                  Not for Publication in West's Federal Reporter

            United States Court of Appeals
                         For the First Circuit

No. 08-1890

                              ERIC SARSFIELD,

                          Plaintiff, Appellant,

                                       v.

            GREAT AMERICAN INSURANCE COMPANY OF NEW YORK,
             GREAT AMERICAN ALLIANCE INSURANCE COMPANY,
                  GREAT AMERICAN ASSURANCE COMPANY,

                         Defendants, Appellees.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Rya W. Zobel, U.S. District Judge]


                                    Before

              Boudin, Siler*, and Howard, Circuit Judges.


     William G. Beck, with whom Michael S. Cessna, Ian Hale, Barry
C. Scheck, and Deborah L. Cornwall, were on brief for appellant.
     John P. Graceffa, with whom Richard W. Jensen, and Thomas M.
Prokop, were on brief for appellees.




                                July 1, 2009




     *
         Of the Sixth Circuit, sitting by designation.
            SILER, Senior Circuit Judge.             Plaintiff Eric Sarsfield

appeals the district court’s grant of summary judgment in favor of

defendant Great American Insurance Company of New York.                       The

district court found that Sarsfield’s complaint against the City in

the underlying action did not allege a wrongful act during the

policy period, and therefore Great American did not have a duty to

defend or indemnify.          Sarsfield appeals the grant of summary

judgment.    For the following reasons, we affirm.

                                        I.

            Sarsfield was convicted of rape in 1987 and served almost

ten years in prison.          In 2000, he was exonerated based on DNA

evidence.     He then sued the City of Marlborough, Massachusetts,

and several of its employees for federal civil rights and state law

claims arising out of his arrest, prosecution, and imprisonment.

Reading     the   complaint    as   a    whole,      including     the   detailed

allegations of the individual counts, a reasonable reader would

conclude that Sarsfield was complaining about two different forms

of misconduct by the police:

            First, that the police engaged in a highly suggestive

identification process that coerced the victim of the rape to

identify Sarsfield as her rapist.             Compounding matters, the police

did   not   disclose   in   connection        with   the   trial   the   victim’s

hesitancy in identifying Sarsfield, nor the measures taken by the

police department to make it appear to the victim that Sarsfield


                                        -2-
was the rapist (including requiring Sarsfield to wear the rapist’s

jacket during a one-on-one identification).

           Second, that one of the police officers drafted a police

report   that   falsely    stated   that   Sarsfield    had    made   several

incriminating statements.       The report “turned up” only three days

before trial, but the only issue before the trial judge was its

timing, not its veracity.       It appears that the report was entered

into evidence with the police officer testifying to its contents at

trial as a rebuttal witness to Sarsfield.

           In   response   to   Sarfield’s   suit,     the    City   requested

coverage from Great American, which had issued to the City one-year

general liability policies from 1991-2000.           Great American denied

the request, and the City entered into a settlement with Sarsfield.

It stipulated the City’s liability, provided for a $2 million

settlement payment, and assigned to Sarsfield its right to recover

defense costs, the settlement payment, and any other recoverable

costs, expenses, damages, fees and penalties.

           The district court held a bench trial on damages, entered

final judgment against the City pursuant to the stipulation, and

awarded Sarsfield approximately $13 million in damages.              Sarsfield

sought to recover the portion of the judgment allocated for the

time period after July 1, 1991 ($11,615,940), plus attorneys’ fees

and costs for the underlying suit.




                                    -3-
             The parties filed cross-motions for summary judgment.

Sarsfield asserted that Great American breached its duty owed to

the   City   by    not   defending       and       indemnifying      the     City    in    the

underlying suit.         Great American asserted that it had no duty to

defend or indemnify.           The district court denied Sarsfield’s motion

and   granted      Great       American’s      motion        for    summary       judgment,

concluding that Great American did not have a duty to defend or

indemnify the City.

                                             II.

             “We    review     de    novo    the     grant    or    denial    of     summary

judgment, as well as pure issues of law.”                    Rodriguez v. Am. Intern.

Ins. Co. of P.R.,          402 F.3d 45, 46-47 (1st Cir. 2005) (internal

citations omitted).            “The presence of cross-motions for summary

judgment neither dilutes nor distorts this standard of review.”

Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).

“The interpretation of an insurance contract and the application of

policy language to known facts present questions of law for the

judge to decide.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co.,

788   N.E.2d      522,   530    (Mass.       2003).      The       parties    agree       that

Massachusetts law controls.

             Massachusetts          courts     use    general      rules     of     contract

interpretation to construe an insurance policy.                        Brazas Sporting

Arms, Inc. v. Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 4 (1st

Cir. 2000).        The duty to defend is broader than the duty to


                                             -4-
indemnify.      Boston Symphony Orchestra, Inc. v. Commercial Union

Ins. Co.,    545 N.E.2d 1156, 1158 (Mass. 1989).           “The duty to defend

is based on the facts alleged in the complaint and those facts

which are known by the insurer.”              Id.    We have described the

analytical framework for duty-to-defend cases:

     [T]he question of the initial duty of a liability insurer
     to defend third-party actions against the insured is
     decided by matching the third-party complaint with the
     policy provisions: if the allegations of the complaint
     are “reasonably susceptible” of an interpretation that
     they state or adumbrate a claim covered by the policy
     terms, the insurer must undertake the defense.

Herbert   A.    Sullivan,    Inc.,   788    N.E.2d   522    at    530   (internal

quotation      marks   and   citations      omitted).            Generally,    the

policyholder bears the initial burden of proving coverage.                    Camp

Dresser & McKee, Inc. v. Home Ins. Co., 568 N.E.2d 631, 633 (Mass.

App. Ct. 1991).

                                     III.

            Sarsfield bases his claim for insurance coverage upon the

Law Enforcement Liability (“LEL policy”) coverage included in the

general liability policies from 1991 through 2000, specifically

relying on the policy which became effective on July 1, 1992.                  The

policies contained the following relevant language:


     We will pay those sums that the Insured becomes legally
     obligated to pay as damages because of “wrongful act(s)”
     which result in:

     1. personal injury;
     2. bodily injury;
     3. property damage;

                                     -5-
    caused by an “occurrence” and arising out of the
    performance of the Insured’s duties to provide law
    enforcement activities. This insurance applies to
    “wrongful act(s)” which occurs in the “coverage
    territory” and during the policy period.

    We will have the right and duty to defend any “suit”
    seeking those damages.
    . . . .
    1. “Bodily Injury” means bodily injury, sickness or
    disease sustained by a person, including death resulting
    from any of these at any time.
    . . . .
    3. “Occurrence” means an event, including continuous or
    repeated exposure to substantially the same general
    harmful conditions.
    4. “Personal Injury” means injury, other than “bodily
    injury,” arising out of one or more of the following
    offenses:
    . . .
          c. false arrest, detention or imprisonment;
          d. malicious prosecution;
          . . .
          f. humiliation or mental distress;
          . . .
          i. violation of civil rights protected under 42 USC
          1981 ET sequential
          [sic] or state law;
    . . . .
    7. “Wrongful Act(s)” means any or all of the following:
          a. actual or alleged errors;
          b. misstatement or misleading statement;
          c. act or omission; or
          d. negligent act or breach of duty;
          by any Insured while performing law enforcement
          duties.


         Sarsfield argues that the “wrongful acts” occurring after

1992 were the City police officers’ conduct in affirmatively

covering up and failing to turn over exculpatory evidence once

Sarsfield was in prison.   As to the “personal injury,” he argues

that the injuries were non-bodily injuries that arose out of the


                               -6-
offenses of denial of parole, denial of access to courts for

post-conviction relief, and having to register as a sex offender.

Great American argues that the “wrongful acts” at issue here are

the   arrest,   malicious   prosecution,   and     false    imprisonment      of

Sarsfield, and since these all occurred before the policy became

effective, they do not trigger coverage.         It asserts that there is

no covered injury because all of the alleged injuries arise out of

offenses, including malicious prosecution and false arrest, which

occurred before 1992.

           The district court first found that Sarsfield’s complaint

did not allege any wrongful act that occurred after 1992.              It said

the only two claims Sarsfield asserted in his complaint that

related to the officers’ ongoing concealment were the claim for

suppression of exculpatory evidence and conspiracy to violate his

constitutional    rights.     It   found   these    to    be    wrongful    acts

occurring before the policy period because these claims were

presented as the officers’ concealment from the prosecutor, and

therefore the wrongful acts ended before Sarsfield was incarcerated

and the policy period began.

           Next, the district court assumed, arguendo, that the

complaint alleged wrongful acts based on the officers’ violation of

a continuing duty to disclose their misconduct.            Even if this were

sufficient, it found that the injuries resulting therefrom were not

distinct   from    the   injuries    incurred      upon        conviction    and


                                    -7-
imprisonment. Further, it found that even if the concealment could

be said to cause a distinct injury, because it first occurred prior

to the policy period, any resulting injury would predate the

policy.    Finally, the court considered whether the concealment

could result in a “continuing injury” and found that it could not

be framed this way because theories of continuing injury only apply

in tort cases which concern injuries which may have existed but

were unknown at the time the insured purchased insurance.1

               Because we find that the complaint itself failed to

allege wrongful acts occurring within the policy period, we affirm

the district court’s holding only to the extent it rested on this

ground.    Finding this sufficient, we do not reach the parties’

arguments relating to that holding.

               The   policy   states   that   the   insurance   “applies   to

‘wrongful act(s)’ which occurs . . . during the policy period.”

This language supports Great American’s argument that this is an

“occurrence policy,” as opposed to a “claims made” policy, as

argued    by    Sarsfield.      “An    ‘occurrence’   policy    protects   the

policyholder from liability for any act done while the policy is in

effect, whereas a ‘claims made’ policy protects the holder only

against claims made during the life of the policy.”             St. Paul Fire

& Marine Ins. Co. v. Barry, 438 U.S. 531, 535 (1978) (citing Barry



     1
       On appeal, Sarsfield explicitly states he does not make a
“continuing injury” argument.

                                       -8-
v. St. Paul Fire & Marine Ins. Co., 555 F.2d 3, 5 n. 1 (1st Cir.

1977)). Therefore, in order for Sarsfield to succeed, he must show

that his complaint is “reasonably susceptible” of an interpretation

that it describes a “wrongful act” that occurred after 1992, when

coverage began.

          The provision of the complaint relied on by Sarsfield to

show he sufficiently alleged a “wrongful act” occurring during the

coverage period is paragraph 53 of his third amended complaint:

     Throughout each year of Mr. Sarsfield’s decade of
     imprisonment, and indeed in each year of Mr. Sarsfield’s
     subsequent parole and after his exoneration, [the
     defendant police officers] continued to cover up their
     misconduct, including that they had used unduly
     suggestive identification procedures with [the rape
     victim], fabricated evidence and testified falsely at Mr.
     Sarsfield’s criminal trial. During each day that passes
     during which defendants refuse to come forward, they
     violate their ongoing duties to Mr. Sarsfield and cause
     him continued suffering. Indeed, to date none of these
     defendants   had   admitted   the   truth   about   their
     misconduct.2

          As   the   district   court   found,   the   only   concealment

specifically discussed was tied to concealment from the prosecutor.

The clause stating that the defendants “continued to cover up their

misconduct” (the “misconduct” being further described as including

the suggestive identification, fabrication of evidence and false


     2
       Paragraph 53 was a statement in the “Facts” section of the
complaint, and each count started off with a statement
incorporating “all of the foregoing,” yet nowhere in the “Counts”
listed   does  Sarsfield   specifically   discuss  this   ongoing
concealment. Each count re-enumerated the relevant facts to the
claim specifically, and no count included any facts specifically
showing ongoing concealment.

                                  -9-
testimony at the trial) is not enough to allege a “wrongful act”

occurring during the coverage period. Therefore, it cannot be said

that Great American, acting as “an objectively reasonable insured,

reading the relevant policy language,” would expect these alleged

“wrongful acts” to be covered.     See Hazen Paper Co. v. United

States Fid. & Guar. Co., 55 N.E.2d 576 (Mass. 1993).

                            IV.

          In sum, Great American had no duty to defend or

indemnify the City for Sarsfield’s cause of action.

          Affirmed.




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