September 29, 2020 Top Story

Conduct Underlying Malicious Prosecution Triggers Coverage

Two jurisdictions diverge on whether acts predating policy are covered

By Martha L. Kohlstrand

Insurance coverage for malicious prosecution claims is triggered by the underlying wrongful prosecution, not exoneration, says the Supreme Court of Illinois. The court held there was no coverage for a judgment entered in favor of a wrongfully convicted man in Sanders v. Illinois Union Insurance Co. By contrast, the Missouri Court of Appeals concluded coverage was available for another wrongfully convicted person in Ferguson v. St. Paul Fire and Marine Insurance Co. Despite the seemingly contradictory results, the cases are more similar than they appear, as both courts applied clear (albeit different) policy language to ascertain coverage, according to ABA Section of Litigation leaders.

The Illinois man, wrongfully convicted and sentenced for robbery, sued the city for malicious prosecution

The Illinois man, wrongfully convicted and sentenced for robbery, sued the city for malicious prosecution

Credit: Hiob | iStockphoto by Getty Images

Rodell Sanders Sues for Wrongful Prosecution

In December 1993, Chicago Heights, Illinois, police officers arrested Rodell Sanders for a robbery he did not commit. Sanders was convicted and sentenced to 80 years in prison. In January 2011, the trial court overturned Sanders’ conviction and vacated his sentence, which was affirmed on appeal in May 2012. Prosecutors retried Sanders in August 2013, which resulted in a mistrial, and again in July 2014, which resulted in an acquittal.

Following his acquittal, Sanders sued the city for malicious prosecution, among other things, and obtained a consent judgment for $15 million in September 2016. The city and Sanders sought coverage under the city’s occurrence-based commercial general liability policies in force between November 1, 2011, and November 1, 2014. The policies covered a “[p]ersonal injury” caused by an offense arising out of your business *** but only if the offense was committed *** during the policy period.’

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