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Insurance company claims it doesn't have duty to defend police officers

By Rhys Saunders | Sep 11, 2013

An insurance company has asked a federal court to decide whether it has to pay for the defense of former police officers being sued by five men wrongfully convicted of the  rape and murder of a 14-year-old girl.

Scottsdale Insurance Co. on Sept. 6 filed a complaint for declaratory judgment in Chicago’s federal court to determine if it has a duty to pay for the defense of the Village of Dixmoor and three of its former police officers -- Joseph Falica, Jr., Michael R. Morgan and Nicholas Graves -- in a lawsuit alleging they framed the five men.

The insurance company asked the court to “enter an award of costs in Scottsdale’s favor and any such further relief as may be just and equitable.”

Known as the “Dixmoor Five," Jonathan Barr, James Harden, Shainne Sharp, Robert Taylor and Robert Veal served prison time for the 1991 rape and murder of 14-year-old Cateresa Matthews, according to published media reports.

Each of the five men has filed lawsuits against the village and the trio of police officers.

In 2012, according to published media reports, they filed a federal lawsuit alleging that Dixmoor and the Illinois State Police coerced false confessions, withheld evidence and invented witness testimony.

Taylor and Barr were convicted in 1997, and those convictions were vacated in November 2011. Harden was convicted in 1995 and also released November 2011. The three men have also been granted certificates of innocence.

Sharp served 10 years and Veal was released after serving seven to nine years.

In their district court lawsuits, the five men allege malicious prosecution, violation of civil rights, failure to intervene, conspiracy to deprive of civil rights, intentional infliction of emotional distress and civil conspiracy, as well as state law respondeat superior and indemnification claims.

Scottsdale contends it issued two law enforcement liability policies to Dixmoor during the time when the rape and murder occurred. The insurance company also issued three public entity policies and three commercial liability umbrella policies to Dixmoor from Oct. 1, 2004 until their cancellation on April 25, 2007.

The policies exclude coverage for punitive damages, intentionally caused or expected harm, and criminal, malicious, fraudulent or dishonest acts.

“The Scottsdale policies contain no obligation to defend or indemnify Dixmoor or its police officers,” Scottsdale asserts in its complaint.

Scottsdale claims it is not responsible to cover Dixmoor and its officers because the allegations involved intentional acts undertaken with the intent to cause harm and the officers acted outside the scope of their duties.

The company also contends that the village and its officers intended or expected the alleged injury of the “Dixmoor Five.”

“There is no coverage under the general liability coverage or public official coverage section of Scottsdale Public Entity Policies for law enforcement activity,” Scottsdale claims. “The allegations in the underlying lawsuits state actions relative to law enforcement activity which are excluded under those policy forms.”

The “Dixmoor Five” have also sued six other people: Tasso J. Kachiroubas, John Menduga, Willie Davis, James Kizart, Jesse Garcia and Richard Packert.

Scottsdale names these six people as defendants in its complaint for declaratory judgment, which states that they are not Dixmoor employees, but alleged to be employees of the state police. The insurance company asserts that its coverage does not apply to these six people.

Wheaton attorney Ray H. Rittenhouse represents Scottsdale.

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