Sanders v. Illinois Union Insurance Co.

2019 IL App (1st) 180158

• Court: Appellate Court of Illinois
• Decided: January 15, 2019
• Docket: 1-18-0158
• Status: Unpublished

Opinion

2019 IL App (1st) 180158 No. 1-18-0158

SECOND DIVISION January 15, 2019 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________

RODELL SANDERS and THE CITY OF ) Appeal from the Circuit Court CHICAGO HEIGHTS, ) of Cook County. ) Plaintiffs-Appellants, ) ) No. 16 CH 02605 v. ) )

ILLINOIS UNION INSURANCE COMPANY ) The Honorable

and STARR INDEMNITY & LIABILITY ) Celia Gamrath,

COMPANY, ) Judge Presiding.

)

Defendants-Appellees. )

______________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

Justice Hyman concurred in the judgment and opinion.

Presiding Justice Mason dissented, with opinion.

OPINION

¶1 Plaintiffs, Rodell Sanders and City of Chicago Heights (City), appeal from the trial

court’s dismissal with prejudice of their second amended complaint pursuant to section 2­

619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)). On

appeal, plaintiffs argue that the trial court erred in concluding that the insurance policies issued

by defendants, Illinois Union Insurance Company (Illinois Union) and Starr Indemnity &

Liability Company (Starr), did not provide coverage for Sanders’s underlying claim of malicious

prosecution against the City (Sanders suit). For the reasons that follow, we reverse and remand. 1-18-0158

¶2 BACKGROUND

¶3 In the Sanders suit, filed in the federal court, Sanders brought, among others, a claim of

malicious prosecution against the City and some of its employees. In it, Sanders alleged that

members of the City’s police department manipulated and coerced false witness identifications

of Sanders as being involved in a December 1993 shooting. Sanders also alleged that members of

the City’s police department made false statements to prosecutors to encourage his prosecution,

fabricated evidence, and withheld exculpatory information in connection with his prosecution for

the shooting. As a result, Sanders alleged, he was wrongly convicted of murder, attempt

(murder), and armed robbery arising out of that shooting

¶4 The Sanders suit ultimately settled for $15 million. Under the terms of the settlement, the

City agreed to pay $2 million of the settlement and United National Insurance Company, the

City’s insurer at the time Sanders was initially charged with the crimes, agreed to pay $3 million.

The City also assigned to Sanders its rights to pursue recovery from defendants, the City’s other

insurers.

¶5 Pursuant to that assignment, Sanders became a plaintiff in the present action, joined by

the City. In their second amended complaint in the present action, plaintiffs alleged that Sanders

was sentenced to 55 years’ imprisonment on the murder conviction, to run consecutively to his

25-year sentence on the attempt (murder) conviction and concurrently with his 20-year sentence

on the armed robbery conviction. In January 2011, Sanders’s convictions were vacated and that

ruling was affirmed by the Illinois Appellate Court in May 2012. People v. Sanders, 2012 IL

App (1st) 110373-U. In 2013, Sanders was retried, which resulted in a mistrial. He was retried

again in July 2014, at which time he was finally acquitted.

-2­ 1-18-0158

¶6 The second amended complaint in the present action further alleged that Illinois Union

issued primary insurance policies to the City that were collectively in effect for the period of

November 1, 2010, through November 1, 2014. Starr issued excess insurance policies to the City

that collectively were in effect from November 1, 2011, through November 1, 2014. 1 Despite the

City’s repeated demands for coverage for the Sanders suit, Illinois Union and Starr denied

coverage and refused to contribute to the settlement of the Sanders suit. As a result, plaintiffs

alleged claims for breach of contract and improper claims practices and sought a declaratory

judgment that defendants owed coverage under their respective policies for the claims made in

the Sanders suit.

¶7 Defendants filed a motion to dismiss the second amended complaint pursuant to section

2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)). In it, they argued that their

policies did not provide coverage for the claims in the Sanders suit because the trigger for

coverage under the policies was the filing of the criminal charges against Sanders, an act that

took place before defendants’ policies went into effect. Defendants further argued that the retrials

of Sanders did not qualify as additional coverage triggers because they were simply

continuations of the original 1994 prosecution. In response, plaintiffs argued that because

defendants’ policies provided coverage for the “offense” of malicious prosecution, the coverage

trigger was not the filing of the criminal charges against Sanders but was, instead, the completed

tort of malicious prosecution. Here, all of the elements of Sanders’s claim for malicious

prosecution were alleged to have been met upon his exoneration in 2014. The plaintiffs also

argued that, even if coverage were triggered by the wrongful conduct of the City’s police officers

1 Plaintiffs attached to their second amended complaint only defendants’ policies covering the period of November 1, 2012, through November 1, 2014, and focused primarily on those policies in their allegations against defendants. -3­ 1-18-0158

and not Sanders’s exoneration, then the retrials of Sanders, which occurred while defendants’

policies were in effect, were additional triggers for coverage.

¶8 After a hearing on the matter, the trial court issued its memorandum opinion and order,

granting defendants’ motion to dismiss. In doing so, the trial court found that the language of the

policies, in conjunction with existing case law, dictated the conclusion that coverage for a

malicious prosecution claim under defendants’ policies was triggered by the initiation of

Sanders’s prosecution, not his subsequent exoneration. The trial court also rejected plaintiffs’

argument that the retrials of Sanders were additional triggers of coverage, instead concluding that

they were merely a continuation of the original prosecution.

¶9 Following the trial court’s dismissal of the second amended complaint, plaintiffs filed

this timely appeal.

¶ 10 ANALYSIS

¶ 11 On appeal, plaintiffs argue that the trial court erred in dismissing the second amended

complaint on the basis that the coverage trigger—the filing of the criminal charges against

Sanders—occurred outside the effective dates of defendants’ policies. Plaintiffs argue that the

language of the policies requires a conclusion that coverage was not triggered until the tort of

malicious prosecution was complete, i.e., Sanders was exonerated, which occurred while

defendants’ policies were in effect. Alternatively, plaintiffs argue that even if it was the wrongful

conduct of the City, and not the satisfaction of the elements of the malicious prosecution, that

triggered coverage under defendants’ policies, then Sanders’s retrials during the effective dates

of defendants’ policies triggered coverage. For the reasons that follow, we conclude that

coverage under the policies was triggered upon the completion of the tort of malicious

prosecution, i.e., Sanders’s exoneration, which occurred while the policies were in effect.

-4­ 1-18-0158

Accordingly, the trial court’s dismissal of plaintiffs’ second amended complaint must be

reversed and the matter remanded for further proceedings.

¶ 12 Defendants’ motion to dismiss was brought pursuant to section 2-619(a)(9) of the Code

(735 ILCS 5/2-619(a)(9) (West 2016)), which provides for the dismissal of a complaint on the

basis that “the claim asserted against defendant is barred by other affirmative matter avoiding the

legal effect of or defeating the claim.” In making such a motion, the movant admits the legal

sufficiency of the complaint but asserts that an affirmative defense or some other matter defeats

the claims contained therein. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). We

review dismissals under section 2-619(a)(9) de novo. Id. at 368.

¶ 13 The propriety of the trial court’s dismissal of plaintiffs’ second amended complaint turns

on the interpretation of the insurance policies issued by defendants, namely, whether coverage

under those policies is triggered by the initiation of the alleged malicious prosecution or the

exoneration of Sanders. Although plaintiffs alleged in their second amended complaint that

Illinois Union’s policies covered the collective period of November 1, 2010, through November

1, 2014, and Starr’s policies covered a collective period of November 1, 2011, through

November 1, 2014, plaintiffs’ focus on appeal is on defendants’ policies covering the period of

November 1, 2012, through November 1, 2014, the policies in effect during Sanders’s retrials.

Accordingly, our focus will be the same.

¶ 14 Our supreme court has summarized the principles governing our interpretation of

insurance policies:

“Because an insurance policy is a contract, the rules applicable to contract

interpretation govern the interpretation of an insurance policy. [Citations.] Our primary

function is to ascertain and give effect to the intention of the parties, as expressed in the

-5­ 1-18-0158

policy language. [Citations.] If the language is unambiguous, the provision will be

applied as written, unless it contravenes public policy. [Citations.] The rule that policy

provisions limiting an insurer’s liability will be construed liberally in favor of coverage

only applies where the provision is ambiguous. [Citations.] A policy provision is not

rendered ambiguous simply because the parties disagree as to its meaning. [Citation.]

Rather, an ambiguity will be found where the policy language is susceptible to more than

one reasonable interpretation. [Citations.] While we will not strain to find an ambiguity

where none exists [citation], neither will we adopt an interpretation which rests on

‘gossamer distinctions’ that the average person, for whom the policy is written, cannot be

expected to understand [citation].” Founders Insurance Co. v. Munoz, 237 Ill. 2d 424,

433 (2010).

¶ 15 In its policies, Illinois Union agreed to the following:

“The Insurer will indemnify the Insured for Damages and Claim Expenses in excess

of the Retained Limit for which the Insured becomes legally obligated to pay because

of a Claim first arising out of an Occurrence happening during the Policy Period in

the Coverage Territory for Bodily Injury, Personal Injury, Advertising Injury, or

Property Damage taking place during the Policy Period.” (Emphases in original.)

With respect to “Personal Injury,” “Occurrence” is defined under the Illinois Union policies as

“only those offenses specified in the Personal Injury Definition.” (Emphasis in original.) The

definition of “Personal Injury” provides:

“Personal Injury means one or more of the following offenses:

a. False arrest, false imprisonment, wrongful detention or malicious prosecution;

-6­ 1-18-0158

b. Libel, slander, defamation of character, or oral or written publication of

material that violates a person’s right of privacy, unless arising out of advertising

activities in electronic chat rooms or bulletin boards;

c. Wrongful eviction from, wrongful entry into, or invasion of the right of private

occupancy of a room, dwelling or premises that a person occupies by or on behalf of

the owner, landlord or lessor, or by a person claiming to be acting on behalf of the

owner, landlord or lessor.” (Emphasis in original.)

¶ 16 The Starr policies, as excess policies, essentially follow the terms of the primary policies

issued by Illinois Union. In other words, subject to specific terms and exclusions that are not

relevant here, if coverage under the Illinois Union policies is triggered, excess coverage under

the Starr policies is also triggered.

¶ 17 None of the parties dispute that the above provisions require the “offense” of malicious

prosecution to take place during the relevant policy periods. 2 Rather, the dispute centers around

when the “offense” of malicious prosecution is deemed to occur under the policies. According to

plaintiffs, because the policies define an occurrence as the “offense” of malicious prosecution,

the policies refer to the completed tort of malicious prosecution and, thus, the “offense” of

malicious prosecution does not happen until all the elements of the tort of malicious prosecution

are satisfied. In Sanders’s situation, the tort elements of malicious prosecution were not complete

until he was exonerated in 2014. See Ferguson v. City of Chicago, 213 Ill. 2d 94, 99 (2004) (“A

cause of action for malicious prosecution does not accrue until the criminal proceeding on which

it is based has been terminated in the plaintiff’s favor.”). At that point, according to plaintiffs, the

2 The insuring agreement of the Illinois Union policies requires that the “Occurrence happen[ ] during the Policy Period.” (Emphases in original.) An occurrence is any “offense” listed in the personal injury definition. The definition of personal injury lists malicious prosecution as one of the qualifying offenses. Thus, the offense of malicious prosecution must happen during the policy period. -7­ 1-18-0158

offense of malicious prosecution “happen[ed]” and coverage was triggered under defendants’

policies. In contrast, defendants argue that the “offense” of malicious prosecution is not the

completed tort of malicious prosecution but is the offensive act of maliciously prosecuting

someone, i.e., charging someone with malice and without probable cause. Thus, coverage is

triggered by initiation of the alleged malicious prosecution.

¶ 18 None of defendants’ policies define the term “offense.” In situations where an insurance

policy does not define a term, that term is to be given its plain and ordinary meaning, and courts

often refer to dictionaries in making this determination. Muller v. Firemen’s Fund Insurance Co.,

289 Ill. App. 3d 719, 725 (1997). Black’s Law Dictionary defines “offense” as “[a] violation of

the law; a crime, often a minor one.” Black’s Law Dictionary (10th ed. 2014). This definition

suggests that the term “offense” refers to the legal cause of action that arises out of wrongful

conduct, not just the wrongful conduct itself. After all, crimes and other violations of law, like

tort causes of action, are typically comprised of a number of elements, only one of which is the

wrongful act itself. The crime, legal violation, and tort cause of action does not arise or exist

until all those elements have been satisfied; thus, only upon completion of the final element is a

wrongful act transformed into a crime or a tort.

¶ 19 Although defendants advance other definitions of “offense” that are more favorable to

them, the other language of the Illinois Union policies supports a conclusion that the term

“offense” refers to the legal cause of action for malicious prosecution, not the underlying

wrongful conduct giving rise to a legal cause of action for malicious prosecution. As noted, the

Illinois Union policies define “personal injury” by reference to a list of “offenses.” Importantly,

this list of offenses refers exclusively to legal causes of actions by their proper, legal names, e.g.,

false arrest, false imprisonment, malicious prosecution, libel, defamation, wrongful eviction, etc.

-8­ 1-18-0158

Nowhere in the policies’ list of offenses does it refer to the underlying wrongful acts themselves,

i.e., arresting, imprisoning, or prosecuting someone without probable cause; telling lies about

someone; or physically removing someone from a property. The policies’ reference to the

offenses by their proper, legal names instead of by their underlying wrongful conduct makes

clear that coverage is triggered by the occurrence of the completed cause of action (in this case,

upon Sanders’s exoneration) and not by merely the underlying wrongful conduct. See Milwaukee

Guardian Insurance, Inc. v. Taraska, 236 Ill. App. 3d 973, 975 (1992) (“[T]he provisions of an

insurance policy should be read and interpreted as an integrated whole, not as isolated parts.”).

¶ 20 We believe such an interpretation is consistent with what the average person would

understand to be covered under the Illinois Union policies. For the reasons discussed above, the

average person, reading that the Illinois Union policies provided coverage for the “offenses” of

false arrest, malicious prosecution, libel, wrongful eviction, etc., would believe that the policies

provided coverage for the legal claims of false arrest, malicious prosecution, libel, wrongful

eviction, etc. The average person would have no reason to think that although the “offenses”

were identified by the proper, legal names of whole causes of action, they actually only were

intended to refer to the underlying wrongful conduct. Thus, at the point the elements of those

causes of actions were met, the average insured would believe that coverage is triggered. Where

the term “offense” is coupled with the titles of legal causes of action and does not specifically

refer to the base wrongful acts alone, to conclude otherwise would be to “adopt an interpretation

which rests on ‘gossamer distinctions’ that the average person, for whom the policy is written,

cannot be expected to understand.” Founders Insurance Co., 237 Ill. 2d at 433.

¶ 21 For the above reasons, we conclude that the plain and ordinary meaning of the term

“offense,” as it is used in relation to “malicious prosecution” in the Illinois Union policies, refers

-9­ 1-18-0158

to the completed, legal cause of action of malicious prosecution. The tort of malicious

prosecution requires proof of five elements: “(1) the commencement or continuation by the

defendant of an original judicial proceeding against the plaintiff; (2) termination of the original

proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice;

and (5) special damages.” Grundhoefer v. Sorin, 2014 IL App (1st) 131276, ¶ 11. Here,

Sanders’s claim for malicious prosecution was not complete until he was exonerated in 2014.

See Ferguson, 213 Ill. 2d at 99 (“A cause of action for malicious prosecution does not accrue

until the criminal proceeding on which it is based has been terminated in the plaintiff’s favor.”).

Accordingly, coverage under the defendants’ policies was not triggered until 2014, when Sanders

was acquitted after his third trial.

¶ 22 In opposition, defendants argue that we should follow a line of Illinois cases holding that

the triggering event for coverage of a claim of malicious prosecution is the initiation of the

alleged malicious prosecution against the claimant. See First Mercury Insurance Co. v. Ciolino,

2018 IL App (1st) 171532; St. Paul Fire & Marine Insurance Co. v. City of Waukegan, 2017 IL

App (2d) 160381; County of McLean v. States Self-Insurers Risk Retention Group, Inc., 2015 IL

App (4th) 140628; Indian Harbor Insurance Co. v. City of Waukegan, 2015 IL App (2d) 140293;

St. Paul Fire & Marine Insurance Co. v. City of Zion, 2014 IL App (2d) 131312. Of these cases,

three of them are not applicable here because the relevant policy language was markedly

different than the language in Illinois Union’s policies. Specifically, the policies in these three

cases provided that the claimant’s injury or the insured’s wrongful act must take place during the

policy period. See City of Waukegan, 2017 IL App (2d) 160381, ¶ 12 (the policy covered

“ ‘injury or damage that *** happens while this agreement is in effect’ ”); Indian Harbor, 2015

IL App (2d) 140293, ¶ 4 (the policy covered “ ‘damages resulting from a wrongful act(s),’ ” but

-10­ 1-18-0158

required that “ ‘[t]he wrongful act(s) must occur during the policy period’ ”); City of Zion, 2014

IL App (2d) 131312, ¶ 12 (the policy covered an injury or damage that “ ‘happens while this

agreement is in effect’ ”). Thus, it is no surprise that these courts concluded that the triggering

event was the initiation of the wrongful prosecution, as the claimant’s injury occurs immediately

upon the insured’s wrongful act of filing criminal charges with malice and without probable

cause. See City of Zion, 2014 IL App (2d) 131312, ¶ 23. In this case, however, the Illinois Union

policies require the “offense” of malicious prosecution to happen in the policy period, not the

injury resulting from or the wrongful act giving rise to malicious prosecution. Accordingly, these

cases are irrelevant to our analysis.

¶ 23 Two of the cases cited by defendants contain similar language to the policies in this case:

County of McLean and First Mercury. Nevertheless, we conclude that these cases do not govern

our decision in the present case. In County of McLean, the policy at issue provided coverage for,

among other things, damages from personal injury, so long as the personal injury was “ ‘the

result of an occurrence during the policy period.’ ” (Emphases in original.) County of McLean,

2015 IL App (4th) 140628, ¶ 16. An occurrence was defined as follows: “ ‘With respect to

personal injury, only the offenses defined under personal injury. For any claim for personal

injury, the date of the occurrence is the date that the first offense took place or is alleged to have

taken place.’ ” (Emphases in original.) Id. ¶ 17. The term personal injury was defined in relevant

part as “ ‘injury (other than bodily injury or property damage) caused by one or more of the

following offenses: 1. False or wrongful arrest, detention, imprisonment[,] or malicious

prosecution.’ ” (Emphases in original.) Id.

¶ 24 Despite the fact that the policy in County of McLean, like the Illinois Union policies here,

plainly required the “occurrence” to take place during the policy period, the court in County of

-11­ 1-18-0158

McLean improperly read the policy as if it specifically required the claimant’s injury to take

place during the policy period. The court appears to have reached this conclusion by conflating

the definitions of occurrence and personal injury:

“Construing the terms as a whole, the policy clearly defines ‘personal injury’ as

‘injury *** caused by *** malicious prosecution.’ (Emphasis added.) Accordingly, to

conclude that the ‘occurrence’ resulting in Beaman’s ‘personal injury’ happened

within the policy period, the injury caused by the malicious prosecution must have

taken place within the policy period. In other words, the event that triggers coverage

is the actual injury suffered by the prosecuted party, not the accrual of the tort of

malicious prosecution.” (Emphases in original.) Id. ¶ 33.

As this excerpt of the court’s analysis demonstrates, although the court correctly recognized that

the “occurrence” must take place within the policy period, it incorrectly equated an occurrence

with personal injury, which was defined as an injury caused by malicious prosecution. The

policy, however, specifically provided that an occurrence was any of the offenses listed in the

personal injury definition; it did not provide that an occurrence was the same as a personal

injury, i.e., an injury caused by the listed offenses. As a result of this confusion, the court in

County of McLean focused on the timing of the claimant’s injury and did not actually examine

when the “offense” of malicious prosecution occurs. Accordingly, although the policy in County

of McLean, like the Illinois Union policies here, provided that coverage was triggered by the

“offense” of malicious prosecution, the court in County of McLean interpreted the policy as if it

provided that coverage was triggered by the claimant’s injury, thereby making the decision

irrelevant to our analysis.

-12­ 1-18-0158

¶ 25 That brings us to First Mercury, the case on which defendants primarily rely. Like here,

the issue presented in First Mercury was when coverage was triggered for an underlying claim of

malicious prosecution—at the initiation of the allegedly malicious prosecution or at the

claimant’s exoneration. Also like here, the insurance policy at issue was in effect at the time the

claimant in the underlying malicious prosecution suit was exonerated but was not in effect when

the claimant was initially charged. First Mercury, 2018 IL App (1st) 171532, ¶ 7. The insurance

policy provided that the insurer would cover damages because of personal injury “ ‘caused by an

offense arising out of your business *** but only if the offense was committed *** during the

policy period.’ ” Id. ¶ 8. The term personal injury was defined as an “ ‘injury, other than “bodily

injury,” arising out of one or more of the following offenses.’ ” Id. ¶ 9. Malicious prosecution

was included as one of the offenses listed in the definition of personal injury. Id. Thus, like in the

present case, the insurance policy required that the “offense” of malicious prosecution take place

within the policy period, and the parties disagreed about when that was deemed to have occurred.

Id. ¶ 25.

¶ 26 In answering that question, the First Mercury court disagreed with the defendant’s

contention that the term “offense” referred to the completed tort of malicious prosecution. Id.

¶ 29. The court concluded that the use of the word “offense” did not necessarily indicate an

intent by the parties that coverage under the policy be triggered only by the completed tort of

malicious prosecution. Id. ¶ 30. Instead, the court held that a more straightforward reading of the

term “offense” was that the policy required the offensive conduct to take place within the policy

period. Id. “[A]pplying the common and popular understanding of the word,” the court

concluded that “the policy refers to a wrongful act or conduct committed during the policy

period, regardless of whether the elements of a tort have accrued.” Id. The court also observed

-13­ 1-18-0158

that it defied common sense to characterize the exoneration of an innocent person as offensive or

wrongful conduct and, thus, interpreting the word “offense” to include exoneration would distort

the term’s common and popular understanding. Id. ¶ 32.

¶ 27 As discussed above, we disagree with the First Mercury court’s opinion on the common

understanding of the term “offense,” specifically when it is used to describe a list of legal causes

of action and not wrongful acts or misconduct. Even putting that fundamental disagreement

aside, we note an important factor that distinguishes the language of the First Mercury policy

from the language of the Illinois Union policies. The policy in First Mercury required the offense

to have been “committed” during the policy period, while the Illinois Union policies provide

coverage for claims arising out of an occurrence (i.e., the offense) “happening” during the policy

period. Merriam-Webster defines “commit” as “to carry into action deliberately:

PERPETRATE.” Merriam-Webster Online Dictionary, https://www.merriam­

webster.com/dictionary/commit (last visited Jan. 7, 2019) [https://perma.cc/KP7E-NR8H]. In

contrast, it defines “happen” as “to occur by chance” and “to come into being or occur as an

event, process, or result.” Merriam-Webster Online Dictionary, https://www.merriam­

webster.com/dictionary/happen (last visited Jan. 7, 2019) [https://perma.cc/3RKK-DC6X].

¶ 28 As these definitions make clear, the use of the word “commit” denotes an affirmative,

deliberative act by a person, whereas the use of the word “happen” suggests the completion of a

process or the passive coming into existence of something. Thus, when the term “offense” is read

in the context of the First Mercury policy, which required that the offense be “committed,” it is

not unreasonable to conclude that the parties to the policy intended “offense” to refer to an

affirmative act by the insured, i.e., the initiation of the wrongful prosecution. In contrast, the

Illinois Union policies refer to malicious prosecution “happening” during the policy period,

-14­ 1-18-0158

which supports a conclusion that the parties intended “offense” to refer to the completed tort of

malicious prosecution and not the initiation of the prosecution. This is because a completed tort

“come[s] into being,” while, in contrast, the filing of charges is deliberately “carr[ied] into

action.” Thus, due to this distinction in language and for the other reasons discussed above, we

disagree that we are bound by the interpretation of “offense” utilized in First Mercury.

¶ 29 Defendants make a number of other arguments in support of their position that warrant

discussion. First, defendants, as some of the courts in the above-discussed cases have, argue that

the exoneration of a claimant in a wrongful prosecution claim cannot be considered the trigger

for coverage because there is nothing offensive about the exoneration. Instead, the exoneration is

the judicial system’s first step in rectifying the wrong done to the claimant. This argument is

without merit because it misstates the coverage trigger. The trigger of coverage is not the

exoneration alone but instead is the satisfaction of all the elements of the tort of malicious

prosecution. Although it is true that the claimant’s exoneration is typically the final element of a

claim of malicious prosecution to be met, there is nothing about the exoneration itself that

triggers coverage.

¶ 30 Defendants also argue that if coverage is triggered by the completed tort of malicious

prosecution, then where the same set of facts give rise to claims for both false arrest and

malicious prosecution, it is possible that one insurer would provide coverage for the false arrest

claim while a different insurer would cover the malicious prosecution claim. In addition,

defendants contend that our interpretation of “offense” puts insurers at risk of having to cover

acts that were committed in years past. We do not disagree that these are potential effects of our

interpretation, but we do disagree that they render our conclusion incorrect. If defendants or

insurers do not wish to subject themselves to these possible effects, it is well within their

-15­ 1-18-0158

power—in fact, it rests exclusively within their power—to issue policies that limit or preclude

these effects. Specifically, defendants and other insurers are free to redraft their policies to define

an occurrence based on the insured’s misconduct rather than on the “offense” of malicious

prosecution (i.e., the completed tort). In addition, defendants and other insurers are free to

include retroactive dates in their policies, thereby limiting their risk of exposure for acts

committed in years past.

¶ 31 In sum, we conclude that the language of the Illinois Union policies, when read in

context, is plain in providing that coverage is triggered by the “offense” of malicious prosecution

“happening” within the policy period and the offense of malicious prosecution only happens

once all of the elements of the tort are met. In the present case, that means that the coverage

trigger was Sanders’s exoneration in 2014, which was well within the effective periods of the

Illinois Union and Starr policies. Thus, the trial court erred when it dismissed plaintiffs’ second

amended complaint with prejudice.

¶ 32 Because we conclude that Sanders’s exoneration triggered coverage under defendants’

policies, we need not address plaintiffs’ alternative argument that Sanders’s retrials were

additional triggers for coverage.

¶ 33 CONCLUSION

¶ 34 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed,

and this matter is remanded for further proceedings.

¶ 35 Reversed and remanded.

¶ 36 PRESIDING JUSTICE MASON, dissenting:

¶ 37 I agree with my colleagues that the language of an insurance policy governs its

interpretation and that, depending on the policy language, the same occurrence may be covered

-16­ 1-18-0158

under one policy and not another. But if the offense of malicious prosecution is not committed

when the defendant in the underlying case is exonerated (First Mercury, 2018 IL App (1st)

171532, ¶¶ 35-36), I see no legal or grammatical reason why, under the insurance policies here,

we should conclude that malicious prosecution happens or takes place upon exoneration. Under

the clear and unambiguous language of the Illinois Union/Starr policies, the malicious

prosecution of Sanders happened in 1994 when he was wrongfully charged with murder; it did

not happen in either 2013, when he was retried, or in 2014, when after his third trial, he was

acquitted. Because I believe the trial court properly granted summary judgment to defendants, I

respectfully dissent.

¶ 38 Illinois Union agreed to provide coverage for claims arising out of an occurrence

(defined, in relevant part, as “those offenses specified in the definition of Personal Injury,”

including malicious prosecution) “happening” during the policy period for “Personal Injury”

(defined to include “malicious prosecution”) “taking place” during the policy period. If we

substitute “malicious prosecution” in the policy’s coverage grant, it provides coverage for

“claims arising out of malicious prosecution happening during the policy period for malicious

prosecution taking place during the policy period.” This language may be redundant, but it is not

ambiguous: the occurrence and the personal injury/malicious prosecution giving rise to the claim

must happen and take place during the policy period.

¶ 39 To support the conclusion that the offense of malicious prosecution takes place or

happens when a defendant is exonerated, my colleagues rely on a definition of “offense” from

Black’s Law Dictionary, which includes among its definitions “[a] violation of the law; a crime,

often a minor one.” Black’s Law Dictionary (10th ed. 2014). Black’s Law Dictionary also

defines “offense” as “an intentional unlawful act that causes injury or loss to another and that

-17­ 1-18-0158

gives rise to a claim for damages.” Id. And Merriam-Webster defines offense as “something that

outrages the moral or physical senses”; “the act of attacking”; “the act of displeasing or

affronting”; or “a breach of moral or social code.” Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/offense (last visited Jan. 7, 2019).

[https://perma.cc/KG27-NBK9].

¶ 40 In my view, any one of these definitions, including the one relied on by the majority,

suggests that an “offense” is the wrongful conduct or unlawful act. It was a “violation of the law”

for Chicago Heights police officers to bring false murder charges against Sanders, just as those

false charges constituted an “intentional unlawful act” and “something that outrages the moral

sense.” None of these definitions associates “offense” with a completed tort that triggers the

running of the statute of limitation and the concomitant right to sue. See First Mercury, 2018 IL

App (1st) 171532, ¶ 30.

¶ 41 The overwhelming weight of authority in Illinois supports the conclusion that it is the

commencement of prosecution, and not exoneration, that triggers coverage for malicious

prosecution. See id. ¶ 35 (concluding that “offense” as used in the policy referred to the insured’s

wrongful conduct that led to the claimant’s conviction rather than the claimant’s exoneration,

which could not “logically be considered part of an ‘injury’ to the [claimant]”); Indian Harbor,

2015 IL App (2d) 140293, ¶ 24 (“[T]he 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.” (Internal quotation marks omitted.)); City of

Waukegan, 2017 IL App (2d) 160381, ¶ 48 (explaining that “the time of occurrence in insurance

law is different from the time of accrual in tort law. In insurance law, the time of occurrence is

used to determine when the operative terms of the policy provide coverage. In tort law, the time

-18­ 1-18-0158

of accrual is used to determine when the statute of limitations begins to run, a separate

consideration ***.”); see also City of Zion, 2014 IL App (2d) 131312, ¶¶ 12, 26 (claimant

charged with murder before inception of policy, but exonerated during policy period not entitled

to coverage under policy covering claims for malicious prosecution that “ ‘happens while this

agreement is in effect’ ”); County of McLean, 2015 IL App (4th) 140628, ¶¶ 26, 32-34 (the

“occurrence” of the alleged “personal injury” was each underlying plaintiff’s “arrest and

prosecution, not his exoneration”).

¶ 42 And Illinois is not alone in reaching this conclusion. See Hampton v. Carter Enterprises,

Inc., 238 S.W.3d 170, 177 (Mo. Ct. App. 2007) (“offense” of malicious prosecution occurs upon

the institution of the underlying action as “[t]hat is the point *** at which the defendant invoked

the judicial process against the victim maliciously and without probable cause, causing the

victim’s injury”); Zurich Insurance Co. v. Peterson, 232 Cal. Rptr. 807, 813 (Ct. App. 1986) (the

“occurrence” is the filing of criminal complaint, which triggers coverage under insurance

policy); Harbor Insurance Co. v. Central National Insurance Co., 211 Cal. Rptr. 902, 907 (Ct.

App. 1985) (“[a]lthough favorable termination thus serves to confirm the element of lack of

probable cause, the focus of the wrong is upon the institution of the suit, with malice and without

such probable cause”).

¶ 43 The results reached in these cases dealing with insurance coverage comport with the

point in time at which a prosecution is determined to be “malicious,” i.e., at its outset. See Miller

v. Rosenberg, 196 Ill. 2d 50, 58 (2001) (recognizing that element of claim for malicious

prosecution is showing that the defendant “instituted the underlying suit without probable cause

and with malice”); Howard v. Firmand, 378 Ill. App. 3d 147, 150 (2007) (complaint for

malicious prosecution arose out of petition for order of protection: There must be “an honest

-19­ 1-18-0158

belief by the complainant at the time of subscribing a criminal complaint that another is probably

guilty of an offense; it is immaterial that the accused may thereafter be found not guilty.”

(Emphasis in original and internal quotation marks omitted.)); Johnson v. Target Stores, Inc.,

341 Ill. App. 3d 56, 72 (2003) (“It is the state of mind of the one commencing the prosecution,

and not the actual facts of the case or the guilt or innocence of the accused, that is at issue.”

(Internal quotation marks omitted.)); Turner v. City of Chicago, 91 Ill. App. 3d 931, 937 (1980)

(in malicious prosecution case against prosecutor, “[m]alice *** is proved by showing that the

prosecutor was actuated by improper motives”); see also Beaman v. Freesmeyer, 2017 IL App

(4th) 160527, ¶¶ 57-58 (in order to find police officer liable in malicious prosecution case when

decision to prosecute rests with State’s Attorney, plaintiff must show that the “officer pressured

or exercised influence on the prosecutor’s decision or made knowing misstatements upon which

the prosecutor relied”). Malicious prosecution focuses on the state of mind of the defendant at

the time the underlying proceedings were commenced. Here, Sanders’s acquittal, absent a

showing that the prosecution was malicious, does not give rise to any claim. And because Illinois

Union’s policy covers malicious prosecution that “happens” and “takes place” during the policy

period, the trigger of coverage is when the wrongful prosecution was commenced.

¶ 44 The majority’s attempt to distinguish relevant Illinois authority based on minor

differences in policy language is unpersuasive. I find no meaningful difference between Illinois

Union’s policy language and the language at issue in other Illinois cases, all of which have

reached uniform conclusions. For example, in First Mercury, a case decided by a different

division of this district less than a year ago and very closely analogous to this case, the policy

provided coverage for an “ ‘offense’ ” (read: malicious prosecution) that was “ ‘committed’ ”

during the policy period. 2018 IL App (1st) 171532, ¶ 8. Here, the policy covers an occurrence

-20­ 1-18-0158

(read: malicious prosecution) “happening” and “taking place” during the policy period. There is

no sound reason to reach a polar opposite conclusion regarding the trigger of coverage in this

case, particularly since it unavoidably creates a split of authority within this district.

¶ 45 Unlike the majority, I ascribe little weight to the fact that the policy refers to offenses by

their “proper, legal names” as opposed to the “underlying wrongful acts.” Supra ¶ 20.

¶ 46 First, virtually every liability policy providing coverage for such offenses describes them

by their “proper, legal names.” See, e.g., First Mercury, 2018 IL App (1st) 171532, ¶ 9 (policy

referred to the offense of “malicious prosecution”); Allstate Insurance Co. v. Amato, 372 Ill.

App. 3d 139 (2007) (policy referred to, among other things, offenses of “false arrest,” “wrongful

entry,” “libel,” “slander,” and “defamation of character” (internal quotation marks omitted));

John T. Doyle Trust v. Country Mutual Insurance Co., 2014 IL App (2d) 121238, ¶ 6 (policy

referred to “wrongful eviction,” “wrongful entry,” and “invasion of the right of private

occupancy” (internal quotation marks omitted)); Dixon Distributing Co. v. Hanover Insurance

Co., 244 Ill. App. 3d 837, 842 (1993) (policy listed offenses of “ ‘libel, slander, defamation of

character, discrimination, false arrest, false imprisonment, wrongful eviction, wrongful

detention, malicious prosecution or humiliation’ ”). And, to date, no court has used that common

language to equate the “occurrence” of these offenses with the accrual of a claimant’s right to

sue.

¶ 47 Second, as a practical matter, it would be impossible to draft an insurance policy that

described all of the possible wrongful acts that could give rise to a claim for such offenses. For

example, there are many ways a person can commit the policy’s enumerated offense of

defamation of character. An insured could publish (by speaking, writing or otherwise

disseminating (Goldberg v. Brooks, 409 Ill. App. 3d 106, 110 (2011)) a statement that a third

-21­ 1-18-0158

party committed a crime or is infected with a loathsome communicable disease or lacks integrity

or ability in the performance of duties of office or employment (Tunca v. Painter, 2012 IL App

(1st) 093384, ¶¶ 41-42) or otherwise “expose[s] [the third party] to hatred, ridicule, or contempt”

by damaging the party’s personal reputation, financial reputation, or deterring others from

associating with the third party (Restatement (Second) of Torts § 559 cmt. b, c (1977)). And

these are by no means all of the ways a person can defame the character of another. The same is

true of malicious prosecution. The tort may be committed by the police, the complainant in a

criminal case, the prosecution, or a civil litigant. It can involve, among other things, the

manufacturing of false evidence, the procurement of false testimony, the withholding of

evidence, or the pursuit of a case, civil or criminal, without factual or legal justification or for an

improper purpose. A policy that attempted to articulate all of the wrongful acts that could

possibly give rise to a claim for one of the enumerated offenses would be verbose in the extreme

and, for that reason, unintelligible.

¶ 48 As Illinois Union pointed out at oral argument, the interpretation of the policy adopted by

the majority would invite insurers to selectively decline to write or renew insurance once the

insured’s potential liability for malicious prosecution was raised but before the right to sue—the

trigger of coverage according to the majority—accrued. This case is an excellent example.

Sanders was charged with murder in 1994. The policy period at issue here is November 1, 2013,

through November 1, 2014. By January 2013, in the middle of the previous policy period,

Sanders had enough information to file a federal civil rights lawsuit in which he made detailed

factual allegations about fabricated and withheld evidence and asserted claims against Chicago

Heights and its officers for violations of due process, conspiracy, malicious prosecution, and

intentional infliction of emotional distress. Since Sanders had not yet been acquitted after his

-22­ 1-18-0158

third trial, he admits his malicious prosecution claim was premature. If the majority’s

interpretation of the date the “offense” of malicious prosecution occurs under Illinois Union’s

policy is correct, upon being advised of the federal lawsuit, Chicago Heights’ current carrier,

believing that it could potentially be on the hook for decades of wrongful incarceration, would

likely decline to renew the municipality’s insurance. Any other insurer, understanding that it was

assuming the risk of an adverse judgment once Sanders was exonerated, would either charge an

exorbitant premium, exclude the risk via an endorsement, or refuse to insure the municipality

altogether.

¶ 49 Because I conclude that the offense of malicious prosecution occurs, under the language

of Illinois Union’s policy, when the prosecution is initiated, I would address Sanders’s

alternative argument that his retrials were additional triggers for coverage. This court rejected an

identical argument in City of Waukegan, 2017 IL App (2d) 160381, which I find persuasive.

There, the insured argued that the State’s use of a coerced confession and its continued

withholding of evidence during retrials of the claimant, Juan Rivera, were independent acts

triggering coverage. Id. ¶ 18. We disagreed, stating that “Rivera’s second and third trials were

continuations of his wrongful prosecution, which increased his damages but were not new

injuries.” Id. ¶ 36. The same holds true here. Retrials are new trials on existing charges; they are

not new and separate prosecutions. It is the charging of the claimant, not the trial of the claimant

on those charges, that constitutes an “occurrence” for policy purposes. Other language of Illinois

Union’s policy also supports this result. In its definition of “occurrence,” the policy provides that

“[a]ll damages arising out of substantially the same offense [(read: malicious prosecution)]

regardless of frequency, repetition, the number or kind of offenses *** will be considered as

arising out of one Occurrence.” Sanders’s initial prosecution and his retrials all arose out of the

-23­ 1-18-0158

same false charges against him. As such, the retrials were not independent occurrences triggering

coverage.

¶ 50 For these reasons, I would affirm the decision of the trial court.

-24­