                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0181n.06

                                           No. 19-5948

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 ST. PAUL GUARDIAN INSURANCE COMPANY; )
 PHOENIX INSURANCE CO.; TRAVELERS )                                           FILED
 INDEMNITY COMPANY OF AMERICA,             )                            Mar 30, 2020
                                           )                        DEBORAH S. HUNT, Clerk
       Plaintiffs-Appellees,               )
                                           )
 v.                                        )
                                           )
 CITY OF NEWPORT, KY; MARK BRANDT; )
 NORM WAGNER; PAT MOORE; HOWARD )
                                                                 ON APPEAL FROM THE
 NIEMEIER; SARAH TOLLE, fka Sarah Desentz; )
                                                                 UNITED STATES DISTRICT
 SERGEANT           ROBERT    BRADFORD; )
                                                                 COURT FOR THE EASTERN
 LIEUTENANT TOM FROMME; RICK SEARS,        )
                                                                 DISTRICT OF KENTUCKY
                                           )
       Defendants-Appellants,              )
                                           )
                                           )
 WILLIAM R. VIRGIL; LIEUTENANT COLONEL )
 KEN PAGE,                                 )
                                           )
       Defendants.                         )
                                           )



       Before: STRANCH, BUSH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. After serving twenty‑eight years of his seventy‑year sentence for

murder, William Virgil was released from prison and granted a new trial on the strength of new

DNA evidence. The charges against him were subsequently dismissed. Virgil sued the City of

Newport, Kentucky, and various police officers (collectively, Newport) under 42 U.S.C. § 1983,

alleging, among other claims, malicious prosecution. But that is not this case; this is an insurance

case. St. Paul Guardian Insurance Company, The Phoenix Insurance Company, and The Travelers
No. 19-5948, St. Paul Guardian Ins. v. City of Newport


Indemnity Company of America (collectively, St. Paul) asked the district court for a declaratory

judgment that they have no duty to defend or indemnify the City of Newport and its officers from

Virgil’s lawsuit. The district court granted that judgment. We disagree and therefore REVERSE

and REMAND.

                                                 I.

       Retha Welch was raped and murdered in 1987. In 1988, Virgil was convicted for her

murder and sentenced to seventy years in prison. In 2015, Virgil was released from prison in light

of new DNA testing that excluded him as the source of the semen found on Welch. When a

Kentucky grand jury declined to indict him two years later, the charges against Virgil were

dismissed. After his release, Virgil brought a § 1983 action against Newport, raising several

claims, including malicious prosecution; due process violations for fabricating evidence and

withholding exculpatory evidence; failure to intervene; failure to train, supervise, and discipline

the city’s police officers; and a conspiracy to “frame” Virgil for Welch’s murder.

       From July 2007 to July 2010, St. Paul insured Newport via three one‑year insurance

policies, each of which included an identical law-enforcement liability (LEL) provision.1 The LEL

provision reads as follows:




1
  St. Paul also covered Newport from July 2010 to July 2013 through three additional, though
slightly different, one‑year policies, and Newport argued below that various provisions of all six
policies obligated St. Paul to defend and indemnify Newport. But, on appeal, Newport has
abandoned this argument as to the latter three policies and any provisions other than the LEL
provision of the first three policies (2007-2010). That abandonment, however, comes with a
caveat: Newport maintains that through a “liberalization” provision in the fourth policy, coverage
is available under the fourth policy if it is available under the third policy. St. Paul agrees that
under that provision, Newport gets the benefit of “the broader of the coverage afforded to
[Newport] under the language of the [third policy] or the language of the [fourth] policy.” Thus,
because we conclude that coverage is available under the third policy, it is likewise available under
the fourth policy.

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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


        Law enforcement liability. We’ll pay amounts any protected person is legally
        required to pay as damages for covered injury or damage that:
           • results from law enforcement activities or operations by or for you;
           • happens while this agreement is in effect; and
           • is caused by a wrongful act that is committed while conducting law
               enforcement operations.

The policies define “injury or damage” as “bodily injury, personal injury, or property damage.”

Under the policies, “bodily injury” means “any harm to the health of other persons” and “personal

injury” means any “injury, other than bodily injury, caused by any of the following wrongful

acts[, including] . . . [m]alicious prosecution.”2

        In accord with its reading of those policies, Newport “demand[ed] that [St. Paul] defend

and indemnify [Newport] with respect to [Virgil’s] claims.” In response, St. Paul sought a

declaration from the district court that it had no duty to defend or indemnify Newport under those

policies. Both parties moved for summary judgment. St. Paul argued that the LEL provision of

the policies did not provide coverage “because the personal injury complained of by Virgil

happened decades prior to the [policies’ coverage] periods.” The district court agreed and granted

St. Paul’s motion. Newport timely appealed.

                                                     II.

        “We review a district court’s summary judgment decision de novo, applying the same

standards the district court used.” Franklin Am. Mortg. Co. v. Univ. Nat’l Bank of Lawrence, 910

F.3d 270, 275 (6th Cir. 2018). Summary judgment is proper where “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.




2
  We refer to Newport’s alleged wrongful conduct throughout the opinion as “malicious
prosecution” because the parties agree that “the ‘same rubric’ that applies to malicious prosecution
claims applies to each of the claims in the Virgil Suit” or at least “provides the closest analogy to
claims of the type considered here.” Because the policies also list “[v]iolations of civil rights
protected under federal, state, or local law” as applicable wrongful conduct, we agree.
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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


P. 56(a). We consider the facts and all related inferences “in the light most favorable to the party

against whom summary judgment was entered.” Franklin, 910 F.3d at 275 (quoting Villegas v.

Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)).

       The “only contested issue” on appeal is one of contract interpretation—whether Virgil’s

alleged injuries “happen[ed] while” any of the relevant insurance policies were “in effect.” “As a

general rule, interpretation of an insurance contract is a matter of law for the court.” United

Specialty Ins. Co. v. Cole’s Place, Inc., 936 F.3d 386, 402 (6th Cir. 2019) (quoting Stone v. Ky.

Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 810 (Ky. Ct. App. 2000)). When interpreting

insurance contracts in diversity cases, we “apply Kentucky law in accordance with the controlling

decisions of the Supreme Court of Kentucky.” Id. (quoting Auto Club Prop.-Cas. Ins. Co. v. B.T.

ex rel. Thomas, 596 F. App’x 409, 413 (6th Cir. 2015)). If, as here, “the state supreme court has

not yet addressed the issue presented, we must predict how the court would rule by looking to all

the available data.” Id. (quoting Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450,

454 (6th Cir. 2001)).

       Under Kentucky law, the terms of an insurance contract “which have no technical meaning

in law, must be interpreted in light of the usage and understanding of the common man.” State

Farm Mut. Auto. Ins. Co. v. Slusher, 325 S.W.3d 318, 322 (Ky. 2010) (quoting Bituminous Cas.

Corp. v. Kenway Contracting, Inc., 240 S.W.3d 633, 638 (Ky. 2007)). St. Paul must defend

Newport if any of Virgil’s allegations “potentially, possibly[,] or might come within the coverage

of the policy,” United Specialty Ins., 936 F.3d at 403 (quoting James Graham Brown Found., Inc.

v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky. 1991)). Indeed, “the duty to defend

is broader than the duty to indemnify.” James Graham Brown Found., 814 S.W.2d at 280. We

compare “the allegations in [Virgil’s] underlying complaint with the terms of the insurance policy”



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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


to make both determinations. United Specialty Ins., 936 F.3d at 403 (quoting Westfield Ins. Co. v.

Tech Dry, Inc., 336 F.3d 503, 507 (6th Cir. 2003)).

       The Fifth Circuit recently interpreted the same policy language that we consider here. As

that court noted:

       The . . . policy provides coverage for “injury or damage that . . . happens while this
       agreement is in effect.” That temporal requirement applies only to the injury. The
       two other requirements for coverage—that the injury resulted from the insured’s
       “law enforcement activities” and was “caused by a wrongful act that is committed
       while conducting law enforcement operations”—do not have a temporal limitation.
       [The insurer] thus bargained for an injury‑based trigger of coverage, not an
       act‑based trigger.

Travelers Indem. Co. v. Mitchell, 925 F.3d 236, 241 (5th Cir. 2019) (second alteration in original).

We agree with this reading of the policy and with the Fifth Circuit’s assessment that, “[u]nder the

policy’s plain terms, [the insurer] must defend any claim in which covered injuries occurred” while

the agreements were in effect (here, between July 2007 and July 2010) “regardless of when the

wrongful causal act occurred.” Id. St. Paul seems to agree with this reading as well. See Appellee

Br. at 20 (“[T]he occurrence which triggers coverage is the claimant’s injury, not the

policyholder’s wrongful act.”).

       Two questions then, are vital: What are Virgil’s alleged injuries? And when did they

happen? We look first to what injuries Virgil alleged. See id. Virgil says that he “spent more than

28[ ]years incarcerated for crimes he did not commit,” resulting in “emotional pain and suffering”

and “loss of a normal life,” depriving him of “nearly a decade of life experiences.” But St. Paul

contends that Virgil suffered a “malicious prosecution injury,” which “happened” or was “caused

at the time of the wrongful institution of the legal process.” In St. Paul’s view, the “unlawful

detention that follows simply forms part of the damages for the malicious prosecution injury” that

happened earlier. But St. Paul’s argument misreads the complaint and is contrary to the plain

terms of the LEL provision.
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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


       First, Virgil did not allege a malicious prosecution injury; he raised, among others, a

malicious prosecution claim. The injuries alleged in his complaint are the various harms that were

caused by or flowed from that wrongful act.

       Second, the policies by their terms cover “damages” that the insured is “legally required to

pay” for any “personal injury,” i.e., any “injury caused by any of the following wrongful

acts[, including] . . . [m]alicious prosecution.” Thus, by the plain terms of the LEL Provision,

covered personal injuries include any injuries caused by the wrongful act—malicious prosecution.

Malicious prosecution cannot, therefore, be the injury. The policy does not define the term

“injury” in isolation, but it has been reliably defined elsewhere to mean “a wrong inflicted or

suffered,” or a “[h]urt or loss caused to or sustained by a person.” Injury, Oxford English

Dictionary (2d ed. 1989).

       We believe that this definition is consistent with how a common person would understand

or use the word “injury.” See State Farm Mut. Auto. Ins., 325 S.W.3d at 322. It is also consistent

with Newport’s argument that Virgil’s injury was the “loss of personal liberty and attendant

emotional pain and suffering caused as those years [of imprisonment] passed Virgil by.” And

there is no dispute that such injuries were caused by the alleged wrongful act of malicious

prosecution.

       As to when Virgil’s injuries happened, St. Paul contends that they happened when he was

“criminally charged or bound over for trial.” To support this contention, St. Paul relies on what it

calls the “majority rule.” Under this rule, St. Paul explains, “courts in numerous jurisdictions

have . . . held that malicious prosecution claims trigger coverage under policies in effect only at

the initiation of the prosecution.” St. Paul points to three cases that it says held as much while

analyzing the precise language before us here: St. Paul Fire and Marine Insurance Co. v. City of



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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


Zion, 18 N.E.3d 193 (Ill. App. Ct. 2014), TIG Insurance Co. v. City of Elkhart, 122 F. Supp. 3d

795 (N.D. Ind. 2015), and St. Paul Fire and Marine Insurance. Co. v. City of Waukegan, 82 N.E.3d

823 (Ill. App. Ct. 2017). But only City of Zion offers an extended discussion of the policy language

as applied to a malicious prosecution claim. See 18 N.E.3d at 194–200; see also City of Waukegan,

82 N.E.3d at 833–38 (relying on City of Zion’s reasoning when analyzing when the injury

happened for Brady and compelled‑confession claims); City of Elkhart, 122 F. Supp. 3d at 807–

08 (analyzing the question in one paragraph).

       In City of Zion, St. Paul covered the city at the time the accused was released from prison;

other insurers covered the city when the alleged act of malicious prosecution took place. 18 N.E.3d

at 195. The competing insurers and the court therefore framed the issue before it as “whether the

occurrence triggering coverage under the policy is the commencement of the alleged malicious

prosecution or its termination in favor of the accused.” Id. at 194, 196. Looking at the “plain

language of the policy,” the court concluded that “[f]avorable termination of the prosecution

cannot be the occurrence that triggers coverage, because termination marks the ‘beginning of the

judicial system’s remediation’ of the wrong,” so the alleged “injury results upon the

commencement of a malicious prosecution.” Id. at 197, 200 (citation omitted); see also City of

Elkhart, 122 F. Supp. 3d at 808 (“What seems like the most sensible reading of ‘damage’ caused

by the wrongful law enforcement acts occurred when Parish was falsely arrested, falsely charged,

and falsely convicted.”).    Although we agree that a covered injury does not happen upon

exoneration, we do not agree that the plain language of the policy supports City of Zion’s

conclusion.

       City of Zion treated the question before it as a dichotomy: either the injury occurs at the

time of the commencement of the prosecution or upon exoneration. But nothing in the policy



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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


requires that temporal dichotomy. The only temporal language in the policy is “happens while

this agreement is in effect,” and that temporal language modifies “injury . . . caused

by . . . [m]alicious prosecution.” If, as we explained above, injury is best understood as harm or

loss, the question is when the harm or loss caused by the malicious prosecution happened. There

is no reason to read that language as excluding the possibility that the malicious prosecution caused

harm or loss after the prosecution began but before exoneration.

       Indeed, there are at least two reasons to believe that the policies should not be read that

way. First, as previously noted, these policies feature an “injury‑based trigger of coverage, not an

act‑based trigger.” See Mitchell, 925 F.3d at 241. But to understand injuries caused by the

malicious prosecution to happen only when the malicious prosecution begins comes close to

rewriting the policies as containing an act‑based trigger.

       Second, St. Paul knows how to bargain for the terms it now seeks. The LEL provision in

these very policies states that some forms of property damage are considered “to happen at the

time of the wrongful act that caused it.” This language resembles that found in the “deemer clause”

of the policies St. Paul issued to Newport from July 2010 to July 2013 (the Fourth, Fifth, and Sixth

Polices). The deemer clause in those policies reads: “All ‘bodily injury’, ‘property damage’ or

‘personal injury’ caused by the same ‘wrongful act’ or ‘related wrongful acts’ will be deemed to

occur when the first part of such ‘bodily injury’, ‘property damage’ or ‘personal injury’ occurs.”

St. Paul argues that neither the addition of the deemer clauses in the later policies nor the fact that

the language of the first three policies could have been written to “remove all doubt” should compel

the conclusion that the first three policies trigger coverage for personal injury at any time other

than “the filing of charges.” That might be right. That the parties wrote with more precision in

later contracts is not necessarily conclusive of the earlier contracts’ meaning. But here more



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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


precise language in the same LEL provision of the same policies—“deeming” property damage,

but not personal injury, to have “happen[ed] at the time of the wrongful act that caused it”—

demonstrates that St. Paul knew at the time of the first three contracts how to clearly achieve the

reading it circuitously argues for now.

       We take the policies at face value. They provide coverage for injury that “happens while

the agreement is in effect” and is “caused by . . . [m]alicious prosecution.” As the district court

noted, “every day he spent in prison, Mr. Virgil suffered from injury; obviously, wrongful

imprisonment and the resultant physical and dignitary harms that accompany such confinement

represent[] a continuous and ongoing injury.” St. Paul Guardian Ins. Co. v. City of Newport, 416

F. Supp. 3d 671, 681–82 (E.D. Ky. 2019). Those injuries were caused by the malicious prosecution

and were continuous, that is, they happened repeatedly, during the relevant coverage period. We

conclude that these injuries are covered by the policy language as that language would be used and

understood by the common person, State Farm Mut. Auto. Ins. Co., 325 S.W.3d at 322, and at a

minimum, we cannot say that these injuries are clearly not covered, id. (stating that under Kentucky

law, “ambiguous language must be liberally construed so as to resolve all doubts in favor of the

insured” (quoting Bituminous Cas. Corp., 240 S.W.3d at 638)).

       “At bottom,” St. Paul asks us to say that only “a single moment of injury” triggers coverage

under these policies, “even when the polic[ies’] terms do not.” Mitchell, 925 F.3d at 246. But,

under Kentucky law, these policies “must receive a reasonable interpretation . . . expressed in the

plain meaning and/or language of the contract[s]”; it is not for us to rewrite them. Brown v. Ind.

Ins. Co., 184 S.W.3d 528, 540 (Ky. 2005) (quoting St. Paul Fire & Marine Ins. Co. v. Powell–

Walton–Milward, Inc., 870 S.W.2d 223, 226–27 (Ky. 1994)). Coverage is thus available for July

2007 to July 2010 under the first three policies. And because of the “liberalization” provision, see



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No. 19-5948, St. Paul Guardian Ins. v. City of Newport


fn. 1, supra, coverage is also available from July 2010 to July 2011 under the fourth policy. We

therefore reverse the district court’s conclusion that St. Paul is not obligated to defend or indemnify

Newport against Virgil’s lawsuit.

       Newport also asks us to the hold that St. Paul “cannot deny coverage on the basis of the

‘Criminal Acts’ exclusion nor on the basis that the Newport Defendants were acting outside the

scope of their employment.” These issues were not addressed below because they were rendered

moot by the district court’s grant of summary judgment to St. Paul. Consistent with the “general

rule,” that “a federal appellate court does not consider an issue not passed upon below,” Singleton

v. Wulff, 428 U.S. 106, 120 (1976), we leave it to the district court to address those issues on

remand.

                                                ***

       For the reasons stated, we REVERSE the district court’s grant of summary judgment and

REMAND for further proceedings.




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