                                                                                Opinions of the United
2006 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

12-20-2006

Nelson v. Hill
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5138

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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-5138
                                   ________________

                              TERRY NELSON, Appellant

                                            v.

GEORGE W. HILL; J.D. CAULFIELD; TOM SAVAGE; M. LEVANDOWSKI, Major;
   V. LAT; S. HARDGROVE, Each individually and collectively, in their official
                        capacities; ANNA BATES
                           ________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. Civ. No. 04-cv-00910)
                     District Judge: Honorable Legrome D. Davis
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 21, 2006

                Before: RENDELL, AMBRO and ROTH, Circuit Judges

                               (Filed: December 20, 2006)
                                    ________________

                                       OPINION
                                   ________________

PER CURIAM

             Terry Nelson, a prisoner proceeding pro se, filed this complaint in the

United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C.

§ 1983. The complaint arises from circumstances occurring while Nelson was
imprisoned at the Delaware County Prison. The complaint brings claims against George

W. Hill, superintendent; Tom Savage, deputy warden; Major M. Levandowski, chief of

security; and Anna Bates, lieutenant.1 Nelson asserts that the Defendants have violated

his civil rights by: (1) denying him cigarettes and/or a tobacco supplement to help with

his nicotine addiction (Claim I); (2) arbitrarily and capriciously handing out discipline

(Claim II); and (3) providing inadequate prison conditions while he was a pretrial

detainee (Claim III).2

              Defendants Hill, Savage, Levandowski and Bates successfully moved for

summary judgment in the District Court. With respect to Claim III, the District Court

found that the Defendants were entitled to qualified immunity. The District Court

separately analyzed Claims I and II and granted summary judgment in favor of the

  1
    Nelson’s complaint also raises claims against J.D. Caulfield, S. Hardgrove and V. Lat.
The District Court dismissed the claims against these Defendants without prejudice
pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve. Nelson does not
argue on appeal that this dismissal without prejudice was improper. Therefore, any
argument Nelson could have with respect to their dismissal from the action is deemed
waived. See e.g., Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 192 (3d Cir. 2005).
  2
    In the complaint, Nelson also alleges that the Defendants violated his civil rights by
inadequately providing him access to the prison law library. However, Nelson does not
make any argument on appeal that the District Court improperly granted summary
judgment in favor of the Defendants on this claim. Thus, any argument Nelson could
have with respect to this claim is deemed waived. See Harvey, 421 F.3d at 192.
Furthermore, the complaint also asserts an Eighth Amendment claim against the
Defendants regarding the prison conditions after Nelson was convicted in August 2004.
The District Court granted summary judgment in favor of the Defendants on this claim
and Nelson does not contest this ruling on appeal. Thus, any argument Nelson could have
with respect to this claim is also deemed waived. See id.

                                              2
Defendants.3

               We review the grant of summary judgment de novo. See McGreevy v.

Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is proper when, viewing

the evidence in the light most favorable to the non-movant, there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See Saldana

v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); FED. R. CIV. P. 56(c).

               In Claim II, Nelson argues that the Defendants violated his constitutional

rights by subjecting him to arbitrary and capricious discipline. Nelson notes several times

that he was locked in his cell for short periods of time “without warning or a disciplinary

hearing.” We note that in determining whether restrictions are reasonably related to the

government’s interest in maintaining order and operating a prison in a manageable

fashion, such restrictions are generally within the expertise of the prison officials. See

Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979). In the absence of substantial evidence in

the record to indicate that officials exaggerated their response, we should normally defer

to the prison official’s judgment. See id. We agree with the District Court that Nelson

  3
    Alternatively, the District Court held that summary judgment was warranted because
Nelson failed to show the personal involvement of Defendants Hill, Savage, Levandowski
and Bates with respect to all three of the claims on appeal. See Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). We agree with this holding with
respect to Defendants Hill, Savage and Levandowski on all three claims and to Defendant
Bates with respect to Claim I. Indeed, as to Defendants Hill, Savage, and Levandowski,
Nelson proceeds purely on a respondeat superior theory, which we have held is
unavailing. Hampton v. Holmsbrug Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976).
As to Defendant Bates, Nelson has provided no evidence of her involvement in denying
him cigarettes or nicotine supplements. Thus, we will limit our remaining discussion
only to Claims II and III.

                                              3
has failed to show that locking him in his general population cell was an exaggerated

response.4 Thus, summary judgment was properly entered with respect to Claim II.

              With respect to Claim III, Nelson alleges that he was forced to sleep on a

mattress on the floor of a cell meant for two prisoners (“triple-celling”) and that he was

subjected to cold cell temperatures while he was a pretrial detainee. In the pretrial

detainee setting, a claim asserting unconstitutional conditions of confinement is reviewed

pursuant to the Due Process Clause. See Hubbard v. Taylor, 399 F.3d 150, 158 (3d Cir.

2005). The test is whether the challenged conditions amount to punishment under the

Due Process Clause. See id. Absent a showing of express intent to punish, the

determination will normally turn on whether the conditions have an alternative purpose

and whether the conditions appear excessive in relation to that purpose. See id. (citing

Bell, 441 U.S. at 538-39). The inquiry into whether given prison conditions constitute

punishment under the Due Process Clause considers the totality of the circumstances

within a given institution. Hubbard, 339 F.3d at 160.

              Ultimately, the District Court found that the Defendants were entitled to

  4
    In the complaint, Nelson also alludes to being placed in a disciplinary unit after he
violated prison rules by possessing cigarettes. A disciplinary hearing was held and
Nelson was found guilty and sentenced to twenty days in the disciplinary unit. Nelson
ultimately spent twenty-four days in the disciplinary unit. However, Nelson has not
shown any personal involvement of any of the Defendants regarding this additional time
spent in the disciplinary unit. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988); Hampton, 546 F.2d at 1082. Thus, to the extent Nelson includes this claim as part
of Claim II, summary judgment was properly entered in favor of the Defendants.

                                             4
qualified immunity with respect to Claim III. For the following reasons, we agree.5 A

two-part test is used to determine whether an official is entitled to qualified immunity.

See Saucier v. Katz, 533 U.S. 194, 200-02 (2001). First, a court must determine whether

the official’s conduct violated a constitutional right. See id. at 201. Second, a court must

determine whether the constitutional right was clearly established at the time of the

official’s action. See id. A government official can be held liable for official action only

where the contours of the particular right allegedly violated are sufficiently clear that a

“reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). To determine this, the facts of the case

are analyzed in light of the relevant case law existing at the time of the alleged conduct.

See McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001). “The qualified immunity

standard ‘gives ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.’” Gilles v. Davis, 427 F.3d 197, 203

(3d Cir. 2005)(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).

              In his brief, Nelson argues that his rights associated with “triple-celling”

were sufficiently clear at the time of the Defendants’ actions based on Union County Jail

Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983). Recently, this Court re-examined

Union County and found that its discussion of “triple-celling” was dicta. See Hubbard,

  5
    Our finding that defendants are entitled to qualified immunity is limited to claims
brought against them in their individual capacity. However, any claim that Nelson may
have against defendants in their official capacity is deemed waived, as he has failed to
raise it on appeal. See Harvey, 421 F.3d at 192.

                                              5
399 F.3d at 163. In Hubbard, however, we declined to address the issue of “triple-

celling” in the pretrial detainee context. We remanded the matter back to the District

Court because the District Court had improperly applied the Eighth Amendment standard

when it should have applied the Due Process Clause standard. See id. at 166-67.

Therefore, in the context of this case, we find that the issue of “triple-celling” in the

pretrial detainee context was not clearly established at the time of the Defendants’

actions. Additionally, this Court has not set forth the precise contours of whether cold

temperature, in and of itself, is enough to establish a due process claim in the pretrial

detainee context. But see Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir.

1996)(stating that cold temperatures in prison and failing to provide blankets states a

claim under the Due Process Clause).6 As such, we agree that summary judgment was

properly entered on this claim.

              In conclusion, we will affirm the grant of summary judgment in favor of the

Defendants.

  6
    Even if the law with respect to cold cell temperatures was sufficiently clear at the
time the Defendants acted, summary judgment would still be proper on this claim. The
Defendants noted that the prison temperature is centrally controlled by a computer at
seventy degrees Fahrenheit at all times. Furthermore, Nelson has not come forward with
evidence that the Defendants failed to provide proper attire or blankets to combat the
purported cold cell temperatures.

                                               6


                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 96-3695
                                   _____________

Society National Bank, a National       *
Banking Association,                    *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of Nebraska.
Parsow Partnership, Ltd., a Nebraska    *
limited partnership; Alan S. Parsow,    *
                                        *
             Appellants.                *
                                  _____________

                                 Submitted: May 22, 1997
                                     Filed: August 11, 1997
                                  _____________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              _____________

BOWMAN, Circuit Judge.

       Society National Bank ("Society") served as the subscription and distribution
agent in connection with a securities offering. In the course of the offering, Society
mistakenly issued 28,750 shares and warrants to Alan Parsow and his investment
partnership, Parsow Partnership, Ltd. (collectively "Parsow"), who, in turn, paid the
subscription price of $230,000 for these securities. Based on a determination of mutual
mistake, the District Court1 rescinded the transaction and ordered Parsow to return the
securities and Society to refund the purchase price. Additionally, Parsow was awarded
interest at the statutory rate of six percent per annum for the period beginning on the
date the offering closed and ending on the date Society first advised Parsow of the
mistake and offered to rescind the transaction. On appeal, Parsow challenges only the
interest component of the District Court's decision. We affirm.

       Because the District Court's determination that the purchase and sale of the
securities in question resulted from the parties' mutual mistake has not been appealed,
we forego a detailed recitation of the circumstances in which the mutual mistake
occurred. Instead, we turn directly to Parsow's arguments that he has been
undercompensated by the District Court's award of interest.

       As part of its remedy, the District Court awarded Parsow interest, pursuant to
Neb. Rev. Stat. § 45-102 (1993), at the rate of six percent per annum on the principal
sum of $230,000 for the period from January 27, 1993 (the date the rights offering
closed) to June 9, 1993 (the date of a letter whereby Society first informed Parsow of
the mistake and offered to rescind the transaction). The court reasoned that from
June 9, 1993 forward, any loss in interest resulting from the $230,000 outlay should
rest with Parsow and not with Society. If Parsow had accepted Society's June 9, 1993
offer of rescission, then Parsow would have had the $230,000 back and could have
invested it as he saw fit, while still retaining the option to seek to recover from Society
any additional amount he believed he was owed.

      Parsow argues that the District Court erred in failing to award him interest on the
$230,000 from June 9, 1993 through the date of the court's judgment. Moreover,

      1
        The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.

                                           -2-
Parsow argues that he is entitled to statutory interest at the rate of twelve percent per
annum pursuant to Neb. Rev. Stat. § 45-104 (1993).

        In a federal diversity action, the law of the state where the cause of action arises
governs the award of prejudgment interest. See Fremont Nat'l Bank & Trust Co. v.
Collateral Control Corp., 724 F.2d 1410, 1415 (8th Cir. 1983). Under Nebraska law,
a trial court's decision to award interest as part of an equitable remedy is reviewed for
abuse of discretion. See Newton v. Brown, 386 N.W.2d 424, 432 (Neb. 1986).

       "'[I]nterest is sometimes allowed by courts of equity, in the exercise of a
       sound discretion, when it would not be recoverable at law. These courts,
       it has been said, will, in their discretion, allow or withhold interest as,
       under all the circumstances of the case, seems equitable and just, except
       in cases where interest is recoverable as a matter of right.'"

Id. (quoting Mid-States Equip. Co. v. Poehling, 285 N.W.2d 689, 691-92 (Neb. 1979)
(further citation omitted)). Parsow argues that because a rescission, such as was sought
in this case, does not become effective until a court so decrees, the June 9, 1993 letter
from Society did not act to rescind the securities transaction; therefore, the letter should
not mark the point at which interest on the $230,000 ceases to accrue. Additionally,
he argues, notice, such as that provided to Parsow by Society's letter, is of no legal
significance in a case in equity where rescission is the remedy sought.

       Parsow's arguments concerning the unique nature of equitable claims for
rescission miss the point. While rescission in such cases is not effective until a court
so decrees, see Kracl v. Loseke, 461 N.W.2d 67, 73 (Neb. 1990), Parsow's focus on
the timing of the rescission fails to consider adequately the broader notions of fairness
and equity that the District Court considered. "'Interest is not recovered according to
a rigid theory of compensation for money withheld, but is given in response to
considerations of fairness; it is denied when its exaction would be inequitable.'"

                                            -3-
Newton, 386 N.W.2d at 432 (quoting 47 C.J.S. Interest & Usury § 6, at 28 (1982)); see
also Welch v. Welch, 519 N.W.2d 262, 274 (Neb. 1994) (stating that court of equity
has discretion to award interest when it is "reasonable and just"). As Parsow's counsel
conceded at oral argument, June 9, 1993 marked the time at which both Society and
Parsow realized that a mistake had been made. Although Parsow took the position that
the mistake was Society's alone, the District Court rejected that position. Given the
unappealed determination of mutual mistake, we cannot say that the District Court
abused its discretion by treating Parsow's decision to withhold the shares after learning
of the mistake as shifting the equities against an award of interest on the $230,000 from
June 9, 1993 forward. In evaluating the equities of the situation, the appreciation of the
securities while Parsow held them is of no moment, because he was never entitled to
ownership. Similarly misplaced is Parsow's argument that notice of putative grounds
for rescission before suit is unnecessary and thus that Society's letter is of no legal
consequence. While such prior notice is neither a prerequisite to a suit nor sufficient
to effectuate a rescission, see Haumont v. Security State Bank, 374 N.W.2d 2, 7 (Neb.
1985), notice such as that provided by Society's letter, carefully explaining the
existence of a perceived mutual mistake, surely qualifies as one of the "'circumstances
of the case'" that determines whether an award of interest "'seems equitable and just.'"
Newton, 386 N.W.2d at 432 (quoting Mid-States Equip. Co., 285 N.W.2d at 692).

         Parsow also challenges the rate of the interest awarded. The District Court
awarded interest at the rate of six percent per annum pursuant to Neb. Rev. Stat. § 45-
102 (1993). Parsow argues that he is entitled to interest at the rate of twelve percent
per annum pursuant to Neb. Rev. Stat. § 45-104 (1993). Determination of the
appropriate statutory rate of interest is purely a question of law, which we review de
novo. See Peterson v. Abbott (In re Estate of Peterson), 433 N.W.2d 500, 501 (Neb.
1988). Section 45-102, entitled "Interest; legal rate; exception," provides: "Interest
upon the loan or forbearance of money, goods or things in action shall be at the rate of
. . . six percent per annum . . . on the unpaid principal balance, unless a greater rate . . .

                                             -4-
be contracted for by the parties." Section 45-104, entitled "Interest; other contract
obligations," provides:

      Unless otherwise agreed, interest shall be allowed at the rate of twelve
      percent per annum on money due on any instrument in writing, or on
      settlement of the account from the day the balance shall be agreed upon,
      on money received to the use of another and retained without the owner's
      consent, express or implied, from the receipt thereof, and on money
      loaned or due and withheld by unreasonable delay of payment.

We are not convinced that either statute is applicable to the case at hand. Cf.
Lienemann v. State Farm Mut. Auto Fire & Cas. Co., 540 F.2d 333, 343 (8th Cir.
1976) (holding § 45-104 inapplicable where "the action lies in tort rather than in
contract"); In re Estate of Peterson, 433 N.W.2d at 502 (holding § 45-102 inapplicable
because "[a] devise under a will is neither a loan nor a forbearance"); I.P. Homeowners,
Inc. v. Radtke, 558 N.W.2d 582, 593 (Neb. Ct. App. 1997) (noting that § 45-104
"allows for interest on certain contractual obligations," but does not provide for interest
on property held in constructive trust). Because this case more closely fits within the
parameters of § 45-102, however, we agree with the District Court's decision to apply
an interest rate of six percent per annum. Cf. Priest v. Priest, 554 N.W.2d 792, 797
(Neb. 1996) (upholding decision to award husband eight percent interest on a deferred
marital property distribution, even though no statute provided for payment of interest
in such a case).

      The judgment of the District Court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                           -5-


                                                                               FILED
                             NOT FOR PUBLICATION                                OCT 13 2011

                                                                            MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS

                              FOR THE NINTH CIRCUIT

ARTHUR PARNELL, III,                                No. 10-16044

               Plaintiff - Appellant,               D.C. No. 4:06-cv-07662-SBA

   v.
                                                    MEMORANDUM *
A. TUCKER, Associate Warden; et al.,

               Defendants - Appellees.

                    Appeal from the United States District Court
                       for the Northern District of California
                 Saundra Brown Armstrong, District Judge, Presiding

                            Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

        California state prisoner Arthur Parnell, III, appeals pro se from the district

court’s order of dismissal and summary judgment in his 42 U.S.C. § 1983 action

alleging denial of the right to practice his Islamic faith in violation of the First

Amendment and the Religious Land Use and Institutionalized Person’s Act

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“RLUIPA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo

both the dismissal of claims for failure to exhaust, Wyatt v. Terhune, 315 F.3d

1108, 1117 (9th Cir. 2003), and the grant of summary judgment, Rene v. MGM

Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en banc). We affirm.

      The district court properly concluded that Parnell failed to exhaust his

administrative remedies as to claims against defendants Binekele and Beguhl for

their alleged refusal to allow him to congregate with other Muslim inmates in the

prison yard for Friday prayers. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (the

Prison Litigation Reform Act requires “proper” exhaustion). Notwithstanding his

mistaken belief that it would be duplicative to file an appeal after grieving a similar

prior incident, Parnell failed give prison officials requisite notice of these claims.

See Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010) (no exhaustion if grievance

is insufficient to put officials on notice of inmate’s complaint).

      The district court properly granted summary judgment on Parnell’s First

Amendment claim against defendants Tucker and Thomas based on the four-factor

test in Turner v. Safley, 482 U.S. 78, 89-91 (1987). Parnell did not raise a triable

dispute as to whether defendants’ failure to allow Parnell to attend certain prayer

services during Ramadan was reasonably related to legitimate penological interests

in security, denied him all religious expression, could be accommodated without a

                                            2                                     10-16044
severe burden on prison resources, or could be readily substituted with alternatives.

See id.; see also O’Lone v. Estate of Shabazz, 482 U.S. 342, 350-53 (1987)

(upholding prison work assignments under Turner that kept Muslim inmates from

Friday prayers but did not preclude them from other religious activities).

      The district court properly granted summary judgment on Parnell’s RLUIPA

claim against defendants Tucker and Thomas because Parnell failed to raise a

triable dispute as to whether being precluded from certain prayer services during

Ramadan significantly restricted his ability to engage in other religious activity.

See 42 U.S.C. § 2000cc-1(a) (no government may impose a “substantial burden”

on religious exercise of a person in an institution); San Jose Christian Coll. v. City

of Morgan Hill, 360 F.3d 1024, 1034-35 (9th Cir. 2004) (government policy

imposes a “substantial burden” if it constitutes a “significantly great restriction or

onus on any exercise of religion” (citations and internal quotation marks omitted)).

      Parnell’s remaining contentions are unpersuasive.

      AFFIRMED.

                                           3                                     10-16044


                            2017 IL App (2d) 160381
                                 No. 2-16-0381
                           Opinion filed August 1, 2017
_____________________________________________________________________________

                                          IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

ST. PAUL FIRE AND MARINE                ) Appeal from the Circuit Court
INSURANCE COMPANY and TRAVELERS ) of Lake County.
INDEMNITY COMPANY,                      )
                                        )
       Plaintiffs-Appellees,            )
                                        )
v.                                      ) No. 15-MR-289
                                        )
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,           ) Honorable
                                        ) Thomas M. Schippers,
       Defendants-Appellants.           ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Zenoff concurred in the judgment and opinion.

                                         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
2017 IL App (2d) 160381

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

                                                -2-
2017 IL App (2d) 160381

complaint against numerous defendants, including the City of Waukegan and the police officers

named in this coverage suit.

¶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; 1 (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 the courts.

        1
            However, Rivera admitted in this count that the Seventh Circuit had held that malicious

prosecution was not actionable under section 1983.

                                                -3-
2017 IL App (2d) 160381

¶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

insurers 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).

                                               -4-
2017 IL App (2d) 160381

¶ 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 for you;

               * 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 imprisonment.

               * Malicious prosecution.

                                               ***

               * Violation of civil rights protected under any federal, state, or local law.

                                               ***

               Wrongful act means any act, error, or omission.”

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2017 IL App (2d) 160381

¶ 13   The provisions governing the LEL coverage in the 2008-09 umbrella policy are nearly

identical to those in the primary policy. The “What This Agreement Covers” section of the

umbrella policy provides as follows:

                “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;

                * is caused by a wrongful act that is committed while conducting law enforcement

       activities or operations; and

                * is covered by your Law Enforcement Liability Basis Insurance.”

¶ 14   The LEL policies define law enforcement activities or operations as any of the official

activities or operations of the police department, sheriff’s agency, or other public safety

organization that enforces the law and protects persons or property. The policies define a

wrongful act as any act, error, or omission.

¶ 15   On October 14, 2015, the trial court directed the parties to submit “cross-motions for

judgment on the pleadings and/or summary judgment on the issue of triggers.” On the City’s

motion, the trial court took judicial notice of this court’s decision in Rivera, 2011 IL App (2d)

091060, to establish that Rivera’s third trial occurred in 2009 and that his confession was again

introduced at that trial. 2 The remainder of the case, including discovery, was stayed pending the

court’s ruling on the “trigger” issue. The insurers filed a motion for summary judgment, and the

City filed a motion for judgment on the pleadings. Both parties filed memoranda in support of

their positions, along with responses to their opponent’s filings.

       2
           Rivera’s second and third trials were not mentioned in his third amended complaint.

                                                -6-
2017 IL App (2d) 160381

¶ 16   On April 22, 2016, the trial court issued a lengthy “Memorandum Order” finding that the

Rivera lawsuit did not trigger coverage under the insurers’ 2008-09 policies, which were in

effect during Rivera’s third trial. In doing so, the trial court followed this court’s decision in

Indian Harbor Insurance Co. v. City of Waukegan, 2015 IL App (2d) 140293, in which this court

rejected the argument that there were additional triggers of coverage beyond Rivera’s malicious

prosecution. Therefore, the trial court granted the insurers’ motion for summary judgment and

denied the City’s motion for judgment on the pleadings. The City appealed.

¶ 17                                      II. ANALYSIS

¶ 18   On appeal, the City argues that, because Rivera’s first and second convictions had been

reversed, “the slate had been wiped clean.” Therefore, the use of Rivera’s coerced confession

against him, as well as the Brady violation, failure to intervene, and conspiracy, caused injury to

Rivera during his third trial in May 2009. It also argues that the trial court’s analysis was flawed

because it improperly used a “malicious prosecution” analysis to assess Rivera’s “discrete”

claims of constitutional violations. The City acknowledges our holdings in St. Paul Fire &

Marine Insurance Co. v. City of Zion, 2014 IL App (2d) 131312, and Indian Harbor, where we

rejected multiple-trigger theories for coverage in malicious-prosecution cases. Specifically, in

Indian Harbor, we stated:

               “We find that all of the acts or omissions alleged to have occurred after the date

       Rivera was charged are really continuations of the same alleged harm. The purported

       ongoing acts of conspiracy that prolonged Rivera’s incarceration were not new harmful

       acts. Instead, they were the continuing effects of Rivera’s arrest and ultimately his

       convictions of rape and murder.” (Emphases added.) Indian Harbor, 2015 IL App (2d)

       140293, ¶ 40.

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2017 IL App (2d) 160381

¶ 19   The City argues that the claim for malicious prosecution is not the issue in this appeal.

Instead, it contends that we should adopt the analysis of the federal district court in Westport

Insurance Corp. v. City of Waukegan, 75 F. Supp. 3d 821 (N.D. Ill. 2014) (Westport I), and

Westport Insurance Corp. v. City of Waukegan, 157 F. Supp. 3d 769 (N.D. Ill. 2016)

(Westport II).

¶ 20   Westport I and II pertained to the issuance of LEL policies by Westport Insurance

Corporation (Westport) to the City. In Westport I, Judge Darrah ruled that, although Rivera did

not specifically allege claims applicable to his 1998 trial and conviction, “several of his claims

potentially apply to that trial.” Westport I, 75 F. Supp. 3d at 827. Judge Darrah stated:

                 “A violation of the *** Fifth Amendment occurs when a false confession is used

       in a criminal case. [Citation.] Thus, Rivera suffered an injury when his confession was

       used against him in the 1998 trial, which occurred within the coverage period.” Id.

       (citing Chavez v. Martinez, 538 U.S. 760, 767 (2003)).

¶ 21   Judge Darrah stated that, because Rivera’s underlying complaint alleged claims that

“plausibly” came within Westport’s coverage, Westport owed a duty to defend. Judge Darrah

ruled that the issue of indemnity was not ripe for consideration. In Westport II, Judge Alonso

denied Westport’s motion to reconsider Judge Darrah’s “trigger” ruling. By the time Judge

Alonso issued his ruling, the parties in the underlying suit reached a settlement agreement. In its

motion to reconsider Judge Darrah’s ruling, Westport relied on our opinion in Indian Harbor.

Judge Alonso stated, “It is at best uncertain whether the Illinois Supreme Court would conclude

that a Fifth Amendment self-incrimination claim should be treated like a malicious prosecution

claim, in the sense that it should trigger coverage only in the early stages of a criminal case.”

Westport II, 157 F. Supp. 3d at 777.

                                               -8-
2017 IL App (2d) 160381

¶ 22   The insurers argue that the trial court properly followed this court’s opinion in Indian

Harbor, which held that Rivera’s lawsuit “presented a single cause and therefore a single

occurrence.” Indian Harbor, 2015 IL App (2d) 140293, ¶ 44. The insurers recognize that we are

not necessarily required to follow our previous decisions, but they assert that, under

considerations of stare decisis, we should not depart from Indian Harbor’s holding absent good

cause or compelling reasons.

¶ 23   Our focus on appeal is whether the trial court erred when it granted summary judgment in

the insurers’ favor and denied the City’s motion for judgment on the pleadings, finding that

Rivera’s lawsuit did not trigger coverage under the 2008-09 policies.

¶ 24   Summary judgment should be granted only where the pleadings, depositions, admissions,

and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that

there is no genuine issue of material fact and that the movant is entitled to judgment as a matter

of law. 735 ILCS 5/2-1005(c) (West 2014); Adames v. Sheahan, 233 Ill. 2d 276, 295 (2009). A

trial court’s grant of a motion for summary judgment is subject to de novo review on appeal.

Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). The construction

of an insurance policy is a question of law, which is also subject to de novo review. Id.

“Interpretation of the language in an insurance policy is especially appropriate for summary

judgment because, in such cases, the court is presented only with a question of law.” United

States Fidelity & Guaranty Co. v. Alliance Syndicate, Inc., 286 Ill. App. 3d 417, 418 (1997). We

may sustain the trial court’s order granting summary judgment on any ground supported by the

record, regardless of whether the trial court relied on that ground and regardless of whether the

trial court’s reasoning was correct. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169,

192 (2007).

                                               -9-
2017 IL App (2d) 160381

¶ 25   Judgment on the pleadings is proper only when the pleadings disclose no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Gillen v. State Farm

Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). When ruling on a motion for

judgment on the pleadings, the court considers only those facts apparent from the face of the

pleadings, matters subject to judicial notice, and judicial admissions in the record. Id. We

review de novo the court’s order granting or denying a motion for judgment on the pleadings.

Indian Harbor, 2015 IL App (2d) 140293, ¶ 12.

¶ 26   Our primary objective when construing an insurance policy is to ascertain and give effect

to the intention of the parties, as expressed in the policy language. Gillen, 215 Ill. 2d at 393.

The construction we give to an insurance policy should be a natural and reasonable one. Id.

(citing De los Reyes v. Travelers Insurance Co., 135 Ill. 2d 353, 358 (1990)). Undefined terms

will be given their plain, ordinary, and popular meanings. Outboard Marine Corp. v. Liberty

Mutual Insurance Co., 154 Ill. 2d 90, 115 (1992). If language in a policy is susceptible to more

than one reasonable meaning, it is considered ambiguous and will be construed against the

insurer. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 293 (2001). We

will not strain to find an ambiguity in a policy where none exists. Id.

¶ 27   Courts construe an insurance policy as a whole, with due regard to the risks undertaken,

the subject matter that is insured, and the purpose of the entire policy. Pekin Insurance Co. v.

Wilson, 237 Ill. 2d 446, 456 (2010) (citing American States Insurance Co. v. Koloms, 177 Ill. 2d

473, 479 (1997)). Our supreme court “has long established that the burden is on the insured to

prove that its claim falls within the coverage of an insurance policy.” Addison Insurance Co. v.

Fay, 232 Ill. 2d 446, 453 (2009). In order to determine whether an underlying lawsuit triggers

insurance coverage, “the court must look to the allegations in the underlying complaint and

                                               - 10 -
2017 IL App (2d) 160381

compare these allegations to the relevant provisions of the insurance policy.” Outboard Marine,

154 Ill. 2d at 107-08.

¶ 28   The City acknowledges our holding in Indian Harbor. In Indian Harbor, we relied upon

our earlier decision in City of Zion, where we construed LEL policy language that was identical

to the policy language identified here. The City argues that “blanket application of the analysis”

in Indian Harbor should not be imposed here, because the policy period at issue there was after

Rivera’s exoneration, whereas here the policies at issue were in effect during Rivera’s third trial.

The City argues that, because Indian Harbor did not specifically identify the trigger for Rivera’s

fifth-amendment claim, we should follow the federal district court’s decisions in Westport I and

II.

¶ 29   Because the City asks that we follow the reasoning in Westport I and II instead of our

holding in Indian Harbor, we must discuss the doctrine of stare decisis and our rules of

precedent. The doctrine of stare decisis is the means by which courts ensure that the law will not

merely change erratically but will develop in a principled, intelligent fashion. Chicago Bar

Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994). “ ‘It is the absolute duty

of the circuit court to follow the decisions of the appellate court.’ ” In re R.C., 195 Ill. 2d 291,

297 (2001) (quoting In re A.A., 181 Ill. 2d 32, 36 (1988)). Decisions of the United States district

and circuit courts are not binding upon Illinois courts. City of Chicago v. Groffman, 68 Ill. 2d

112, 118 (1977). Also, the decision of one district, division, or panel of the Illinois Appellate

Court is not binding on other districts, divisions, or panels. O’Casek v. Children’s Home & Aid

Society of Illinois, 229 Ill. 2d 421, 440 (2008).

¶ 30   Though we are not bound by the earlier decisions of this court, absent compelling reasons

for doing so, we are reluctant to abandon or modify an earlier decision soon after its publication.

                                                - 11 -
2017 IL App (2d) 160381

This is particularly the case where there is a substantial body of authority established by courts of

other jurisdictions that we look to for guidance. “Where a court of review reexamines an issue

already ruled upon and arrives at an inapposite decision, the straight path of stare decisis is

affected, as well as reliance interests of litigants, the bench, and the bar.” Id. “[W]hen a rule of

law has been settled, it should be followed unless a party can show that serious detriment

prejudicial to the public interest is likely to arise. The rule of stare decisis is founded upon

sound principles in the administration of justice, and a court should not depart from rules long

recognized as the law merely because the court believes that it might decide the issue differently

if the question were novel.” Appelhans v. McFall, 325 Ill. App. 3d 232, 238 (2001) (citing Maki

v. Frelk, 40 Ill. 2d 193, 196 (1968)). We should approach reconsideration of our decisions with

the utmost caution.     Such caution “ ‘promotes the evenhanded, predictable and consistent

development of legal principles, fosters reliance on judicial decisions, and contributes to the

actual or perceived integrity of the judicial process.’ ” State Oil Co. v. Kahn, 522 U.S. 3, 20

(1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).

¶ 31    The City argues that we should look to National Casualty Co. v. McFatridge, 604 F.3d

335 (7th Cir. 2010), the first appellate decision to address coverage for wrongful convictions in

Illinois.   The City notes that the McFatridge court did not rule out the possibility of

“occurrences” (triggers) between charging and exoneration. The City forgets that this court

rejected McFatridge’s analysis in City of Zion and Indian Harbor. In McFatridge, the Seventh

Circuit relied on an Illinois Appellate Court case that had been reversed—Security Mutual

Casualty Co. v. Harbor Insurance Co., 65 Ill. App. 3d 198 (1978), rev’d, 77 Ill. 2d 446 (1979).

In City of Zion, we noted that the only Illinois case to address the issue of which occurrence

triggers coverage of a malicious-prosecution claim was Security Mutual. In Security Mutual, the

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2017 IL App (2d) 160381

appellate court held that coverage in a malicious-prosecution case was not triggered until the

prosecution was favorably terminated. Security Mutual, 65 Ill. App. 3d at 206. The Illinois

Supreme Court reversed because the appellate court exceeded the scope of its review by

sua sponte addressing the trigger issue. Security Mutual, 77 Ill. 2d at 451. The supreme court

determined that the coverage dispute was subject to arbitration regardless of whether the

insured’s claim was valid. Id. In City of Zion, we rejected the appellate court’s reasoning in

Security Mutual, not only because our supreme court reversed the decision but also because the

appellate court “looked solely to the elements of a cause of action” and provided “no guidance

for interpreting [the policy] language.” City of Zion, 2014 IL App (2d) 131312, ¶ 18. In City of

Zion, we followed the reasoning of the majority of jurisdictions, which had held that “the

commencement of a malicious prosecution is the event that triggers insurance coverage.” Id.

¶ 19.   We noted that only six cases had adopted the minority position that the favorable

termination of a malicious prosecution triggers insurance coverage. Three of the cases were

from the Seventh Circuit: McFatridge; America Safety Casualty Insurance Co. v. City of

Waukegan, 678 F.3d 475 (7th Cir. 2012); and Northfield Insurance Co. v. City of Waukegan, 701

F.3d 1124 (7th Cir. 2012). We said that none of those cases were “particularly persuasive given

their reliance on Security Mutual.” City of Zion, 2014 IL App (2d) 131312, ¶ 31.

¶ 32    We repeated our criticism of Security Mutual in Indian Harbor. Indian Harbor, 2015 IL

App (2d) 140293, ¶ 16. There, we cited City of Zion and continued to follow the majority view.

In construing the policy language, which was similar to the language at issue in City of Zion, we

held that coverage for malicious prosecution was not triggered during the policy period. Id. ¶ 36.

The LEL policies in Indian Harbor were issued for the years November 1, 2011, to November 1,

2013, covering the period when Rivera was exonerated. We also examined whether any of

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2017 IL App (2d) 160381

Rivera’s other allegations triggered coverage, including the Brady claim. In Indian Harbor,

Rivera argued that the Brady violations were independent triggering events because the duty to

disclose exculpatory evidence existed “before, during, and after trial.” Id. ¶ 39. We rejected this

argument, citing our supreme court’s decision in Nicor, Inc. v. Associated Electronics & Gas

Insurance Services, Ltd., 223 Ill. 2d 407 (2006). Specifically, we said:

               “Applying the cause theory as set forth in Nicor to the present case clearly

       establishes that this case presented a single cause and therefore a single occurrence. The

       alleged Brady violations that contributed to Rivera’s arrest and convictions might have

       had an ongoing effect over a period of time, but Rivera’s injury resulted from the ‘same

       conditions and was inflicted as part of an unbroken and uninterrupted continuum.’ ”

       Indian Harbor, 2015 IL App (2d) 140293, ¶ 44 (quoting Nicor, 223 Ill. 2d at 419).

¶ 33   This statement in Indian Harbor was not dicta. Under our rules of precedent, the trial

court was required to follow Indian Harbor and reject the City’s argument that the Brady

violation and the use of Rivera’s confession at his third trial are independent triggering events.

¶ 34   The City’s challenge here is to convince us to depart from our opinion in Indian Harbor.

Since Indian Harbor, the Fourth District has adopted our analysis in Indian Harbor and City of

Zion. See County of McLean v. States Self-Insurance Risk Retention Group, 2015 IL App (4th)

140628. Although the policy language at issue in County of McLean was slightly different from

the policies at issue in Indian Harbor and City of Zion, the Fourth District found that our

decisions were well reasoned and applicable to the issues there. Id. ¶ 39. In County of McLean,

the plaintiff in the underlying suit, Alan Beaman, was arrested for a 1993 murder. A jury

convicted Beaman in 1995. In May 2008, our supreme court reversed Beaman’s conviction due

to a Brady violation. People v. Beaman, 229 Ill. 2d 56 (2008). The State dismissed all charges

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2017 IL App (2d) 160381

in 2009. Beaman filed his federal wrongful conviction suit in 2012. In 2013, the county and

other defendants in Beaman’s wrongful conviction case filed a complaint seeking a declaratory

judgment that the insurer was obligated to pay defense costs because the policy was “in place

when Beaman was exonerated.” County of McLean, 2015 IL App (4th) 140628, ¶ 3. The trial

court granted summary judgment for the county and the other insureds, ruling that Beaman’s

“malicious-prosecution claim ripened during the policy period.” Id. The policy at issue was in

effect from March 2008 to March 2009, the period during which Beaman was exonerated;

favorable determination is the final element of a malicious-prosecution claim. Each count of

Beaman’s complaint incorporated by reference his Brady allegation. Id. ¶ 11. The policy

language in County of McLean provided that there would be coverage for “ ‘[a]ny act which

gives rise to any liability under any federal crime rights statute, any state employment related

law, or the Fair Labor Standards Act, if such act is committed during the policy period.’ ” Id.

¶ 17. 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.’ ” (Emphases in original.) Id. ¶ 4.

¶ 35    In County of McLean, the trial court found that Beaman’s personal injury claims were not

actionable until the State dismissed the criminal charges and that, because the dismissal occurred

during the policy period, the insurer was obligated to pay the costs of defense. Id. ¶ 23. The

Fourth District rejected this rationale because it was contrary to the plain language of the policy.

Id. ¶ 32. The court concluded that the “event that triggers coverage is the actual injury suffered

by the prosecuted party, not the accrual of the tort of malicious prosecution.” (Emphases in

original.) Id. ¶ 33.

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¶ 36   The City argues that Indian Harbor, City of Zion, and County of McLean are

distinguishable because they addressed policies in effect at the time of exoneration, not during a

trial. The City argues that, when a conviction is reversed, “the slate has been wiped clean and

the conviction is wholly nullified, and a defendant is not placed in double jeopardy at a retrial”

(People v. Crutchfield, 353 Ill. App. 3d 1014, 1025 (2004) (citing North Carolina v. Pearce, 395

U.S. 711, 720-21 (1969), abrogated on other grounds, Alabama v. Smith, 490 U.S. 794 (1989))).

Because Rivera was convicted anew in 2009, the City argues, his third conviction cannot be

deemed a continuation of his previous conviction. We reject this argument. Rivera’s second and

third trials were continuations of his wrongful prosecution, which increased his damages but

were not new injuries. Under Illinois law, a prosecution is defined as “all legal proceedings by

which a person’s liability for an offense is determined, commencing with the return of the

indictment or the issuance of the information, and including the final disposition of the case upon

appeal.” 720 ILCS 5/2-16 (West 2016).

¶ 37   The City’s argument that each trial at which evidence was withheld constituted a separate

triggering event mirrors an argument that was rejected by the Missouri Court of Appeals in City

of Lee’s Summit v. Missouri Public Entity Risk Management, 390 S.W.3d 214 (Mo. Ct. App.

2012). In City of Lee’s Summit, like Rivera, the plaintiff in the underlying lawsuit was tried three

times. The court of appeals rejected the multiple-trigger approach for continuing or repeated

injuries that was used in asbestosis and other latent or gradual injury cases, finding it not well

suited for deprivation-of-liberty cases where injury is evident from the outset. Id. at 221-22.

The court commented that courts in other jurisdictions “that have addressed when insurance is

triggered for civil rights claims have found that such claims seeking damages for constitutional

injuries resulting from arrest, conviction, and incarceration are analogous to claims for malicious

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2017 IL App (2d) 160381

prosecution.” Id. at 220. “The continuing conduct required in conspiring to deprive someone of

the right to a fair trial poses a risk of injury similar to that posed by the continuing conduct of

malicious prosecution ***.” American States Preferred Insurance Co. v. McKinley, No. 07-

0584CV-W-NKL, 2009 WL 1139122, at *8 (W.D. Mo. Apr. 28, 2009). We agree with the

conclusion in City of Lee’s Summit. Here, as in City of Lee’s Summit, Rivera’s “section 1983

claims for deprivation of his federal constitutional right to a fair trial and for conspiracy to

deprive him of his right to a fair trial based on the failure to disclose or preserve exculpatory

evidence, were in the nature of malicious prosecution for purposes of insurance coverage.” City

of Lee’s Summit, 390 S.W.3d at 220.

¶ 38                                     A. The Brady Claim

¶ 39    The City argues that the procedural due process Brady analysis that we discussed in

Indian Harbor should not be applied here. Specifically, it cites Steidl v. Fermon, 494 F.3d 623

(7th Cir. 2007), for the proposition that the “deprivation of exculpatory use of [sic] evidence for

trial is a substantive due process violation that is distinguishable from the procedural due process

claim of malicious prosecution.” There are several problems with the City’s argument. First,

Steidl was not an insurance coverage case. The issue in Steidl was whether the officers were

entitled to qualified immunity for their conduct. The Seventh Circuit concluded that “all of the

police involved in this case[] had ample notice that the knowing suppression of exculpatory

material that was in the files at the time of the trial violated the defendant’s constitutional rights.”

Id. at 632. The court held that “[b]y the time these officials acted, Kyles v. Whitley[3] was also on

the books, eliminating any doubt about the joint responsibility of the police and prosecutors to

assure the fair administration of the criminal justice system.” (Emphasis added.) Id. at 632-33.

        3
            514 U.S. 419 (1995).

                                                 - 17 -
2017 IL App (2d) 160381

The court held that the district court correctly denied the officers’ motion for dismissal on

qualified immunity. To state the obvious, the court’s discussion concerned the officers’ actions

at the time they withheld exculpatory evidence. The City’s argument ignores the language of the

policies. St. Paul’s 2008-09 policies provided that it would pay any amount that any protected

person was legally required to pay as damages for a covered injury or damage that (1) resulted

from law enforcement activities, (2) happened while the agreement was in effect, and (3) was

caused by a wrongful act that was committed while conducting law enforcement activities or

operations. According to Rivera’s complaint, the police recovered a knife in 1994 near the back

door of the building where Staker was murdered. The police believed that the knife was the

murder weapon. Rivera claimed that the police also wrote a detailed report yet concealed this

evidence and later destroyed the weapon, “insuring that Plaintiff would never be able to use it in

his criminal defense.” Rivera claimed that the police “never” provided the information to his

attorneys or the prosecutors. Clearly, under the language of the policies, those “law enforcement

activities” took place in 1994 or shortly thereafter, well before the effective dates of the policies.

¶ 40   The City’s argument suffers from the same infirmity as McFatridge. It focuses on the

elements of, or accrual of, a cause of action for a section 1983 Brady violation, as opposed to the

policy language. See City of Zion, 2014 IL App (2d) 131312, ¶ 18. To prevail on a section 1983

Brady claim against a police officer, a plaintiff must prove that (1) the evidence was favorable to

him, (2) the officer knowingly or intentionally concealed the evidence, and (3) the concealed

evidence resulted in prejudice. Cairel v. Alderden, 821 F.3d 823, 832 (7th Cir. 2016). “A police

officer’s failure to disclose exculpatory evidence to a prosecutor may foreseeably result in a

violation of the accused’s due process rights under Brady.” Id. (citing Newsome v. McCabe, 256

F.3d 747, 752 (7th Cir. 2001), abrogated on other grounds, Manuel v. City of Joliet, ___ U.S.

                                                - 18 -
2017 IL App (2d) 160381

___, 137 S. Ct. 911 (2017)). Of course, there is no Brady violation until the exculpatory

evidence is withheld from a defendant at a trial that results in a conviction. However, whether

civil liability attaches focuses on the officers’ actions and knowledge at the time they withheld or

destroyed the favorable evidence. 4 While the elements of Rivera’s Brady claim did not ripen

until the exculpatory material was withheld and accrue until he was acquitted, the law

enforcement activity that caused his injury occurred well before the effective dates of the

policies.

¶ 41    In its reply brief, the City argues that “Rivera’s malicious prosecution claims, as well as

his claims of other discrete torts, including but not limited to Fifth Amendment violations and

Brady violations, should be deemed separate covered occurrences under St. Paul/Travelers’

policies.” As support for this claim, it cites Travelers Indemnity Co. v. Forrest County, No.

2:14-CV-22-KS-MTP, 2016 WL 3512233 (S.D. Miss. June 22, 2016). Travelers Indemnity Co.

is a case from a federal district court in Mississippi construing Mississippi law and has no

precedential value.

¶ 42    In Travelers Indemnity Co., the district court stated, “[t]he policy here plainly provides

coverage for injuries sustained during the policy period, and the Bivens Plaintiffs alleged that

Bivens and Dixon were in prison for a crime they did not commit during the policy period.

Therefore, the Bivens Plaintiffs alleged an injury during the policy period.” Travelers Indemnity

        4
            Civil liability for a Brady violation may attach only to a police officer’s conduct,

because prosecutors have an absolute immunity from such claims. See Imbler v. Pachtman, 424

U.S. 409, 427-31 (1976); Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009) (absolute

immunity applies when a prosecutor prepares to initiate a judicial proceeding or appears in court

to present evidence).

                                               - 19 -
2017 IL App (2d) 160381

Co. v. Forest County, 206 F. Supp. 3d 1216, 1224-25 (S.D. Miss. June 29, 2016). We agree with

the insurers that this holding is at odds with Illinois law and is therefore not instructive or

relevant. Mere incarceration is not a triggering event under Illinois law. City of Zion, 2014 IL

App (2d) 131312, ¶¶ 25-26. We also note that the district court held that the Forrest County

insureds’ alleged failure to come forward with exonerating evidence during parole proceedings

during the policy period was an “omission and/or breach of duty” under a Mississippi statute.

Travelers Indemnity Co., 2016 WL 3512233, at *3. The underlying plaintiffs alleged that the

insureds’ failure to come forward resulted in the denial of their requests for early release.

Travelers Indemnity Co., 206 F. Supp. 3d at 1223-24. Under the Mississippi statute, “[i]t shall

be the duty of any judge, district attorney, county attorney, police officer, or other public official

of the state, having information with reference to any person eligible for parole, to send such

information as may be in his possession or under his control to the board, in writing, upon

request of any member or employee thereof.” Miss. Code Ann. § 47-7-19 (2006). We do not

find Travelers Indemnity Co. helpful to our analysis.

¶ 43                              B. The Fifth Amendment Claim

¶ 44   Next, the City contends that the use of Rivera’s confession at his 2009 trial triggered

coverage for his fifth-amendment claim. The fifth amendment commands in pertinent part that

no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const.,

amend. V. However, courts “measure confessions against the requirements of due process and to

exclude involuntary confessions.” People v. Richardson, 234 Ill. 2d 233, 252 (2009). The court

examines the “totality of the circumstances” at the time of the confession to determine “whether

the defendant made the statement freely, voluntarily, and without compulsion or inducement of

any sort, or whether the defendant’s will was overcome at the time he or she confessed.”

                                                - 20 -
2017 IL App (2d) 160381

(Emphasis added.) People v. Gilliam, 172 Ill. 2d 484, 500 (1996). The City relies on the district

court decisions in Westport I and II, where the court ruled that, for purposes of the duty to

defend, the use of Rivera’s confession at his second trial in 1998 triggered coverage.          In

Westport I the court said, “[a] violation of the Self-Incrimination Clause of the Fifth Amendment

occurs when a false confession is used in a criminal case. See Chavez v. Martinez, 538 U.S. 760,

767 *** (2003). Thus, Rivera suffered an injury when his confession was used against him in

the 1998 trial, which occurred within the coverage period.” Westport I, 75 F. Supp. 3d at 827.

In Westport II, the court denied Westport’s motion to reconsider in light of Indian Harbor.

Instead of following our holding that Rivera’s complaint “presented a single cause and therefore

a single occurrence” (Indian Harbor, 2015 IL App (2d) 140293, ¶ 44), the court denied the

motion to reconsider, stating that “[i]t is at best uncertain whether the Illinois Supreme Court

would conclude that a Fifth Amendment self-incrimination claim should be treated like a

malicious prosecution claim, in the sense that it should trigger coverage only in the early stages

of a criminal case” (Westport II, 157 F. Supp. 3d at 777). Respectfully, by the time the court

ruled on Westport’s motion to reconsider, the law in Illinois was clear. City of Zion, Indian

Harbor, and County of McLean had all rejected the multiple-trigger theory in wrongful

conviction cases. As the Seventh Circuit observed in Northfield Insurance Co., 701 F.3d at

1132, “[a]s a federal court interpreting Illinois law, we are not entitled to singlehandedly modify

the Illinois rule without some new direction from the state.” Unless and until our supreme court

states otherwise, the holdings in City of Zion, Indian Harbor, and County of McLean express

Illinois’s law on the coverage trigger issue in this case.

¶ 45   The problem with Westport I and II and the City’s argument is that they focus on the

elements or accrual date of a fifth-amendment claim instead of comparing the allegations in

                                                - 21 -
2017 IL App (2d) 160381

Rivera’s complaint to the policy language. As noted, our construction of an insurance policy

should be natural and reasonable.      Gillen, 215 Ill. 2d at 393.    Because a police officer’s

testimony itself is not actionable, it would be completely unreasonable to hold that insurance

coverage for a fifth-amendment violation is triggered when a police officer testifies in a criminal

case that a defendant had confessed.

¶ 46   When a police officer testifies in a criminal case that a defendant confessed to him or her,

there can be no liability for that conduct, because the officer is shielded by absolute witness

immunity. Briscoe v. LaHue, 460 U.S. 325, 335-36 (1983). Moreover, when a police officer

testifies, he is treated like any other witness; he is not performing a traditional law enforcement

activity. Id. at 336. Once evidence is turned over to a prosecutor, it is up to the prosecutor to

decide what evidence will be presented, a decision over which the insured police officers have no

control. See Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 45 (1997). Of course,

witness immunity and prosecutorial immunity cannot shield a police officer for misconduct in

procuring an involuntary confession. See Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir.

1988). Once police have engaged in wrongful acts or omissions that later ripen into section 1983

constitutional torts, they cannot escape liability by pointing to decisions of prosecutors or other

officials “whom they have defrauded.” Id. The “causal inquiry is unchanged.” Id.

¶ 47   According to Rivera’s complaint, the misconduct that led to his conviction occurred in

1992, not in 2009 or in 2012 when he was finally exonerated. It would be absurd to hold that the

parties intended that the LEL policies were meant to provide coverage for an action in 2009

(testimony), which is shielded by absolute immunity, and then to be used to bootstrap coverage

for “law enforcement activity” that took place 17 years earlier. As the United States Supreme

Court stated in Chavez, police torture or other abuse that results in a confession is actionable

                                              - 22 -
2017 IL App (2d) 160381

under the fourteenth amendment’s due process clause whether or not the confession is used at

trial. Chavez, 538 U.S. at 773.

¶ 48    This case once again informs us that the time of occurrence in insurance law is different

from the time of accrual in tort law. In insurance law, the time of occurrence is used to

determine when the operative terms of the policy provide coverage. In tort law, the time of

accrual is used to determine when the statute of limitations begins to run, a separate

consideration that highlights why the overwhelming majority of jurisdictions have rejected

variations of the multiple-trigger theory in wrongful conviction coverage cases. We reaffirm our

holding in Indian Harbor that Rivera’s lawsuit presented a “single cause and therefore a single

occurrence” (Indian Harbor, 2015 IL App (2d) 140293, ¶ 44), which occurred long before the

effective dates of the policies in this case.

¶ 49    The City also argues that Rivera’s failure-to-intervene and conspiracy claims trigger

coverage under the St. Paul 2008-09 policies.            These claims are based on Rivera’s fifth-

amendment and Brady claims. We therefore reject the City’s argument.

¶ 50    Finally, the City argues that the trial court’s holding, which we affirm, renders the

promised coverage illusory.       “An illusory promise appears to be a promise, but on closer

examination reveals that the promisor has not promised to do anything.”             W.E. Erickson

Construction Inc. v. Chicago Title Insurance Co., 266 Ill. App. 3d 905, 909 (1994). We rejected

this same argument in Indian Harbor, 2015 IL App (2d) 140293, ¶ 46. As we have discussed,

the wrongful acts by the insureds that caused Rivera’s injury under both the fifth amendment and

Brady did not take place during the 2008-09 policy period, and therefore there is no coverage. In

other words, had these wrongful acts occurred during the 2008-09 policy period, the insurers’

policies would be triggered, subject to any applicable exclusion or exception.

                                                - 23 -
2017 IL App (2d) 160381

¶ 51                                   III. CONCLUSION

¶ 52   For the foregoing reasons, we conclude that Rivera’s Brady and fifth-amendment claims

did not trigger coverage under the insurance policies that the insurers issued to the City. The law

enforcement activity on which those claims were based occurred before the policies took effect.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

¶ 53   Affirmed.

                                              - 24 -


Suarez v Four Thirty Realty LLC (2019 NY Slip Op 01307)

Suarez v Four Thirty Realty LLC

2019 NY Slip Op 01307

Decided on February 21, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2019

Renwick, J.P., Tom, Singh, Moulton, JJ.

8455 160035/15

[*1]Mario Suarez, et al., Plaintiffs-Respondents-Appellants,
vFour Thirty Realty LLC, et al., Defendants-Appellants-Respondents.

Horing, Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), for appellants-respondents.
Sokolski & Zekaria, P.C., New York (Robert E. Sokolski of counsel), for respondents-appellants.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 23, 2018, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the complaint as against Four Thirty Realty LLC, and granted plaintiffs' cross motion for summary judgment dismissing the fourth and fifth affirmative defenses and the sixth except as it applies to the third cause of action, and denied the cross motion for summary judgment declaring that the apartment is rent stabilized and that plaintiff Suarez is a rent stabilized tenant thereof, unanimously modified, on the law, to grant plaintiffs' motion to the extent of declaring that apartment 9H in the building located at 430 East 86th Street in Manhattan is a rent-stabilized unit and that plaintiff Suarez is entitled to a rent-stabilized lease, and otherwise affirmed, without costs.
Defendants argue that plaintiffs' claims, that the subject apartment was improperly removed from rent stabilization, and for a rent-overcharge and attorneys' fees, are barred by the doctrine of collateral estoppel (see Gersten v 56 7th Ave. LLC, 88 AD3d 189, 201 [1st Dept 2011], appeal withdrawn 18 NY3d 954 [2012]). Defendants are correct that plaintiffs had a full and fair opportunity to participate in the proceedings held 13 years earlier before New York State Division of Housing and Community Renewal (DHCR) that resulted in the deregulation of plaintiffs' apartment pursuant to high income deregulation law. However, plaintiffs' present claims raise an issue that was not raised or litigated in the prior DHCR deregulation proceedings, i.e., whether their apartment was subject to re-regulation when they entered into a new market rate lease at a time when the building was still receiving J-51 tax benefits (see Leight v W7879 LLC, 128 AD3d 417 [1st Dept 2015], affd 27 NY3d 929 [2016]; Extell Belnord LLC v Uppman, 113 AD3d 1, 11 [1st Dept 2013]).
Accordingly, Supreme Court should have granted plaintiffs' motion for summary judgment declaring that apartment 9H in the building located at 430 East 86th Street in Manhattan is a rent-stabilized unit and that plaintiff Suarez is entitled to a rent-stabilized lease (see Roberts v Tishman Speyer Props, L.P. 13 NY3d 270 [2009] [apartments restored to rent stabilization because the owner deregulated the apartments pursuant to the luxury decontrol laws while it was receiving tax benefits under the City's J-51 program; Gersten v 56 7th Ave. LLC., 88 [*2]AD3d at 198 [applying Roberts retroactively]).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 21, 2019
CLERK