and can we call our two o'clock case making any points if you want to i'm all right with there we can proceed whenever you're ready  is an injury trigger ensure writes its policy for an injury trigger than the policy will provide coverage and the year that the prosecuting person is first injured in illinois that's understood to be the year where the arrest or the charges take place the second option that the insurer has is to write a policy that is triggered based upon the time when the insurer commits misconduct that's a wrongful act trigger and if the insure could coerce a witness in here to the prosecutor could use that evidence to initiate charges if they pick the wrongful act trigger it's the year one policy that governs and then the third trigger is an accrual trigger and if if the insurer writes a policy for an accrual trigger then it will provide insurance in the year when the charges are dismissed in a manner indicative of innocence and the illinois union policy  unlike certain other policies provides it uses language that it triggers in the year offense and some policies made very clear which trigger they're picking  interest around the work that so for example both of them had a definition of personal injury that if i personally injury is injury caused by the offense of malicious prosecution and both courts were able to look at that definition of personal injury and say offense has a positive effect on the injury that tells me something about effects that means that offense is being used in the in the sense of an action the definition of personal injury that illinois union uses skips over the injury requirement entirely and literally defines personal injury as the offense of malicious prosecution itself right and and malicious prosecution has five elements and one of them oh no union policy also talks about when the damages and claim expenses for which you become legally obligated to pay see if they retain women you'll be entitled to indemnification i guess when you become that seems to me there's a claim or malicious prosecution so if you read the policies and all you're reading something that says well you know we're going to pay up if there's a judgment there's interest we can't know that until there is a judgment and or in offense to give us some limitations out some understanding of what the intent of using the word offense is we know what that's coming to different things it can mean bad conduct or it could mean the cool of the tort there's additional language in the actual ensuring clause that i would point to also not only do we have a definition of personal injury that is defined as the offense itself as opposed to injury caused by the offense we also have the the verb person committed also suggests an action it accrue toward doesn't commit a violation commission is suggest action that's not the language that illinois unionised mission is a who are we looking at and when to determine whether the prosecution was malicious well so but malicious is i think a shorthand for a lack of probable cause of bringing the charges the court should look at that at the outset there's a problem cause he than absolutely and so it's in the later torts suit that malice slash lack of probably cause gets examined in the vault with the context of the fright but it's determined that the out it's not it's not we don't look at the mindset of the prosecutor or the police two years after the case is after the defendant is charged it's at the time he's charged if that's what the allegation is that was lacking probable cause for these time period for examining whether the prosecution was malicious was when it was fine that i would say yes in part it is the tort of malicious prosecution can be committed by britain or you don't look at the end of the case and the accrual of the torch to see if there's malice then you look at somewhere along the continuum of this prosecution there is malice because  unreliable so no one could possibly know they have until some judgment is made later about whether he's exonerated about whether he is his his the case you have to look at it from the end but i would say absolutely and i would add to that that the criminal defendant is disallowed from challenging your what once there's the initial public posturing there disallowed from challenging public cause they have to go to trial and they have to challenge whether the evidence is a legal defense so they can't say at any point now oh wait he should have been prosecuted that's that boat has sailed it's gone there's there's no way they can stay there so the only thing they can say now so we have a legal and so if after the acquittal the defendant alleges that the prosecution was malicious and or looking at that claim is going to look at what the police knew half the time the defendant was and that state of mind that or at some point when part time when probable cause disappeared because they learned that a witness was lying but it wouldn't be at the end of the case you have to have the case over before you get to and as we've argued we think there is coverage not only because of the malicious prosecution the clear in simple language in the policy that covers an occurrence that happens during the policy period and the occurrence is defined as testified personal injury offenses using the word offenses it delineates false arrest  imprisonment and militias prosecution all of these specified offenses are clear common law torts with clear elements that have to be satisfied and in the case of malicious prosecution as as has been discussed here earlier there are elements the last requirement of which is favorable terminations in favor of the accused and in looking at the history of the coverage cases and wrongful conviction cases and are cases where malicious prosecution is the issue in illinois i think it's very important that you go back and look at security mutual even though all the illinois courts have said it was overturned by the supreme court it's important to say it was overturned on the issue of arbitron billeted and it was not overturned a merits that case has been cited by cases cited what it's certainly not the majority view no your honor absolutely and what has come to pass now in over the evolution of these cases which i would really say is only the last ten to fifteen years when uncle conviction has really become an issue because of the d n a so you're seeing more of these wrongful conditions and insurers don't want to pay the kind of money that they have to in these cases so their head has now been a split that is referred to as the majority rule which is where the malicious prosecution is triggered by where the engine re occurs when wrongful acts occurred and on the opposite spectrum is the minorit the malicious prosecution is triggered by the complete towards a malicious press and all of them depend on the language of the particular policy and so that there can't be a one size fits all because every policy has a different language very specifically and that is what we're looking at here why the illinois union policies are really distinguishable from the policies in all of the other illinois cases starting the city of zion that was  does not talk about injury there is no this policy has nothing to do with injury or that you are living in any police around the country that you have language like oh no union well pounces language is very different from most of these these other policies because it doesn't talk about the injury it doesn't talk about wrongful acts it goes to the pure unvarnished personal injury is one of the specified following offenses and really i think it's going to boil down to the court looking at what is offense mean in this case is offense tantamount to  and it's interesting because in first berkery they don't even mentioned blacks they go to miriam webster and talk about a colloquial definition of of offense and in looking at the first mercury policy language it is different than the policy language here because it leads him with the arm of a phrase that says personal injury caused by an offense arising out of your business that's sort of a preamble in the first mercury and it could lend itself more to a colloquial version because it's it's talking about a personal injury caused by an offense arising out of your business so i understand why first mercury came down the way it did and i think it's different than our case and i think that i this this court does not have to  decisis because you don't have a supreme court decision you don't have to follow and i think all this court really has to do is look at the language of the policy itself and say this is it would be written if it has a recurrence then it finds a current has a that's a specified personal injury and that is malicious prosecution so let me read what we're talking is and it also if you go a little farther it says that it has to take place the person wants us to take place during the policy carry and that also is different that brings it down to the specific time at which the  complete it doesn't you can't have malicious prosecution it will not take place until that final element is is satisfied and there goes back to one thousand nine hundred seventy eight's illinois supreme court case that listed the five elements of malicious prosecution included the terminations of the sitting in favor of the of the plaintiff in this case that the defendant in the criminal trial that so if the tort is incomplete without those elements then you cannot have a malicious prosecution happening until all five of those elements are present and that and they all happened during the terms of these policies absolutely and from the the insurance perspective to you buy a policy and it says that it covers malicious prosecution and you look at the plain ordinary meaning of that and you say we're buying a policy that's going to cover it if we get a claim of religious prosecution this will cover it and so i think to try to twist the words around and try to imbue meaning that is not there which is what i think the insurers are doing this in this case saying yeah let's look at miriam webster and use that colloquial definition that's not one of the things about the illinois union policy is that it has a direction in their chapter on i'm sorry paragraph twelve of the conditions talks about how you are to interpret the policy and it says that this is a commercial contract and you should interpret it with the meaning that what you would expect in a commercial contract and others your interpretation of a malicious prosecution taking place meaning you have to have a final resolution in favor of the wrongfully prosecuted defendant yes how does it count you coverage for anything a spree us supreme court case addresses that specific issue and damages it talks about why malicious prosecution takes into account all the damages before that and contrast it says it goes back in time once you have this it will cover everything that happened during that period and it contrasts that with a false arrest claim which there from which he was arrested until the time it was like gulf you have a limited period of time for damages whereas malicious prosecution once that is determined it goes back in covers the whole water and that that is the u the images and get the judgment that mr sanders of pain for the entirety of his damages but that's different than saying if i understand your argument correctly you're saying you're focusing on this the malicious prosecution the offense must take place during the policy period meaning the defendant must be acquitted must be exonerated during the policy period so there gets you one policy period right mary and it doesn't it doesn't get you we're not talking about multiple prosecutions here well that's a different theory i mean that is a different thing i mean if you're if yes if if what you're saying is it's the final ac necessary to allow this defendant to start the statue of limitations running for a malicious prosecution claim yes the initial reverse all the hung jury none of that matters because those are final  exaggerations in part for the purpose of trigger right yeah the purpose of trigger yeah we're looking at it if it for malicious prosecution for saying that that is the trigger under this policy it is it would be that policy if malicious prosecution includes these five elements and and they include prosecuting this guy malice at having a terminations and favor the defendant all of it and the damages that he suffers all of it has to be part of the package of malicious prosecution it doesn't it's not just enough to say oh it was vacated or he was found not guilty and you get one day with the damages for the time you spent there at the trial that that happened or twenty days of the time that dry up and it includes the whole package that started at the beginning you have to look from the beginning to find out whether or not the prosecution was malicious and once there's the finding that fifteen million dollars right i think that kind of goes along with the hack versus humphrey ruling to the damages extend back in time once you have all the elements of  so we are on our our position is that here even though there are cases that hold otherwise both depending on the the policy language you can have a majority feel you can have your first thank you thank you place for purposes of triggering coverage under the insurance policy and i think the answer that question to touch upon something that justice mason was was and some of your questions was what is it about a prosecution that makes it malicious what makes a prosecution offensive makes it an offense it's not the exoneration that makes a prosecution malicious or offense or an offense it's the institution that's imposed by the courts but the exoneration itself is not the best the offense is when the police as they allegedly did in this case manufacture false evidence against the against the claimant against the criminal defend and that charges are maliciously instituted against the defendant based on that fabricated evidence when the police allegedly know that that that person has been wrongly charged but wait a minute i mean there are some later it's this is one of those very few backwards towards where you have to get to the end before you can look at the beginning i don't know that i necessarily agree with that respectfully because you know in those cases you know that there is a span of time between the conduct and the injury and when you're dealing with those cases on a current space policy is most occurrence face policies in the context of bodily injury or property damage trigger date is when the know this case is when does the offensive always just prosecution take place and i think in that situation you look at first mercury which which which asks what does it mean what does the word offense mean in the context of malicious prosecution and first mercury the court said that the offense refers to the wrongful conduct that results in the initiation of of the charges against the against a criminal defendant but here we have the definition of offense being malicious prosecution so we don't have  so we don't have a problem knowing what offense means in this case as opposed to the first marker but we didn't have a problem knowing what offense man and first record either i mean offensive first mercury was defined as i mean here's the difference with first mercury is that in first mercury the trigger date was the offense being committed during a policy period and in this case it's the effect is either happening or taking place three miles here and so that's the distinction that they've made is that there's a meaningful difference between an offense being committed during a policy period an offense taking place or happening during a policy great i use those two phrases because the way our policy actually works is that both the occurrence and the personal injury have to take place or posture it says the occurrence of what's happened during the policy period and personally injury must take place during the policy period both of those collapse into the offense of malicious prosecution and so that's really the distinction that they want the court to make is that we somehow intended a different result than first mercury because instead of saying that the offense must be committed during  my question that everything's ok here's my question give me language of a policy that would pass muster and what language would have charges are or the conviction is vacated during the policy period the charges are dismissed during the policy period so you know there's not there's always that differ how does that then differ from what we have because that's specifically talked to the trigger and that is specifically when the charges are dismissed or when when there's an exoneration here we're talking about when does the if when does the offense occur which if you look at the case off you look at first mercury and you look at the cases that it cite it says when we talk about the offense where we're referring to the the bad act referring to the offensive conduct that has resulted in this malicious prosecution the exoneration is not is not part of the offense in the right but he so it would be an insurance policy if he did ensure anything well no i well no i don't i don't think that's correct at all your honor i believe that if the second that mr problem because you're bound by the jury's determination in the first instance and secondly i think as a practical consideration courts don't want every person who's been convicted of a crime to file a malicious prosecution action there has to be some they did have coverage under a united national policy and united national paid its policy limit towards satisfaction of the fifteen million dollars consent judgment that was that was sent they want coverage under both the  the point being is that in order for this court not to follow the first mercury you have to reach the conclusion that defining the triggering event as the offense taking place during the we only cover liability resulting from an occurrence during the policy period occurrence was defined as the offenses listed in the definition personal injury and personal injury listed most prosecuted as one of the offenses i just want to read from the court's opinion there the court's opinion a county of mclean and this is paragraph thirty two states plaintiffs argue that because demons malicious prosecution claim was not fully right for adjudication until the criminal proceedings against him were terminated the malicious prosecution took place in quotes when the state dismissed the charges against  language of the policy so in county of mclean they were addressing the court use that phrase when does the offense take place and they said the offense does not take place  exoneration happens because that's the final on the case that it happens when the wrongful conduct leads to the initiation of charges against the against the claimant without probable cause  law i mean there's no question that the five elements for malicious prosecution coing are saying that you cannot bring in malicious prosecution claim until you've been exonerated the problem with security mutual was that the court you won't even find they the insurance policy language in that union where that where the security mutual court went wrong which has been pointed out by this court in the city of zion and subsequent cases is that they conflated the trigger date for purposes of an insurance policy with the elements of the underlying cause of action ok so that would be a really safe bet then for insurance companies to get the premiums for  malicious prosecution in a state where the average criminal trial takes a year two years three years appeals take a year two years three years and probably i don't say none of them w be during the policy period but i'd say very very small number of them that were actually right for the tort of malicious prosecution would ever be during the policy period because healthy periods are generally in one year so if you've got a criminal case it's going t say minimum two years every insurance company in the state's going to say are not policy period we don't know right so you get a premium for it right but you never have to pay out well no not not a i mean if you're the insurer on the risk when the when the malicious prosecution is instituted then you don't have that defense you have to cover that and i mean actually what the courts have pointed out with the problem with a double aid triggered day to say that it's the  militias prosecution that's the trigger date is that that's actually where you can have problems either from the insurance cover or from the insured musher because you can have a situation where the insured knows that they've maliciously prosecuted oh we'll cover malicious prosecution except under these circumstances when the prosecution sorry a year before two years before when you know what right your own exemptions you you write the policy so if it's just a blanket policy that says we're going to come from malicious prosecution that's your choice since that negotiating that language you're you're putting in there you have the power that's true i mean these reason to take the risk that twenty years ago they some cops screwed up or some policies to two uninsured that cover the offense of malicious prosecution and you're on the you're on the on the risk at the time the most is prosecution excuse me that malicious prosecution is instituted and you stay on the risk throughout all of the appeals and all of the post conviction proceedings and then you like this is not going very well this conviction is going to get reversed so you drop it so you you drop your insured at that point you stop writing the policies and then the next day the person is exonerated so you're telling me that that situation that under this language the carrier because there could escape they could see this we were on the wrist but we maliciously prosecuted this guy but we you know we can hang on to this and but we can drop him you know the week before he's exonerated insurance companies take risks they have reserves they get premiums they write policies all of that is in your combination you either write some exceptions and malicious prosecution section or you don't cover but you write the policy you make that choice and then take the premiums for it that's right and you take the risk or and we assumed the encounters figured out based on that risk w premiums would be right and the risk that my client assumed in this case was the risk that an offense of malicious prosecution would take place during the policy period and again this all goes back to what does it mean for the us and its of malicious prosecution to take place and we think as the majority of courts have concluded as the court first mercury concluded that the offense given the common understanding of that's her meaning is the wrongful conduct that leads to the institution of charges without probable  different than these other policies you accurately quote the language in ca even clean but that wasn't the triggering why was the triggering language was only let me find it here but the triggering language in conny of mclean if you find if you follow it that the first point is that it would cover liability for personal injury resulting from an occurrence during the policy period so that the trigger there that you're focus on is the occurrence during  occurrence is defined as through a couple of definitions offensive malicious prosecution it doesn't say offense committed it's just it's the offense of malicious  have to happen you didn't have the takes place so what i'm suggesting is that for the court to draw the distinction that an offense is committed when the charges are initiated but an offense only takes place or only happens at at at some point during exoneration that that's i think that's a meaningful meaningless c and if i could i just want to then maybe shift over to the multiple trigger issue because and just because i there were some comments during the council's argument of his want to talk about number number one there were never there was never a new prosecution that was instituted against mr sanders this was all the same prosecution what happened was his conviction was vacated based i believe on ineffective assistance didn't dismiss the charges against him in that that would have been a double jeopardy issue then for them to bring new charges so these are always the same charges it was the same allegedly malicious prosecution from the return of the indictment through his ultimate acquittal after the death of their trial and that was what about the changing the tactics to accountability well i think well i mean if you look at the pleadings on that they don't actually support that argument because the whole premise of the malicious prosecution at least as blood in the underlying complaint was that the police and the nifty elated two witnesses remain ha t and ms armstrong was the victim that they manipulated them into identifying mr sanders as one a quote offender number three which was the person who allegedly ordered the shooting and so and i know they argue they change the of accountability theory because the order of the shooting based on what i read in the pleadings that that was that was it was always you know that was the whole basis for the alleged malicious prosecution was that they manufactured this witness testimony that mr sanders was the not the shooter but the person that had ordered shootings but but again with even with respect to that if you look at what the alleged wrongful conduct was in relation to the second and third trials it was the fact that this is how it's played in their complaint it was the fact that they continued to rely on those the alleged barricaded or manipulated witness testimony to touch up is just slightly there is a unique situation is actually a six circuit case that came out i think a year ago on this where there could be a situation if you think about it where the initial institution of the proceedings is malicious but that's not that's not the situation that you have here that the the claim against the city was that this prosecution was malicious from the get go because they were out to get mr sanders and they manufactured evidence in order to prosecute him for a crime that they knew he did not commit and so this is not a situation where you're dealing with where you where you could have a  prosecution that's not malicious but then there's something that happens during the prosecution that renders it malicious and then i guess the last point on that is if you look at the st paul versus city of wa case the court did address this issue because that's a case that involved a whiner of there and i think like for these cases actually involve the rivera situation but he was tried and convicted three times and in that case it was argued that there was a new triggering event each time you know they they subject it into a trial and violated as brady wri that disclosing exculpatory evidence and the court rejected that argument and said now this is all one malicious prosecution and they're not going to have it's not it's not a continuing trigger it's not multiple trigger during the third trial of one rivera the court in that case rely on language of indian harbor which was not a multiple trial issue that was that indeed harbor case addressed the trigger of the did exoneration so in that st paul case the court did not address the i was involved in that i know i did not address the cases that we had raised out of illinois and the u s supreme court that say that each trial is a new prosecution each trial the slate is wiped clean so we've raised that again here a new trial there would be a double jeopardy problem so it has to be the same prosecution from beginning to end well in looking at it from a coverage viewpoint it is it's there was a decision made starr over and so it does begin a new prosecutor should we just we've raised the cases that are out there in terms supreme court in the illinois and us that say it really it's as if those former trials never happened on from a from a legal standpoint so we would just ask if the court is going to consider that multiple theory that the court do consider that that there it is a new new start for each new trial with regard to the the policy  number of years to the city of chicago heights starting in two thousand and ten and basically they reissued the same policy but in twenty twelve american safety came down and insurers have ever not legation to be aware of what the law is developing was and in american safety it was very clear that that if you have a claim for more which prosecution the trigger date would be the completion of that tort now it was totally within illinois union and star indemnities control to change that policy when they issued it for the twenty thirteen fourteen policy year it was clearly in effect with the powers didn't go into effect on november the case came down in april and in reading policies and i'm sure the court has seen them all there are indorsements of the time that are added to policies and i have seen indorsements now since the evolution of these cases and states self insured indemnity is one of the carriers that was involved in the county of mclean they won that case but the next here the policy that came out had a definition as having a record are stuck with the language that they have in the policy now which is we maintain covers malicious prosecution an what offense means i would ask you to go on and read prograf thirty three and thirty four where the court clearly says the definition of occurrence which could be either the completion of the tort or it could be an activity is made clear by the definition of personal injury which means under the mclean policy injury caused by malicious prosecution and ensuring language they are this is just my notes insurance company can decide what it will insure perry yes i am charged a premium for that so it's after the fact to say well it's not favorable to us because that policy insurer would never pick an accrual rule because that's just bad for insurers but the that's not true there's this pluses and minuses to whichever trigger you pick because it's your boy to end up with you know unpredictable facts that are going to land you in one of those policy years and there are reasons why an insurer would want in a cruel and use that if you don't have an accrual rule then you have to wait decades or longer potentially to find out if you're going to have a claim that you made a profit you can't close your books so didn't you know arguably more significant and harsher ways then juries did twenty five years ago or thirty years and so when when when insurers are trying to price out their premiums they want to know what a jury is going to be in the record and i'm not going to say what it what it does cover only to make the point that it is consistent for united national to have a trigger that is different than the illinois union chose in that case and that is a thing that happens