police
department, sheriff agency, or other public safety organization which enforces the law and
protects persons or property.” At oral argument, ICRMT and Hobbs conceded that the law
enforcement liability exclusion applies here and that the general liability section cannot
provide coverage. Therefore, we turn to the law enforcement liability section.
¶ 12 The law enforcement liability section provides, in pertinent part, that St. Paul will “pay
amounts any protected person is legally required to pay as damages for covered injury or
damage” that (1) “results from law enforcement activities or operations by or for you,” (2)
“happens while this agreement is in effect,” and (3) “is caused by a wrongful act that is
committed while conducting law enforcement activities or operations.” The policy defines
“[i]njury or damage” as “bodily injury, personal injury, or property damage.” It defines
“[p]ersonal injury,” in pertinent part, as “injury *** caused by *** [m]alicious prosecution.”
It defines “[w]rongful act” as “any act, error, or omission.”
¶ 13 In arguing that the favorable termination of a malicious prosecution is the occurrence that
triggers coverage under the law enforcement liability section, ICRMT and Hobbs contend
that the section provides coverage for “the wrongful act of malicious prosecution.” Thus,
they maintain, coverage is triggered once “all the elements” of malicious prosecution,
including favorable termination of the prosecution, are “in place.”
¶ 14 ICRMT and Hobbs misconstrue the plain language of the policy. Unlike the general
liability section, the law enforcement liability section does not require that the “offense” of
malicious prosecution be “committed” while the policy is in effect. Instead, the law
enforcement liability section provides coverage if the “injury” caused by malicious
prosecution “happens” while the policy is in effect. Accordingly, in order to determine
whether a malicious-prosecution claim triggers coverage under the law enforcement liability
section, we need to determine when the “injury” resulting from malicious prosecution
“happens,” not when the “offense” is “committed.”
¶ 15 The elements of a malicious-prosecution claim under Illinois law are well established.
Cult Awareness Network v. Church of Scientology International, 177 Ill. 2d 267, 272 (1997).
The elements are (1) the commencement of judicial proceedings by the defendant, (2) a lack
of probable cause for the proceedings, (3) malice in instituting the proceedings, (4)
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termination of the prosecution in the plaintiff’s favor, and (5) damage or injury to the
plaintiff. Cult Awareness Network, 177 Ill. 2d at 272; Reed v. Doctor’s Associates, Inc., 355
Ill. App. 3d 865, 873 (2005). Although a plaintiff alleging malicious prosecution based on a
civil proceeding must establish some “special injury” beyond the usual expense, annoyance,
and inconvenience of defending a lawsuit, a plaintiff alleging malicious prosecution based on
a criminal proceeding need not show special injury. Voga v. Nelson, 115 Ill. App. 3d 679,
682 (1983).
¶ 16 The only Illinois case to address the issue of which occurrence triggers insurance
coverage of a malicious-prosecution claim is Security Mutual Casualty Co. v. Harbor
Insurance Co., 65 Ill. App. 3d 198 (1978), rev’d, 77 Ill. 2d 446 (1979). Security Mutual
involved a reinsurance policy that contained an arbitration clause. Security Mutual, 65 Ill.
App. 3d at 200. A dispute arose over coverage of a malicious-prosecution claim, and the trial
court determined that the dispute was subject to arbitration. Security Mutual, 65 Ill. App. 3d
at 201-02. On appeal, instead of directly addressing the arbitration issue, the court identified
the “threshold issue” as whether the malicious-prosecution offense took place within the
period of the reinsurance policy. Security Mutual, 65 Ill. App. 3d at 203. The court did not
discuss the policy language and instead determined that, because favorable termination was
the final element of a malicious-prosecution cause of action, coverage was not triggered until
the prosecution was favorably terminated. Security Mutual, 65 Ill. App. 3d at 205-06.
According to the court, because the policy expired before the malicious prosecution at issue
was favorably terminated, there was no coverage issue subject to arbitration. Security
Mutual, 65 Ill. App. 3d at 206.
¶ 17 The supreme court granted leave to appeal and reversed. Security Mutual, 77 Ill. 2d
at 451. The court held that the appellate court exceeded the scope of review when it sua
sponte addressed the “trigger” issue. Security Mutual, 77 Ill. 2d at 451. The court reasoned
that the coverage dispute was subject to arbitration regardless of whether the insured’s claim
to coverage was valid. Security Mutual, 77 Ill. 2d at 451.
¶ 18 The appellate court’s decision in Security Mutual is not helpful here. Not only did the
supreme court reverse the decision, but also the appellate court looked solely to the elements
of a cause of action for malicious prosecution in determining which occurrence triggered
insurance coverage. It is well settled that a court construing an insurance policy must
ascertain the intent of the parties from the policy’s language. Wilson, 237 Ill. 2d at 455. Here,
as noted above, the St. Paul policy provides coverage for a malicious-prosecution claim if the
“injury” caused by the malicious prosecution “happens while th[e] agreement is in effect.”
The appellate court’s decision in Security Mutual provides no guidance for interpreting this
language.
¶ 19 Because no other Illinois court has addressed the issue of which occurrence triggers
insurance coverage of a malicious-prosecution claim, we look to out-of-state authority for
guidance. Most courts that have addressed the issue have held that the commencement of a
malicious prosecution is the event that triggers insurance coverage. See City of Erie v.
Guaranty National Insurance Co., 109 F.3d 156, 160 (3d Cir. 1997) (“[T]he clear majority of
courts have held the tort [of malicious prosecution] occurs [for insurance purposes] when the
underlying criminal charges are filed.”). Although some courts have repeated Security
Mutual’s mistake by not addressing the specific language of the policies at issue, others have
properly limited their holdings to the language of the policies before them. See Harbor
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Insurance Co. v. Central National Insurance Co., 165 Cal. App. 3d 1029, 1034 (Cal. Ct.
App. 1985) (criticizing a trial court for “fashion[ing] a general ‘occurrence’ rule of coverage,
rather than focusing, as it should have, upon the particular language of the policies
involved”).
¶ 20 The first court to adopt what would become the majority position was the Superior Court
of New Jersey in Muller Fuel Oil Co. v. Insurance Co. of North America, 232 A.2d 168 (N.J.
Super. Ct. App. Div. 1967). The insurance policy at issue in Muller Fuel provided that the
insurer would pay “ ‘all sums which the insured shall become Legally obligated to pay as
damages.’ ” Muller Fuel, 232 A.2d at 174. After the insured was sued for malicious
prosecution based on a criminal prosecution that was terminated in the accused’s favor
during the policy period, the insured filed a declaratory judgment action. Muller Fuel, 232
A.2d at 170. It argued that coverage was triggered because it could not become legally
obligated to pay damages until the cause of action against it “fully ripen[ed],” which was
when the alleged malicious prosecution was favorably terminated. Muller Fuel, 232 A.2d at
174.
¶ 21 The court rejected the insured’s argument, reasoning that four of the five elements of the
tort of malicious prosecution occur when a prosecution is initiated. Muller Fuel, 232 A.2d at
174-75. The court stated that “damage flows immediately from the tortious act” of filing a
criminal complaint with malice and without probable cause. Muller Fuel, 232 A.2d at 174.
According to the court, “although a favorable termination of the criminal proceeding is a
condition precedent to institution of the action, the ‘essence’ of the tort is the wrongful
conduct in making the criminal charge.” Muller Fuel, 232 A.2d at 174. The court held that
“[i]t would be unreasonable to hold” that the parties intended the policy to provide coverage
for a malicious-prosecution claim when “four of the five essential ingredients” of the claim
preceded the effective date of the policy. Muller Fuel, 232 A.2d at 175.
¶ 22 In reaching its holding, the court in Muller Fuel emphasized that “[t]he tort of malicious
prosecution is Sui generis.” Muller Fuel, 232 A.2d at 174. It explained that, in the negligence
context, the sustaining of damages is the final element that marks accrual of the cause of
action; thus, the occurrence triggering insurance coverage is simultaneous with the accrual of
the cause of action. Muller Fuel, 232 A.2d at 175. In the malicious-prosecution context, by
contrast, the sustaining of damages is not the final element. Muller Fuel, 232 A.2d at 175.
Rather, the cause of action accrues when the criminal proceeding has been favorably
terminated. Muller Fuel, 232 A.2d at 175. According to the court, this explains why the
occurrence triggering insurance coverage of a malicious-prosecution claim may precede the
accrual of the cause of action. Muller Fuel, 232 A.2d at 175.
¶ 23 Although the language of the policy in Muller Fuel significantly differs from the
language of the law enforcement liability section of the St. Paul policy, the case nevertheless
is instructive. As noted above, based on the language of the law enforcement liability section
of the St. Paul policy, the issue this court must resolve is when the “injury” resulting from
malicious prosecution “happens.” According to the court in Muller Fuel, the injury “flows
immediately from the tortious act” of filing a criminal complaint with malice and without
probable cause. Muller Fuel, 232 A.2d at 174. Indeed, this must be the case, because the
favorable termination of a malicious prosecution marks the “beginning of the judicial
system’s remediation” of the wrong committed, not the commencement of the injury or
damage. Town of Newfane v. General Star National Insurance Co., 784 N.Y.S.2d 787, 792
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(N.Y. App. Div. 2004). Stated another way, “it is difficult to see how [a criminal
defendant’s] release from prison can be described as an ‘injury’ in any sense of the word.”
Gulf Underwriters Insurance Co. v. City of Council Bluffs, 755 F. Supp. 2d 988, 1008 (S.D.
Iowa 2010); see also Billings v. Commerce Insurance Co., 936 N.E.2d 408, 413 (Mass. 2010)
(noting that favorable termination of a prosecution “is not an event that causes harm”).
¶ 24 Other courts have relied on similar reasoning in construing policy language providing
coverage for malicious prosecution. In Royal Indemnity Co. v. Werner, 979 F.2d 1299 (8th
Cir. 1992), for example, the policy at issue provided coverage for “personal injury” that
occurred during the policy period, and it defined “personal injury” as including malicious
prosecution. Royal Indemnity, 979 F.2d at 1299. The Eighth Circuit reasoned that it was
“improbable that the term ‘personal injury’ is used in a technical sense to speak of a time
when a cause of action has fully matured.” Royal Indemnity, 979 F.2d at 1300. According to
the court, the term was “more likely intended to describe the time when harm begins to
ensue, when injury occurs to the person, that is *** when the relevant law suit is filed.”
Royal Indemnity, 979 F.2d at 1300.
¶ 25 Given the language of the law enforcement liability section of the St. Paul policy, we
conclude that the same result is warranted here. Again, the law enforcement liability section
provides, in pertinent part, that St. Paul will “pay amounts any protected person is legally
required to pay as damages for covered injury or damage” that “happens while this
agreement is in effect.” It then defines “[i]njury or damage” as including “personal injury”
and defines “[p]ersonal injury” as including “injury *** caused by *** [m]alicious
prosecution.” Read together, these provisions state that St. Paul will pay damages for injury
that happens while the agreement is in effect and that is caused by malicious prosecution.
Because injury results upon the commencement of a malicious prosecution, it is the
commencement of the prosecution that triggers insurance coverage under the policy.
Favorable termination of the prosecution cannot be the occurrence that triggers coverage,
because termination marks the “beginning of the judicial system’s remediation” of the wrong
committed, not the commencement of the injury or damage. Town of Newfane, 784 N.Y.S.2d
at 792; see also Billings, 936 N.E.2d at 413 (noting that favorable termination of a
prosecution “is not an event that causes harm”).
¶ 26 Nevertheless, ICRMT and Hobbs contend that “technically there is no injury until
favorable termination.” According to them, “[o]ne cannot suffer an injury until the
prosecution is malicious, and that is not determined until the person charged is exonerated.”
This argument is not persuasive, and ICRMT and Hobbs cite no authority to support it. As a
number of courts have correctly reasoned, a maliciously prosecuted criminal defendant
suffers injury and damage immediately upon being prosecuted. Gulf Underwriters Insurance,
755 F. Supp. 2d at 1008; Harbor Insurance, 165 Cal. App. 3d at 1037; Muller Fuel, 232 A.2d
at 174. When a prosecution is commenced, the accused “is arrested, required to post bail to
secure his liberty pending trial, and his reputation is adversely affected.” Muller Fuel, 232
A.2d at 174. “At that point the tortfeasor has invoked the judicial process against the victim
maliciously and without probable cause, and the victim has thereby suffered damage.”
Harbor Insurance, 165 Cal. App. 3d at 1037. “Although continued proceedings after
commencement of the action will increase and aggravate the defendant’s damages, the initial
wrong and consequent harm have been committed upon commencement of the action and
initial impact thereof on the defendant.” Harbor Insurance, 165 Cal. App. 3d at 1037; see
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also Paterson Tallow Co. v. Royal Globe Insurance Cos., 444 A.2d 579, 584 n.3 (N.J. 1982)
(applying the same reasoning).
¶ 27 Stating their argument in a slightly different way, ICRMT and Hobbs maintain that “there
cannot be a tortious injury until there is first a tort.” This is circular reasoning. Simply
because a cause of action for malicious prosecution does not accrue until the prosecution has
been terminated does not mean that the injury does not occur until the prosecution has been
terminated. The termination of the prosecution is the final element that marks accrual of the
cause of action. If no injury preceded the termination of the prosecution, then no cause of
action would accrue at that point. Indeed, injury resulting from malicious prosecution often
precedes accrual of the cause of action by a number of years, or even decades in some cases.
¶ 28 ICRMT and Hobbs similarly argue that, because the policy provides coverage only if
Zion is “legally required to pay” damages for a covered injury, the tort of malicious
prosecution must accrue before coverage is triggered. In other words, they contend, Zion
could not be “legally required to pay” damages until the final element of the tort has
occurred. While ICRMT and Hobbs are correct that there cannot be liability before the cause
of action has accrued, this has no bearing on when the injury resulting from malicious
prosecution occurs. The language “legally required to pay” qualifies the damages that St.
Paul will indemnify; it does not define the occurrence that triggers coverage under the policy.
¶ 29 We also reject ICRMT and Hobbs’s contention that the reasoning of courts adopting the
minority position is more persuasive and should be followed here. Relying on these cases,
ICRMT and Hobbs contend that, because there is “no tort of malicious prosecution” until a
prosecution has been terminated, there can be no insurance coverage until that time.
¶ 30 Six cases have adopted the minority position that termination of a malicious prosecution
is the occurrence that triggers insurance coverage. The appellate court’s decision in Security
Mutual is one of them, and we have already explained why that case is not helpful here.
Three of the minority-position cases are Seventh Circuit cases, decided under Illinois law,
that have relied on Security Mutual as the only Illinois case to have addressed the issue.
Northfield Insurance Co. v. City of Waukegan, 701 F.3d 1124 (7th Cir. 2012); American
Safety Casualty Insurance Co. v. City of Waukegan, 678 F.3d 475 (7th Cir. 2012); National
Casualty Co. v. McFatridge, 604 F.3d 335 (7th Cir. 2010). The only other cases to adopt the
minority position are Sauviac v. Dobbins, 06-CA-666 (La. App. 5 Cir. 12/27/06); 949 So. 2d
513, and Roess v. St. Paul Fire & Marine Insurance Co., 383 F. Supp. 1231 (M.D. Fla.
1974).
¶ 31 Addressing the three Seventh Circuit cases first, we note that none of them are
particularly persuasive given their reliance on Security Mutual. In each case, the Seventh
Circuit noted that Security Mutual was reversed “on other grounds.” (Emphasis omitted.)
Northfield, 701 F.3d at 1132; American Safety, 678 F.3d at 478; National Casualty, 604 F.3d
at 345. Nevertheless, the Seventh Circuit has continued to follow Security Mutual as the only
relevant Illinois authority, explaining that it would be improper to “singlehandedly modify
the Illinois rule without some new direction from the state.” Northfield, 701 F.3d at 1132.
¶ 32 Furthermore, to the extent that the Seventh Circuit has explicitly agreed with Security
Mutual’s holding, the Seventh Circuit’s reasoning is inapplicable here. In American Safety,
the Seventh Circuit explicitly agreed with Security Mutual, explaining that, although injury is
the final element for most torts, exoneration is the final element for malicious prosecution,
and the “final element of the tort marks the occurrence.” American Safety, 678 F.3d at 480.
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The court further explained that the insurance policy at issue “identifie[d] the tort [of
malicious prosecution] rather than the misconduct [giving rise to the tort] as the
‘occurrence.’ ” (Emphases omitted.) American Safety, 678 F.3d at 479. Here, unlike in
American Safety, the section of the insurance policy at issue defines as the occurrence the
injury caused by malicious prosecution, not the tort of malicious prosecution.
¶ 33 The reasoning of the other two minority-position cases is similarly inapposite. In Roess,
the federal district court, applying Florida law, ruled that favorable termination of a
malicious prosecution is the operative occurrence that triggers coverage. Roess, 383 F. Supp.
at 1235. The court reasoned that favorable termination of the prosecution is “an indispensable
ingredient of the claim itself.” Roess, 383 F. Supp. at 1235. Likewise, in Sauviac, the court
held that the dismissal of a prosecution “necessarily form[s] part of the elementary basis for a
cause of action for malicious prosecution” and is therefore the occurrence that triggers
coverage. Sauviac, 06-CA-666, p. 13 (La. App. 5 Cir. 12/27/06); 949 So. 2d 513. Given the
language of the law enforcement liability section of the St. Paul policy–which makes injury
the occurrence that triggers coverage–neither Roess’s nor Sauviac’s reasoning applies here.
¶ 34 Our holding is limited to the language of the policy at issue. We have been careful not to
repeat the mistake, made by a number of courts, of adopting a broad “occurrence” rule for
coverage of malicious-prosecution claims in general. In essence, ICRMT and Hobbs urge this
court to adopt a sweeping rule that favorable termination of a malicious prosecution is always
the occurrence that triggers coverage. Adopting a broad, sweeping rule would be improper,
as a court’s task in construing an insurance policy is to ascertain the parties’ intent from the
language of the policy. We express no opinion regarding which occurrence would trigger
coverage if a policy were to require the “offense” of malicious prosecution to be
“committed” during the policy period, rather than, as here, requiring the “injury” caused by
the prosecution to “happen” during the policy period.
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, we conclude that Hobbs’s malicious-prosecution claim did not
trigger coverage under the law enforcement liability section of the 2009-10 insurance policy
issued by St. Paul to Zion. Therefore, we affirm the order of the circuit court of Lake County
granting summary judgment in St. Paul’s favor.
¶ 37 Affirmed.
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