Kenneth Lowe Jun. 23, 2014, 11:28am

An insurance company is asking Chicago's federal court to determine it doesn't have to defend or indemnify a southwest suburban village against claims its police officers shot a man.

Delaware-based Essex Insurance Co. filed a complaint for declaratory judgment on June 18 against the Village of Oak Lawn and two of its police officers, Todd Tenison and Scott Kirk, asserting it shouldn't have to defend them in a suit three Oak Lawn residents filed against them in 2010.

The plaintiffs in the underlying suit --Charles Petrishe, Nikki Caputo-Petrishe and Dianne McGann --are also named as defendants in the insurance company's complaint. They sued the village and the two police officers in December 2010.

On Dec. 8, 2010, Petrishe suffered gunshot wounds at the hands of an Oak Lawn police officer. On that night, according to the complaint, Petrishe was at his Oak Lawn home “feeling depressed and drinking some beer” when he began arguing with his wife, Caputo-Petrishe.

After the argument began, Caputo-Petrishe called McGann, her mother, and said Petrishe was “acting suicidal.” McGann showed up at the house to try to calm Petrishe, who took a kitchen knife and began cutting the back of his wrist, the suit states. McGann called his Alcoholics Anonymous sponsor, who informed police.

Tenison and Kirk, the defendant police officers, arrived at the house, where the underlying suit alleges they found Petrishe with his arms at his sides. The suit alleges Tenison shot Petrishe with a taser, knocking him to the ground, and Kirk shot Petrishe several times when he tried to get up with the knife still in his right hand.

The bullets “damaged every vital organ except for the heart and brain, tore apart his duodenim sac, and tore open his pericardium sac,” the underlying suit alleges, adding that as a result, Petrishe's large intestine was removed and he was left incontinent.

Following the shooting, police informed Petrishe's family he was under arrest for two counts of attempted murder. He was eventually charged with misdemeanor aggravated assault, but a Cook County grand jury later found him not guilty of all charges.

Among the 18 claims made in their underlying suit, the plaintiffs allege Tenison and Kirk violated Petrishe's Fourth Amendment rights, charged Petrishe with the crimes in order to cover up their use of excessive force and inflicted emotional distresses upon McGann and Caputo Petrishe.

The plaintiffs further claim that Oak Lawn is liable for the actions of Tenison and Kirk under state tort laws, which hold public entities responsible for the conduct of their employees.

Oak Lawn had an insurance policy through Essex, active at the time of the original suit, that covered indemnity. Essex, however, claims that Oak Lawn did not immediately inform it of the lawsuit in violation of the policy agreements.

“Despite knowing about the occurrence and the lawsuit against it as early as December 15, 2010, Oak Lawn did not notify Essex of the occurrence or the underlying action until May 21, 2013,” Essex alleges in its complaint.

As such, the insurance company asserts that “Oak Lawn, Kirk and Tenison are not entitled to coverage under the Essex policy, and Essex is under no obligation to defend or indemnify Oak Lawn, Kirk or Tenison with respect to the underlying suit.”

Essex also argues that Kirk and Tenison's alleged violations of Petrishe's constitutional rights and their alleged abuse of process are not covered by the policy.

Essex is represented by William K. McVisk of Johnson & Bell Ltd.

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