This article was originally published in Law360

In Sanders v. Illinois Union Insurance Company, the Supreme Court of the State of Illinois resolved a split in state and federal decisions applying Illinois law on trigger of coverage in the context of wrongful incarceration.[1]

According to the Illinois Supreme Court, the City of Chicago Heights’ insurers had no coverage obligation under policies in effect when the claimant was retried for murder and exonerated, two decades after the initiation of the prosecution. As a result, Illinois law on trigger of coverage for wrongful incarceration lawsuits is now on all fours with decisions by courts nationwide.


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A Nebraska state trial court, applying Nebraska law, has held that law enforcement liability coverage for malicious prosecution claims is triggered solely when an individual is charged, rejecting several alternate trigger theories put forward by the insured county.  Gage Cty., Neb. v. Neb. Intergovernmental Risk Mgmt. Ass’n, No. CI 17-0339 (Neb. Dist. Ct. Oct. 10, 2018).  In so holding, the court joined a majority of jurisdictions that have considered the issue.

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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.

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