A Missouri federal district court, applying Missouri law, has held that an insurer had an obligation under a law enforcement liability policy to defend a county and law enforcement officials in a suit alleging violation of the plaintiff’s Fourth and Fourteenth Amendment rights based on the initiation of prosecution of criminal charges, even though the investigation by the law enforcement officials commenced prior to the policy period.  Argonaut Great Central Ins. Co. v. Lincoln County, Mo., No. 4:17-CV-00762 JAR (E.D. Mo. Aug. 8, 2018).  In addition, the court held that an exclusion for malicious conduct did not preclude coverage for the claim.

A county, several law enforcement officers, and a prosecutor were sued by a man convicted of murder and then later acquitted after an appeal and retrial.  The plaintiff alleged violations of his Fourth and Fourteenth Amendment rights, fabrication of evidence, and failure to investigate another suspect.  The county defendants sought coverage under a law enforcement liability policy.  The insurer denied coverage on the grounds that the suit alleged only intentional acts, that it alleged no Wrongful Acts that were first committed during the policy period, and that several exclusions applied.

The insurer argued that each instance of alleged wrongful conduct was related, and the alleged wrongdoing first occurred when the investigation of the plaintiff began, prior to the policy period.  The court reasoned that under Missouri law a malicious prosecution occurs for the purposes of insurance coverage when the prosecution is instituted.  Analogizing the suit for violation of the plaintiff’s constitutional rights to malicious prosecution, the court held that the wrongful act occurred when the prosecution was commenced, which happened during the policy period.

The court also held that the malicious conduct exclusion did not preclude coverage because the plaintiff also alleged incompetence and reckless indifference to his constitutional rights, which fell short of the “intentional conduct” required for application of the exclusion.