The Eighth Circuit, applying Missouri law, has held that a law enforcement liability insurer has a duty to defend a county and law enforcement officials in a suit alleging violation of the plaintiff’s Fourth and Fourteenth Amendment rights because charges were first filed against the plaintiff during the policy period, even though the complaint against the insureds included a count for an unlawful seizure that occurred before the policy period. Argonaut Great Cent. Ins. Co. v. Lincoln Cty., 2020 WL 1264213 (8th Cir. Mar. 17, 2020). The court also held that neither the policy’s intentional conduct exclusion nor application of Missouri public policy precluded a duty to defend.
The county purchased a law enforcement liability policy with a January 1, 2012 to December 31, 2013 policy period. Before the policy period, the county police brought the plaintiff in for questioning for the murder of his wife and subsequently released him. In early 2012, the county filed related charges against the plaintiff. The plaintiff was initially convicted of murder but, after a retrial, was acquitted. Following his acquittal, the plaintiff sued the county, alleging constitutional violations. In one count, he alleged that the county unlawfully seized him in December 2011. The complaint’s other counts were based on other alleged conduct that occurred in 2012.
The county sought coverage under the policy, but the insurer denied coverage, arguing that the policy had not been triggered because the first alleged wrongful act occurred before the policy period and the conduct exclusion precluded coverage. Since the county first brought charges against the plaintiff during the policy period, the court found coverage was triggered. In concluding that the insurer had a duty to defend, the court cited Missouri wrongful conviction precedent holding that plaintiff’s injury began when charges were filed against him. The court rejected the insurer’s arguments that the injury first occurred in December 2011 by noting that, had the county not taken any further action after that time, the plaintiff likely would not have filed suit.
Finally, the court rejected the argument that there was no possibility of coverage because of the conduct exclusion, noting that the complaint included allegations that the policyholder acted recklessly and incompetently. In so finding, the court noted that applying the conduct exclusion to limit coverage to negligent acts would leave law enforcement entities uninsurable for most § 1983 claims. Accordingly, because there was a possibility of coverage, the insurer had a duty to defend.