ST. PAUL FIRE AND MARINE INSURANCE COMPANY and TRAVELERS INDEMNITY COMPANY, Plaintiffs-Appellees,
THE CITY OF WAUKEGAN; LUCIAN TESSMANN; DONALD MEADIE; FERNANDO SHIPLEY; RICHARD DAVIS; TERRY HOUSE; ROBERT REPP; BURTON SETTERLUND; and PHILLIP STEVENSON and MARIA LaCOUR, as Representatives of Dennis Cobb and Howard Pratt, Defendants-Appellants.
from the Circuit Court of Lake County. No. 15-MR-289
Honorable Thomas M. Schippers, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with
opinion. Justices Hutchinson and Zenoff concurred in the
judgment and opinion.
1 Defendants, the City of Waukegan and former Waukegan police
officers Lucian Tessmann, Donald Meadie, Fernando Shipley,
Richard Davis, Terry House, Robert Repp, Burton Setterlund,
and Phillip Stevenson and Maria LaCour (as representatives of
deceased Waukegan police officers Dennis Cobb and Howard
Pratt) (collectively, the City), appeal from the trial
court's order granting summary judgment in favor of
plaintiffs, St. Paul Fire and Marine Insurance Company and
Travelers Indemnity Company (collectively, the insurers) and
denying the City's motion for judgment on the pleadings.
For the following reasons, we affirm.
2 I. BACKGROUND
3 The record reflects that Juan Rivera, the plaintiff in the
underlying wrongful conviction case, was arrested and charged
with the rape and murder of 11-year-old Holly Staker in 1992.
Rivera's arrest came after he confessed following four
days of intense questioning. Rivera's confession was
introduced into evidence by the State at his 1993 trial,
after which he was found guilty and sentenced to natural life
in prison. In November 1996, this court reversed Rivera's
conviction due to numerous trial errors but upheld the trial
court's order denying Rivera's motion to suppress
that alleged that his confession was coerced. People v.
Rivera, No. 2-94-0075 (1996) (unpublished order pursuant
to Illinois Supreme Court Rule 23).
4 Rivera was retried in 1998. The State once again introduced
the confession through the testimony of Waukegan police
officers. Rivera was again convicted and sentenced to natural
life in prison. On appeal, this court affirmed the
conviction. People v. Rivera, 333 Ill.App.3d 1092
(2001). Following Rivera's second conviction, DNA testing
excluded Rivera as the source of the semen found in the
victim. Rivera then filed a petition for relief from judgment
pursuant to section 2-1401 of the Code of Civil Procedure
(735 ILCS 5/2-1401 (West 2006)). The trial court granted the
petition and ordered a new trial.
5 The State elected to try Rivera for a third time, and the
trial commenced in May 2009. Rivera's confession was
again presented through the testimony of Waukegan police
officers. Again, Rivera was convicted and sentenced to
natural life imprisonment. This court reversed Rivera's
conviction. People v. Rivera, 2011 IL App (2d)
091060. On January 6, 2012, Rivera was released from prison.
On October 30, 2012, Rivera filed a federal wrongful
conviction complaint against numerous defendants, including
the City of Waukegan and the police officers named in this
6 Rivera's lawsuit alleged various civil rights
violations and common-law tort claims relating to his arrest,
conviction, and 20-year imprisonment. Rivera v. Lake County,
Illinois, et al., No. 12-CV-8665 (Cir. Ct. Lake
Co.). His third amended complaint contained 13 counts and
sought compensatory and punitive damages as well as attorney
fees and costs against the City. In the first six counts of
the complaint, Rivera alleged violations of section 1983 of
the United States Code (42 U.S.C. § 1983 (2012)): (1)
the confession was both coerced and false, which resulted in
a violation of his fifth amendment rights (Rivera alleged
that the confession was the only reason that he was
prosecuted and convicted); (2) the confession was both
coerced and false, which resulted in a violation of his
fourteenth amendment rights; (3) federal malicious
prosecution; (4) due process violations based upon an
allegation that police officers withheld exculpatory evidence
from the prosecution; (5) conspiracy to deprive him of his
constitutional rights; and (6) failure to intervene.
7 The next six counts in the complaint were based upon state
law: (7) malicious prosecution (defendants "accused
Plaintiff of criminal activity and exerted influence to
initiate and continue and perpetuate judicial proceedings
against Plaintiff without any probable cause for doing so and
in spite of the fact that they knew Plaintiff was
innocent"); (8) intentional infliction of emotional
distress; (9) civil conspiracy; (10) defamation; (11)
respondeat superior; and (12) indemnification.
Finally, count XIII was also brought pursuant to section
1983, and in it Rivera alleged a conspiracy to deny access to
8 The record reflects that the insurers provided the City
with a series of one-year primary and umbrella law
enforcement liability policies covering the period from
November 1, 2006, through November 1, 2010. Travelers
provided the City with similar primary and umbrella coverage
for the period from November 1, 2010, through November 1,
2011. The City tendered the Rivera complaint to the insureds
for defense and indemnification. On February 24, 2015, the
insureds filed this action and sought a declaratory judgment
pursuant to section 2-701 of the Code of Civil Procedure (735
ILCS 5/2-701 (West 2014)). The insurers alleged that they had
no duty to defend or indemnify any of the defendants in the
Rivera wrongful conviction lawsuit. While this coverage suit
was pending, the Rivera lawsuit settled for $20 million. See
In re Marriage of Rivera, 2016 IL App (1st) 160552,
¶ 4. According to a letter from counsel for the City to
counsel from Travelers, the City agreed to pay its share
($7.5 million) to Rivera in exchange for the dismissal with
prejudice of all claims.
9 The insurers' complaint for declaratory judgment
alleged that the policies issued to the City did not provide
coverage, because the policies' coverage was triggered
only by injury or damage that happened while the policies
were in effect. They argued that Rivera's injuries, as
alleged in his complaint, occurred in 1992 when he was
coerced into providing a false confession and in 1993 when he
was tried and convicted.
10 In its pleadings, the City alleged that the 2008-09 law
enforcement liability policies were triggered by
"wrongful acts" that occurred during Rivera's
third trial, specifically, the use of Rivera's coerced
confession in violation of the fifth amendment and
suppression of exculpatory evidence pursuant to Brady v.
Maryland, 373 U.S. 83 (1963).
11 The parties agree that the policies at issue are the
November 1, 2008, to November 1, 2009, primary and umbrella
law enforcement liability (LEL) policies, which were in
effect during Rivera's third trial.
12 The relevant policy terms are stated in the "Law
Enforcement Liability Protection" section of the 2008-09
primary policy, as modified by a "Law Enforcement
Liability Self-Insured Retention Endorsement." The
section provides, in pertinent part:
"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
*happens while this agreement is in effect; and
*is caused by a wrongful act that is committed while
conducting law enforcement activities or operations.
Injury or damage means bodily injury, personal
injury, or property damage.
Personal injury means injury, other than bodily
injury, caused by any of the following wrongful acts:
*False arrest, detention, or ...