Eighth Circuit Addresses Personal Injury Offense of Malicious Prosecution

In its recent decision in Genesis Ins. Co. v. City of Council Bluffs, et al., 2012 U.S. App. LEXIS 9577 (8^thCir. May 11, 2012), the United States Court of Appeals for the Eighth Circuit, in a matter of first impression under Iowa law, considered when the tort of malicious prosecution occurs for the purpose of personal injury coverage under a general liability policy.

In 1977, underlying plaintiffs were arrested and convicted for the murder of a retired police officer.  Their convictions were vacated in 2003 based on evidence that the prosecution had withheld of exculpatory evidence.   Plaintiffs were released from prison and later brought suit against the City of Council Bluffs, the City’s Police Department, and certain police officers.  In addition to alleging civil rights violations, their suits alleged the tort of malicious prosecution.  The City tendered its defense to Genesis Insurance Company, its general liability carrier for the period January 1, 2002 to January 1, 2003 and for the renewal period January 1, 2003 through January 1, 2004.  Genesis disclaimed coverage on the basis that the alleged personal injury offense of malicious prosecution happened when plaintiffs were originally prosecuted, not when their convictions were later vacated.

The Eighth Circuit acknowledged that there was no controlling Iowa law on the issue of when the tort of malicious prosecution occurs for insurance coverage purposes.  Looking to case law from across the country, the court observed that “although there is no agreement on when the tort of malicious prosecution occurs for insurance coverage purposes, the clear majority of courts have held the tort occurs when the underlying criminal charges are filed.”  The court further noted that in Royal Indemnity Co. v. Werner, 979 F.2d 1299 (8^th Cir. 1992), the Eighth Circuit, in addressing the issue under Missouri law, held that a malicious prosecution claim accrues with the filing of suit.  The court found no meaningful reason why its decision in Royal Indemnity is inconsistent with Iowa law, explaining that under Iowa law, the occurrence happens when the claimant sustains damages, not when the act or omission causing the damage takes place.   Because a claimant is damaged upon the filing of a criminal complaint, observed the court, it necessarily followed that the occurrence happened at that time.

In reaching its decision, the court considered and rejected the insured’s argument that the Genesis policies were triggered based on allegations of “continuing misconduct and continuing personal injury” through the time underlying plaintiffs were released from prison.  The court refuted the contention that “the tort of malicious prosecution constitutes a continuing injury,” and concluded instead that a claim for malicious prosecution does not trigger multiple policies, but instead triggers only the policy in effect at the time the charges are filed.  

Supreme Court Dismisses Malicious Prosecution Action Against Crown Attorney

In our practices we often represent municipalities and the Crown in civil litigation. Litigation against police forces and prosecutors seems to be increasing, including actions alleging malicious prosecution. The Supreme Court recently released a case on malicious prosecution which is of interest to those defending Crown Attorneys in such actions. The results are good news for Crown Attorneys. The Supreme Court seems to be attempting to strike a balance between allowing Crown Attorneys to perform their jobs on one hand, and preventing abuse of the system on the other.

In Miazga v. Kvello Estate, 2009 SCC 51, the plaintiffs were accused of sexually assaulting children in their care. The allegations were sensational, including ritualistic abuse and as many as twelve different adults involved. The charges were resolved in the plaintiffs’ favour when Crown Attorney Miazga entered a stay of proceedings prior to trial. The children subsequently recanted their allegations.

The Supreme Court reaffirmed the four requirements for a malicious prosecution action. The plaintiff must show the proceeding was:

1) initiated by the defendant;
2) terminated in favour of the plaintiff;
3) undertaken without reasonable and probable cause; and
4) motivated by malice or a primary purpose other than carrying the law into effect.

Justice Charron affirmed that decisions made by Crown Attorneys pursuant to their prosecutorial discretion are generally immune from judicial review. It is only when a Crown steps out of his or her role as a “minister of justice” that immunity is lost.

Although prosecutorial immunity is not absolute, there is a high standard in order to succeed in a malicious prosecution action against a Crown Attorney. In order to meet the malice requirement, more than recklessness, poor judgment or even gross negligence is required; it must be an abuse of prosecutorial power or a fraud on the process of criminal justice.

The Court dismissed the action as the plaintiffs had not proven the required elements.