                                   2015 IL App (4th) 140628
                                                                                  FILED
                                                                                 June 2, 2015
                                                                                Carla Bender
                                        NO. 4-14-0628                       4th District Appellate
                                                                                   Court, IL
                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT

 THE COUNTY OF McLEAN, JAMES SOUK,                        )    Appeal from
 CHARLES REYNARD, and JOHN BROWN,                         )    Circuit Court of
             Plaintiffs-Appellees,                        )    McLean County
             v.                                           )    No. 13MR214
 STATES SELF-INSURERS RISK RETENTION                      )
 GROUP, INC.,                                             )    Honorable
             Defendant-Appellant.                         )    Albert G. Webber,
                                                          )    Judge Presiding.



              JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
              Presiding Justice Pope and Justice Holder White concurred in the judgment and
opinion.

                                           OPINION

¶1            In May 1994, authorities in McLean County arrested Alan Beaman for the August

1993 murder of Jennifer Lockmiller. In March 1995, a jury convicted Beaman of that offense,

and the trial court subsequently sentenced him to 50 years in prison. In May 2008, however, the

supreme court reversed Beaman's conviction, concluding that the State unlawfully withheld ex-

culpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). People v. Beaman,

229 Ill. 2d 56, 890 N.E.2d 500 (2008). In January 2009, the State dismissed all charges against

Beaman.

¶2            In April 2012, Beaman filed suit in federal court against McLean County; former

McLean County State's Attorney, Charles Reynard; former McLean County Assistant State's At-

torney, James Souk; and former McLean County Deputy Sheriff, John Brown (collectively,
plaintiffs), asserting (1) civil rights violations pursuant to section 1983 (42 U.S.C. § 1983 (2012))

and (2) several state-law tort claims, including malicious prosecution.

¶3                In April 2013, plaintiffs filed in the trial court a complaint for declaratory judg-

ment, seeking a ruling that defendant, States Self-Insurers Risk Retention Group, Inc., was obli-

gated to pay the costs of plaintiffs' legal defense against Beaman's federal lawsuit pursuant to an

insurance policy that was in place when Beaman was exonerated. In June 2014, the court grant-

ed summary judgment in favor of plaintiffs, finding, for purposes of Beaman's malicious-

prosecution claim, that the dismissal of the charges against him in January 2009—not his arrest

or prosecution in the 1990s—constituted the date of the "occurrence" that resulted in his "per-

sonal injury" within the meaning of the insurance policy. Because the court concluded that

Beaman's malicious-prosecution claim ripened during the policy period, it ordered defendant to

pay the cost of plaintiffs' defense against Beaman's federal lawsuit.

¶4                Defendant appeals, arguing that the "occurrence" of Beaman's "personal injury"

within the meaning of the insurance policy was his arrest and prosecution, not his exoneration.

We agree and reverse.

¶5                                        I. BACKGROUND

¶6                The following facts were gleaned from the parties' pleadings and supporting ex-

hibits on file.

¶7                Initially, for clarity, we note that three separate legal proceedings are relevant to

this case: (1) the criminal prosecution, conviction, and ultimate exoneration of Beaman; (2)

Beaman's subsequent federal lawsuit against plaintiffs seeking damages for his wrongful convic-

tion; and (3) plaintiffs' declaratory judgment action against their insurance provider, defendant.

This appeal arises from a final judgment in the declaratory judgment action, in which the trial



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court ordered defendant to pay the costs of plaintiffs' defense against Beaman's federal lawsuit.

The supreme court's decision overturning Beaman's conviction set forth the factual details under-

lying the State's prosecution of Beaman, which we need not repeat. See Beaman, 229 Ill. 2d at

59-71, 890 N.E.2d at 502-08. Suffice it to say, the parties do not dispute that Beaman was inves-

tigated, arrested, tried, convicted, and sentenced during the 1990s. The insurance policy at issue

in this case was in place from March 2008 until March 2009, during which time the supreme

court overturned Beaman's conviction and the State dismissed the charges against him.

¶8              Before turning to the declaratory judgment action and the insurance policy at is-

sue in this appeal, we briefly review the allegations set forth in Beaman's federal lawsuit against

plaintiffs.

¶9                        A. Beaman's Federal Lawsuit Against Plaintiffs

¶ 10            In April 2012, Beaman filed an amended complaint in the United States District

Court for the Central District of Illinois, alleging, in pertinent part, that plaintiffs (along with

other defendants who are not parties to this declaratory judgment action) concealed exculpatory

evidence showing that (1) Beaman did not have the opportunity to murder Lockmiller and (2)

another viable suspect existed. Beaman asserted that Reynard, Souk, and Brown were intimately

involved in the murder investigation and the withholding of material, exculpatory evidence from

Beaman and his defense counsel.

¶ 11            Beaman's complaint set forth the following individual counts pursuant to section

1983: (1) violation of Beaman's constitutional right to due process and a fair trial; (2) conspiracy

to violate Beaman's constitutional right to due process and a fair trial; and (3) "failure to inter-

vene" to prevent a violation of Beaman's right to due process and a fair trial. Additionally,

Beaman's complaint set forth the following individual state-law claims: (1) malicious prosecu-



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tion; (2) civil conspiracy; (3) intentional infliction of emotional distress; (4) respondeat superior;

and (5) indemnification. (We note that each count of Beaman's complaint incorporated, by refer-

ence, his allegation that plaintiffs violated his constitutional rights by concealing exculpatory ev-

idence.)

¶ 12                        B. Plaintiffs' Declaratory Judgment Action

¶ 13            In April 2013, plaintiffs filed the declaratory judgment action at issue in this ap-

peal. In their complaint, plaintiffs alleged that defendant issued an insurance policy to McLean

County for the period of March 2008 through March 2009, which provided coverage for the

county and its employees against third-party claims for personal injury, bodily injury, and prop-

erty damage. Plaintiffs asserted that the policy imposed a duty upon defendant to (1) pay all de-

fense costs for plaintiffs and (2) indemnify plaintiffs for any judgment entered against them in

Beaman's federal lawsuit. (We note that only defense costs are at issue in this appeal because, in

July and August 2013, the federal district court dismissed plaintiffs from Beaman's lawsuit, with

prejudice.)

¶ 14                                   1. The Policy at Issue

¶ 15            The insurance policy defendant issued to plaintiffs from March 2008 until March

2009 contained the following pertinent provisions. (Italicized portions of the policy are set forth,

as in the original policy document, to indicate terms for which the policy provided its own spe-

cific definition.)

¶ 16            Section I of the insurance policy provided, in pertinent part, as follows:

                       "COVERAGE PART I. PUBLIC ENTITY LIABILITY

                COVERAGE (OCCURRENCE COVERAGE)

                       A. Insuring Agreement



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                       [Defendant] agrees to pay on behalf of the insured the

               damages *** which the insured becomes legally obligated to pay

               because of bodily injury, personal injury[,] or property damage to

               which Coverage Part I applies.

                       Coverage Part I applies only if the bodily injury, personal

               injury[,] or property damage is the result of an occurrence during

               the policy period and in the coverage territory."

¶ 17           Section IV, which set forth definitions of terms used in the policy, defined "dam-

ages" as including, among other things, the costs of defending against a legal claim. The policy

defined "personal injury," in pertinent part, as follows:

               "Personal injury means injury (other than bodily injury or property

               damage) caused by one or more of the following offenses:

                       1. False or wrongful arrest, detention, imprisonment[,] or

               malicious prosecution.

                       2. Wrongful entry or eviction or other invasion of the right

               of private occupancy ***.

                       3. A publication or utterance:

                               a. Of libel or slander or other defamatory or dispar-

                       aging material;

                               b. In violation of an individual's right of privacy;

                       4. Piracy, plagiarism, unfair competition, idea misappro-

               priation under implied contract, infringement of copyright, title or

               slogan, registered trade mark, service mark or trade name, arising



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                 out of the insured's advertising activities; or

                         5. Any act which gives rise to any liability under any fed-

                 eral civil rights statute, any state employment related law, or the

                 Fair Labor Standards Act, if such act is committed during the poli-

                 cy period."

The policy defined "occurrence" as follows:

                 "With respect to personal injury, only the offenses defined under

                 personal injury. For any claim for personal injury, the date of the

                 occurrence is the date that the first offense took place or is alleged

                 to have taken place."

¶ 18                                     2. The Parties' Motions

¶ 19             In November 2013, defendant filed a motion for judgment on the pleadings pur-

suant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2012)), ar-

guing that the murder investigation and prosecution of Beaman, which happened almost 15 years

before the policy period began, was the "occurrence" resulting in Beaman's personal injury.

¶ 20             In January 2014, plaintiffs filed a cross-motion for judgment on the pleadings,

contending that (1) defendant was required to pay plaintiffs' defense costs in the federal lawsuit

if the policy covered any one of Beaman's claims and (2) the policy covered Beaman's malicious-

prosecution claim because an element of that tort was the termination of criminal proceedings

against Beaman, which occurred when the State dismissed the charges against him during the

policy period.

¶ 21             In February 2014, the trial court allowed plaintiffs to amend their motion for

judgment on the pleadings by adding, as an alternative form of relief, a motion for summary



                                                  -6-
judgment pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)). Plaintiffs

requested summary judgment because that form of relief, unlike a motion for judgment on the

pleadings, allowed them to present the court with evidence outside the pleadings. Attached as an

exhibit to plaintiffs' motion for summary judgment was the subsequent insurance policy defend-

ant issued to McLean County for March 2010 to March 2011, which had different language than

the policy in place from March 2008 to March 2009. Specifically, the subsequent policy defined

"occurrence" as follows (underlined text indicates language not contained in the March 2008 to

March 2009 policy):

               "With respect to personal injury, only the offenses defined as per-

               sonal injury. For any claim for personal injury, or a series of re-

               lated personal injury offenses, the date of the occurrence is the

               date that the first personal injury offense took place or is alleged to

               have taken place."

Plaintiffs claimed in their motion for summary judgment that defendant's modification of the def-

inition of "occurrence" in the subsequent policy proved that the language in the earlier policy

was ambiguous. Because defendant drafted the earlier policy, plaintiffs argued, any ambiguities

must be construed strictly against defendant.

¶ 22                                3. The Trial Court's Judgment

¶ 23           In June 2014, following a May 2014 hearing, the trial court granted plaintiffs' mo-

tion for summary judgment. In a written order, the court found that Beaman's personal-injury

claims against plaintiffs were not actionable until the State dismissed the criminal charges

against him in January 2009. Because that dismissal happened during the policy period, the

court ordered defendant to pay the costs of plaintiffs' defense against Beaman's federal lawsuit.



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¶ 24           This appeal followed.

¶ 25                                       II. ANALYSIS

¶ 26           Defendant argues that the "occurrence" of Beaman's "personal injury" within the

meaning of the insurance policy was his arrest and prosecution, not his exoneration. We agree.

¶ 27                                   A. Standard of Review

¶ 28           Summary judgment is appropriate where "the pleadings, depositions, and admis-

sions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS

5/2-1005(c) (West 2012). In this case, the trial court's grant of summary judgment was based

upon its interpretation of the insurance policy. We review both the court's ruling on summary

judgment and its interpretation of an insurance policy de novo. Standard Mutual Insurance Co.

v. Lay, 2013 IL 114617, ¶ 15, 989 N.E.2d 591; Rich v. Principal Life Insurance Co., 226 Ill. 2d

359, 371, 875 N.E.2d 1082, 1089 (2007). The supreme court has explained the general rules

governing the interpretation of insurance policies, as follows:

                       "In construing an insurance policy, we must ascertain and

               give effect to the intentions of the parties, as expressed in the poli-

               cy language. [Citation.] The policy must be construed as a whole,

               giving effect to every provision. [Citation.] Unambiguous words

               in the policy are to be given their plain, ordinary, and popular

               meaning. [Citation.] Where the policy language is ambiguous,

               courts are to construe the policy liberally in favor of coverage.

               [Citation.]" West American Insurance Co. v. Yorkville National

               Bank, 238 Ill. 2d 177, 184-85, 939 N.E.2d 288, 293 (2010).



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¶ 29                                   B. The Policy at Issue

¶ 30           Our analysis begins with the language of the policy describing when coverage ap-

plies (again, as in the original policy document, we italicize terms that are specifically defined in

the policy): "Coverage Part I applies only if the bodily injury, personal injury[,] or property

damage is the result of an occurrence during the policy period and in the coverage territory."

Next, the policy defines "occurrence" as follows: "With respect to personal injury, only the of-

fenses defined under personal injury. For any claim for personal injury, the date of the occur-

rence is the date that the first offense took place or is alleged to have taken place." As relevant

to this appeal, the policy defines "personal injury" as "injury *** caused by *** [the] offense[ of]

*** malicious prosecution."

¶ 31           We note that plaintiffs and defendant disagree over the meaning of "first offense"

as used in the definition of "occurrence." Plaintiffs contend that "first offense" must be inter-

preted on a claim-by-claim basis (i.e., the date the malicious prosecution occurred was the date

that the first malicious prosecution alleged in Beaman's complaint occurred). Defendant, on the

other hand, suggests that "first offense" should be interpreted on a case-by-case basis (i.e., the

date the malicious prosecution occurred was the date that the first personal-injury claim of any

kind alleged in Beaman's complaint occurred). We need not resolve this particular issue, howev-

er, because we conclude that none of the claims in Beaman's complaint—including his mali-

cious-prosecution claim—occurred during the March 2008 to March 2009 policy period.

¶ 32           "[T]o state a claim for malicious prosecution, a plaintiff [(in this case, Beaman)]

must allege facts showing: (1) the defendant [(in this case, plaintiffs)] commenced or continued

an original criminal or civil judicial proceeding; (2) the proceeding terminated in favor of the

plaintiff; (3) there was an absence of probable cause for such proceeding; (4) the presence of



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malice; and (5) damages resulting to the plaintiff." (Emphasis omitted.) Hurlbert v. Charles,

238 Ill. 2d 248, 255, 938 N.E.2d 507, 512 (2010). Plaintiffs argue that because Beaman's mali-

cious-prosecution claim was not fully ripe for adjudication until the criminal proceedings against

him were terminated, the malicious prosecution "took place" when the State dismissed the charg-

es against Beaman. This interpretation is contrary to the plain language of the policy.

¶ 33           Plaintiffs ignore the policy's special definition of "personal injury." Specifically,

plaintiffs erroneously equate the "personal injury" of "malicious prosecution" (as the policy uses

those terms) with the common-law elements of the tort of malicious prosecution. However, the

two are not the same. Plaintiffs' interpretation of "personal injury" fails to construe the terms of

the policy as a whole. Yorkville National Bank, 238 Ill. 2d at 184, 939 N.E.2d at 293. Constru-

ing the terms as a whole, the policy clearly defines "personal injury" as "injury *** caused by

*** malicious prosecution." (Emphasis added.) Accordingly, to conclude that the "occurrence"

resulting in Beaman's "personal injury" happened within the policy period, the injury caused by

the malicious prosecution must have taken place within the policy period. In other words, the

event that triggers coverage is the actual injury suffered by the prosecuted party, not the accrual

of the tort of malicious prosecution.

¶ 34           In this case, Beaman's injury obviously did not occur during the March 2008 to

March 2009 policy period. We must give the term "injury"—which the policy uses to define the

term "personal injury"—its plain, ordinary, and popular meaning. Id. To say that Beaman suf-

fered his "injury" when he was exonerated would be to ignore the plain and ordinary meaning of

the term "injury." As the Second District recently stated in a case strikingly similar to this one,

" 'it is difficult to see how [a criminal defendant's] release from prison can be described as an "in-

jury" in any sense of the word.' " St. Paul Fire & Marine Insurance Co. v. City of Zion, 2014 IL



                                                - 10 -
App (2d) 131312, ¶ 23, 18 N.E.3d 193 (quoting Gulf Underwriters Insurance Co. v. City of

Council Bluffs, 755 F. Supp. 2d 988, 1008 (S.D. Iowa 2010)).

¶ 35           We note that after briefing in this appeal was completed, the Second District de-

cided Indian Harbor Insurance Co. v. City of Waukegan, 2015 IL App (2d) 140293, a declarato-

ry judgment action involving a malicious-prosecution claim and an insurance policy similar to

the policy at issue in this case. In City of Waukegan, the insured parties argued (just as plaintiffs

in this case have argued) that coverage under the policy was triggered at the time the criminal

proceedings were terminated because "that is the final element for the accrual of the tort" of ma-

licious prosecution. Id. ¶ 14. The Second District rejected that argument, holding that "the initi-

ation of the allegedly malicious prosecution is the triggering event for coverage of a malicious-

prosecution claim." Id. ¶ 30. In so holding, the court noted the following:

                       "[The insured] argues that we should read into the policies

               the language that 'personal injury' means 'injury arising out of' ma-

               licious prosecution. The problem with this argument is that [the

               insurer's] policies focus not on the tort of malicious prosecution,

               but on wrongful acts 'which result in' personal injury, as the trig-

               gering event. *** Furthermore, [the insureds'] interpretation ig-

               nores that the wrongful act must occur within the policy period.

               Simply put, the policies do not equate a wrongful act with a com-

               pleted cause of action." Id. ¶ 31.

¶ 36           The City of Waukegan court relied heavily upon its earlier decision in City of Zi-

on, 2014 IL App (2d) 131312, 18 N.E.3d 193, which involved an insurance policy that defined

"personal injury" the same as the policy at issue in this case. The City of Zion court set forth the



                                                - 11 -
relevant provisions of the policy at issue in that case, as follows:

                       "The law enforcement liability section provides, in perti-

               nent part, that [the insurer] will 'pay amounts any protected person

               is legally required to pay as damages for covered injury or damage'

               that (1) 'results from law enforcement activities or operations by or

               for you,' (2) 'happens while this agreement is in effect,' and (3) 'is

               caused by a wrongful act that is committed while conducting law

               enforcement activities or operations.' The policy defines '[i]njury

               or damage' as 'bodily injury, personal injury, or property damage.'

               It defines '[p]ersonal injury,' in pertinent part, as 'injury ***

               caused by *** [m]alicious prosecution.' " (Emphasis added.) Id.

               ¶ 12, 18 N.E.3d 193.

¶ 37           The City of Zion court rejected the insured parties' argument that coverage was

triggered once all the elements of a malicious-prosecution claim were in place. Id. ¶ 14, 18

N.E.3d 193. In an analysis that fully applies to the policy at issue in this case, the court ex-

plained its interpretation of the policy language as follows:

                       "[The insured parties] misconstrue the plain language of the

               policy. Unlike the general liability section, the law enforcement li-

               ability section does not require that the 'offense' of malicious pros-

               ecution be 'committed' while the policy is in effect. Instead, the

               law enforcement liability section provides coverage if the 'injury'

               caused by malicious prosecution 'happens' while the policy is in ef-

               fect. Accordingly, in order to determine whether a malicious-



                                                - 12 -
               prosecution claim triggers coverage under the law enforcement lia-

               bility section, we need to determine when the 'injury' resulting

               from malicious prosecution 'happens,' not when the 'offense' is

               'committed.' " Id.

The Second District concluded that the malicious-prosecution injury happened when the plaintiff

was arrested and prosecuted—not when he was exonerated—"because the favorable termination

of a malicious prosecution marks the 'beginning of the judicial system's remediation' of the

wrong committed, not the commencement of the injury or damage." Id. ¶ 23, 18 N.E.3d 193

(quoting Newfane v. General Star National Insurance Co., 14 A.D.3d 72, 78 (N.Y. App. Div.

2004)). Likewise, in this case, we conclude that Beaman's personal injury—that is, the "injury

*** caused by *** malicious prosecution"—"took place" when Beaman was arrested and prose-

cuted.

¶ 38           In reaching its holding, the City of Zion court noted that the tort of malicious

prosecution is sui generis. Id. ¶ 22, 18 N.E.3d 193. Citing the New Jersey Superior Court case

of Muller Fuel Oil Co. v. Insurance Co. of North America, 232 A.2d 168, 175 (N.J. Super. Ct.

App. Div. 1967), the City of Zion court explained the unique nature of malicious-prosecution

claims for purposes of determining insurance coverage:

               "[I]n the negligence context, the sustaining of damages is the final

               element that marks accrual of the cause of action; thus, the occur-

               rence triggering insurance coverage is simultaneous with the ac-

               crual of the cause of action. [Citation.] In the malicious-

               prosecution context, by contrast, the sustaining of damages is not

               the final element. [Citation.] Rather, the cause of action accrues



                                               - 13 -
               when the criminal proceeding has been favorably terminated. [Ci-

               tation.] According to the [Muller] court, this explains why the oc-

               currence triggering insurance coverage of a malicious-prosecution

               claim may precede the accrual of the cause of action. [Citation.]"

               City of Zion, 2014 IL App (2d) 131312, ¶ 22, 18 N.E.3d 193.

¶ 39           The Second District's decisions in City of Zion and City of Waukegan are well-

reasoned and applicable to the policy provisions at issue in this case. Because we conclude that

Beaman's alleged personal injury occurred outside the March 2008 to March 2009 policy period,

the trial court erred by granting summary judgment for plaintiffs.

¶ 40                                  III. CONCLUSION

¶ 41           For the reasons stated, we reverse the trial court's judgment and remand for fur-

ther proceedings.

¶ 42           Reversed and remanded.




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