In First Mercury Insurance Company v. Ciolino, 2018 IL App (1st) 171532, the First District of the Illinois Appellate Court held that the exoneration of an underlying claimant during a policy period does not trigger personal injury coverage for malicious prosecution. The decision affirmed the judgment of the Circuit Court of Cook County, which held that the insurer did not have a duty to defend its insured for a malicious prosecution claim based on offensive conduct that took place more than a dozen years before the relevant policy period.
The plaintiff in the underlying lawsuit, Alstory Simon, alleged that the insured, a private investigator, conspired in 1999 with a professor affiliated with Northwestern University’s Innocence Project to frame Simon for a 1982 double homicide in order to secure the release of the real killer, who had been previously convicted. Simon specifically alleged that in February 1999, the insured illegally impersonated a police officer to enter Simon’s home and obtained a false confession from Simon through threats, false evidence and “other illegal tactics.” In March 1999, Simon was indicted for murder based on the allegedly false evidence obtained by the insured, and in September 1999 he pleaded guilty to the murder of one of the victims and to the voluntary manslaughter of the other victim. Fourteen years later, the Cook County State’s attorney re-opened its investigation of the underlying homicide, and in October 2014, the State’s Attorney’s office requested Simon’s exoneration. Simon was released the same day. Simon...
