The modern accessibility of DNA testing has led to an unprecedented rise in exonerations of the wrongfully imprisoned and a surge in civil rights lawsuits against public officials and municipalities for suppressing exculpatory evidence. These lawsuits present complex liability issues including qualified immunity, Monell liability, statute of limitations bars, etc.
One of the most complex ancillary issues is whether these public entities are protected for civil rights claims under their insurance programs. Particularly for financially distressed municipalities, the availability of insurance proceeds is often the most critical issue because of the potentially enormous liabilities these entities face resulting from law enforcement misconduct claims.
More often than not, the dispute over coverage hinges on the “trigger issue.” “Trigger” is a shorthand insurance concept used to describe what event must occur before a particular liability policy applies to a given loss. What events “trigger” coverage wholly depend upon the language of each particular insurance contract, just like any other private contract negotiated between two parties. If there is a governing rule in insurance jurisprudence (or Contracts 101), it’s that an insurance contract should be construed as written.
However, over the past few decades, in an effort to limit their coverage obligations, a number of carriers have taken the hardnosed position that only policies in effect at the time of a conviction are “triggered” in civil rights abuse cases (i.e. only those policies provide insurance coverage). These carriers have attempted to advance this “single trigger” argument as a “majority rule” that should apply regardless of the actual language in the policies themselves.
And, unfortunately, these insurers have had some success in convincing courts to adopt this blanket rule, leading at least one frustrated dissenting Eighth Circuit Judge to describe it as a “per se rule” without public policy justification:
The majority’s invalid reason for refusing to enforce the [insurance policies] can only be interpreted as the adoption of a per se rule prohibiting enforcement of multiple trigger insurance coverage in malicious prosecution cases as a matter of policy—no matter what the insurance contract says—merely because it has not been done before. In a case where the terms of the insurance contract are unambiguous and evince a clear intent to cover subsequent damage arising out of a malicious prosecution, the only valid reason for refusing to enforce the contract would be on policy grounds. What is disturbing about the majority’s approach, however, is its decision to invalidate unambiguous contract language as a matter of policy without addressing the propriety of that approach under [state] law. Chicago Ins. Co. v. City of Council Bluffs, 713 F.3d 963, 975 (8th Cir. 2013) (dissent by Judge Kermit Bye).
Lathrop Gage is the only national firm that has successfully litigated against the advancement of a common law “single trigger” rule. We strongly believe such a rule is inconsistent with the fundamental right of parties to contract freely. Such a rule is also contrary to the public policy of ensuring adequate recoveries for civil rights victims and risks forcing financially distressed municipal entities into bankruptcy.
In forthcoming posts, we will discuss the history of the “single trigger” rule, address why the rule is unfair and ultimately unworkable, and highlight some of Lathrop Gage’s successes in getting insurers to provide coverage on a case-by-case basis pursuant to the actual language of their insurance contracts—as opposed to trying to eschew their obligations by relying on a common law “single trigger” rule.
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