First Mercury Insurance doesn't have to cover private investigator accused of helping frame man for murder

By Dan Churney | May 14, 2018

By TonyTheTiger [CC BY-SA 3.0 (], from Wikimedia Commons

A Chicago appeals panel has ruled an insurance company doesn't have to pay to defend a private investigator associated with Northwestern University’s Innocence Project in a lawsuit brought by Alstory Simon, who claimed the investigator forced him to falsely admit he killed two teenagers in 1982.

In the May 11 decision, penned by Justice Joy Cunningham, the three-justice panel of the Illinois First District Appellate Court found investigator Paul J. Ciolino's alleged wrongdoing occurred years before his insurance policy was in effect.

Justices Thomas Hoffman and Mathias Delort concurred in the decision, siding with Chicago-based First Mercury Insurance Company.

Ciolino had been an investigator for Northwestern University professor David Protess, who has headed the Innocence Project, a group formed  to clear the names of people who may have been wrongfully convicted of crimes in the Chicago area. The Innocence Project operates out of the university's Medill School of Journalism.

Paul Ciolino

The litigation between Ciolino and First Mercury centers on an underlying federal suit filed by Simon against Ciolino, Protess and a lawyer who worked with them, Jack Rimland. Simon alleged the trio framed him for a 1982 double murder to free the real murderer, Anthony Porter, who went to prison in 1983 for the crime. The trio's motive? To enhance their prestige, Simon alleged.

Among the alleged wrongful acts, Simon alleged Ciolino impersonated a police officer and entered Simon's home in 1999, coercing Simon into falsely confessing. Porter was freed and Simon was sent to prison after pleading guilty.

In 2014, Simon's conviction was tossed and he was freed. Simon then sued.

First Mercury then went to Cook County Circuit Court, to ask a judge to declare the insurance company did not owe coverage to Ciolino for Simon's suit.

First Mercury started insuring Ciolino in 2006 and was his insurer at the time Simon was exonerated. First Mercury said it would not help Ciolino, because Simon's claim stemmed from the late 1990s, several years before First Mercury was insuring Ciolino.

Ciolino countered First Mercury had to cover him, because his alleged “offense” continued until Simon was exonerated in 2014, by which time he was under First Mercury's umbrella. Ciolino stressed the final element of the alleged offense did not come into being until Simon was absolved of the murders.

Cook County Circuit Judge Sanjay Tailor sided with First Mercury, and Ciolino appealed.

Justice Cunningham was not persuaded by Ciolino's reasoning.

“Coverage depends upon whether the insured's offensive conduct was committed during the policy period. It defies common sense to construe the exoneration of an innocent person as offensive or wrongful conduct. The offense was the misconduct allegedly committed by Ciolino leading to Simon's 1999 plea and conviction which clearly predated” the insurance policy, Cunningham determined.

Ciolino had also filed a counterclaim against First Mercury, alleging an unnamed First Mercury agent misinformed him in 2006 he would be covered against such a suit as Simon later filed. Ciolino's counterclaim was struck down in circuit court by Judge Tailor.

On appeal, Cunningham agreed with Tailor, finding that regardless what an agent might have said, the policy clearly showed Ciolino would not be covered and he was bound by the policy.

“An individual is assumed to have read and understood the terms of a contract that he has entered into,” Cunningham observed.

Ciolino has been represented by Thomas J. Fleischmann, of suburban St. Charles.

First Mercury has been represented by the national firm of Hinshaw & Culbertson, which is headquartered in Chicago.

On Jan. 2, Ciolino lodged a defamation suit against Cook County State's Attorney Anita Alvarez, documentary filmmaker Andrew Hale and others who worked to free Simon. That suit, as well as Simon's suit, remain pending in court.

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Organizations in this Story

Cook County State's Attorney's Office First Mercury Insurance Company Hinshaw & Culbertston Illinois First District Appellate Court Northwestern University Paul J. Ciolino Thomas J Fleischmann

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