In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1215 & 11-3729

NORTHFIELD INSURANCE COMPANY and

ST. PAUL FIRE & MARINE INSURANCE COMPANY,

Plaintiffs-Appellees,

v.

CITY OF WAUKEGAN, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 7402—Charles R. Norgle, Judge.

ARGUED MAY 24, 2012—DECIDED NOVEMBER 21, 2012

Before CUDAHY, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Northfield Insurance Company

and St. Paul Fire & Marine Insurance Company (collectively, the “insurers”) provided law enforcement liability

coverage to the city of Waukegan, Illinois, and its employees acting within the scope of employment. In 2009,

Bennie Starks filed a civil rights suit against the city

and a handful of current and former Waukegan police
2 Nos. 11-1215 & 11-3729

Northfield issued a third policy covering November 1, 1995, 1

to November 1, 1997, but the parties agree that this policy

is not at issue.

officers, among others, alleging that each played a role

in his decades-old wrongful conviction. In response, the

insurers filed an eight-count declaratory judgment

action seeking a declaration that they have no duty to

defend or indemnify the city or employees. The district

court granted summary judgment in favor of the insurers, reasoning that the disputed insurance policies

did not cover the city at the time of the alleged wrongdoing. We affirm.

I. BACKGROUND

The underlying facts are undisputed. Northfield Insurance Company issued two comprehensive general

liability policies to Waukegan, effective November 1,

1991, to November 1, 1995. The two Northfield policies 1

at issue contained a law enforcement liability provision,

which provided that the insurer would cover all sums

for which the city “shall be obligated to pay by reason

of errors, omissions or negligent acts arising out of the

performance of the Assured’s duties while acting as a

law enforcement official or officer in the regular course

of public employment.” From November 1, 2006, to

November 1, 2009, the city maintained a similar policy

with St. Paul Fire & Marine Insurance Company. Like

the Northfield policy, the St. Paul Fire policy contained

a law enforcement liability provision which provided
Nos. 11-1215 & 11-3729 3

coverage for “wrongful act[s] . . . committed while conducting law enforcement activities or operations.” Both

policies covered the city on an “occurrence basis.” And,

the policies defined “occurrence” and “personal injury”

to include false arrest, false imprisonment, malicious

prosecution, and other civil rights violations. Both

insurers also provided coverage to the city’s officers

and officials acting within the scope of their employment. Evidently, other insurance carriers provided coverage during the intervening years, and those carriers’

duties to defend are being litigated in at least two

separate declaratory judgment actions.

In January 2009, Bennie Starks filed the underlying

civil suit, which the city quickly tendered to Northfield

and St. Paul Fire for a defense. Broadly speaking, Starks

alleges that the city and several police officers, among

others, unlawfully conspired to convict him of crimes

he did not commit. In his complaint, Starks primarily

seeks damages for false arrest and imprisonment,

wrongful conviction, denial of due process, and malicious

prosecution. The background of his suit is as follows.

In January 1986, a woman reported to the Waukegan

police that she had been attacked and raped. Officers

quickly arrested Starks, who was then charged and convicted of three counts of sexual assault. Twenty years

into his sixty-year sentence, newly surfaced DNA

evidence raised serious doubts about his guilt, and

on March 23, 2006, the Illinois Appellate Court reversed Starks’s conviction and ordered a new trial.

On January 20, 2007, the Illinois Appellate Court issued

the related mandate returning jurisdiction to the trial
4 Nos. 11-1215 & 11-3729

On the eve of oral argument, the insurers asked us to strike 2

the appellants’ motion to cite supplemental authority, which

included a citation to and analysis of the trial court’s nolle

prosequi order. The insurers argue that the appellants’ motion

was supplemental evidence that was not before the district

court rather than supplemental authority. Semantics aside, we

take judicial notice of the trial court’s order and deny the

insurers’ motion to strike. See In re Salem, 465 F.3d 767, 771

(7th Cir. 2006) (taking judicial notice of state-court dockets

and opinions).

court. At the time Starks’s conviction was overturned,

state prosecutors moved to re-prosecute him. But on

May 15, 2012, one week before oral argument in this

appeal, the state trial court entered a nolle prosequi order

effectively terminating any further criminal proceedings

against him.2

On November 25, 2009, Northfield and St. Paul Fire

filed an eight-count declaratory judgment action, 28

U.S.C. § 2201, seeking a declaration that it has no duty to

defend or indemnify the appellants for the claims made

in Starks’s suit. The action was initially docketed with

Judge Coar. In June 2010, the district court denied the

appellants’ motion to stay the proceedings pending

resolution of Starks’s criminal case, and in December 2010, it entered summary judgment in favor of the

insurers. The appellants filed a timely appeal of both

decisions, which we docketed as 11-1215. On appeal, we

issued a limited remand so the district court could

clearly spell out the terms of the declaratory relief. Northfield Ins. Co. v. City of Waukegan, No. 11-1215, slip op. (7th
Nos. 11-1215 & 11-3729 5

Cir. Aug. 23, 2011). In the interim, Judge Coar retired,

and the case was reassigned to Judge Norgle, who

promptly entered a Rule 58(a) judgment in favor of the

insurers. The appellants filed a timely appeal of that

ruling, which we docketed as 11-3729. On December 13,

2011, we consolidated the two appeals for purposes

of briefing and disposition.

II. ANALYSIS

On appeal, the appellants argue the district court

erred by (1) granting summary judgment in favor of the

insurers; (2) denying their motion to stay the declaratory

judgment action pending resolution of Starks’s criminal

proceeding; and (3) granting overbroad declaratory

relief. We take each argument individually.

A. Summary Judgment

We review grants of summary judgment de novo,

viewing the record in the light most favorable to the

appellants and drawing all reasonable inferences in

their favor. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir.

2011). Summary judgment is appropriate when “the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The question before us is whether the allegations in

Starks’s complaint trigger Northfield’s or St. Paul Fire’s

duty to defend. To answer that question, we look to
6 Nos. 11-1215 & 11-3729

Illinois law, which the parties agree governs this dispute.

Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir.

2010). Under Illinois law, we compare the allegations in

Starks’s complaint with the express language in the

insurance policy to determine whether an insurer’s duty

to defend has been triggered. Gen. Agents Ins. Co. of Am.,

v. Midwest Sporting Goods Co., 828 N.E.2d 1092, 1098 (Ill.

2005). “If the underlying complaint alleges facts within

or potentially within policy coverage, an insurer is obligated to defend its insured even if the allegations are

groundless, false or fraudulent.” Id.; accord CMK Dev. Corp.

v. W. Bend Mut. Ins. Co., 917 N.E.2d 1155, 1163 (Ill. App. Ct.

2009) (holding the duty to defend is “much broader” than

the duty to indemnify). An insurer may justifiably

refuse to defend the insured only if “it is clear from the

face of the underlying complaint[ ] that the allegations

fail to state facts which bring the case within, or

potentially within, the policy’s coverage.” U.S. Fid. &

Guar. Co. v. Wilkin Insulation Co., 578 N.E.2d 926, 930

(Ill. 1991); accord Lagestee-Mulder, Inc. v. Consol. Ins. Co.,

682 F.3d 1054, 1056 (7th Cir. 2012). One such instance

where an insurer can justifiably refuse coverage is

when the underlying allegations accrue outside of the

relevant policy period. Am. Safety Cas. Ins. Co. v. City

of Waukegan, Ill., 678 F.3d 475, 477-79 (7th Cir. 2012);

McFatridge, 604 F.3d at 344. Here, the insurers have no

duty to defend if Starks’s allegations occurred outside

of the policy periods.

With that in mind, we turn to Starks’s complaint, which

we liberally construe in favor of the appellants. Wilkin

Insulation Co., 578 N.E.2d at 930. Paragraph thirty-nine
Nos. 11-1215 & 11-3729 7

of the complaint perhaps best summarizes Starks’s

claims. There, he alleges that he was deprived of “his

rights to be free from unreasonable arrest and seizure,

from wrongful confinement and imprisonment, and his

rights to access to the Courts and to a fair and impartial

trial, as protected by the First, Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendments.” (Starks Compl. at 6-7.)

From that, we infer that Starks is asserting claims for

malicious prosecution, wrongful conviction, denial of

due process, and false arrest and imprisonment, the

last of which is an overlapping theory of relief, Wallace

v. Kato, 549 U.S. 384, 388 (2007). Starks’s complaint

also suggests that he intends to bring an intentional

infliction of emotional distress (IIED) claim once the

criminal prosecution against him terminates. (Starks

Compl. at 12 n.3.) Because we can imagine an IIED claim

potentially falling within the policy terms, we will

assume that Starks fully intends to submit such a claim.

See Wilkin Insulation Co., 578 N.E.2d at 930 (insurer must

defend all claims potentially within coverage).

We pause momentarily to reject the appellants’ suggestion that Starks could have or plans to assert claims

for some unknown torts grounded in the First and

Eighth Amendments. Potential theories of recovery

might include a deprivation of his freedom of speech

or religion or some type of deliberate indifference claim

under the Eighth Amendment. The appellants argue that

because Starks referenced the First and Eighth Amendments without specifying theories of relief, we should

wait to definitively determine whether the insurers

have a duty to defend until Starks has fully outlined
8 Nos. 11-1215 & 11-3729

his claims. Although we acknowledge that “the duty to

defend does not require that the complaint allege or use

language affirmatively bringing the claims within the

scope of the policy,” Am. Econ. Ins. Co. v. Holabird & Root,

886 N.E.2d 1166, 1171 (Ill. App. Ct. 2008), we will not

cobble together a more compelling or comprehensive

complaint than what is written or what can be inferred.

After all, we are charged with comparing the underlying complaint, inferences, and other known facts to

the insurance policy, not some hypothetical or hopedfor version. Conn. Indem. Co. v. DER Travel Serv., Inc., 328

F.3d 347, 350-51 (7th Cir. 2003) (stating “it is the actual

complaint, not some hypothetical version, that must be

considered”). Here, there are no supporting allegations

even hinting at a First or Eighth Amendment claim.

Starks never alleges that his right to free speech or

religion was suppressed, nor does he allege that he was

subjected to cruel or unusual punishment or any type

of deliberate indifference. Moreover, it is difficult

to imagine a scenario where the city and its police

officers are responsible for these types of

offenses rather than state-prison authorities. Ultimately,

nothing in the complaint or any generous inference

we may grant the appellants suggests that Starks has

a claim under the First or Eighth Amendments.

We now turn to the three discrete allegations Starks

makes in his complaint. We analyze each individually

to determine whether there is a duty to defend.
Nos. 11-1215 & 11-3729 9

1. False Arrest and Imprisonment

Starks first alleges that he was falsely arrested and

imprisoned for a crime he did not commit. We need

not spend much time discussing the insurers’ duty to

defend these claims because McFatridge and American

Safety are directly on point. Generally, Starks’s false

arrest and imprisonment claims imply that he was detained without legal process. Wallace, 549 U.S. at 389.

As such, “[t]he false imprisonment ends, and the claim

accrues when he is held pursuant to a warrant or other

judicially issued process.” McFatridge, 604 F.3d at 344.

Here, Starks was arrested (presumably subject to an

arrest warrant, although the record on this point is

unclear) and duly convicted in 1986. To the extent

Starks’s complaint makes out a false arrest and imprisonment claim, that offense accrued sometime in 1986

prior to his conviction. See id. Because neither the Northfield nor the St. Paul Fire policies were in effect in 1986,

the insurers have no duty to defend against these claims.

2. Malicious Prosecution, Wrongful Conviction, and Denial

of Due Process

Starks next alleges that he was the victim of malicious

prosecution, wrongful prosecution, and a denial of due

process, all of which contest the fairness of his prosecution. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).

To succeed on such claims, Starks must prove that he

was exonerated; until then, he has no claim. Am. Safety,

678 F.3d at 478. With that in mind, we held in
10 Nos. 11-1215 & 11-3729

McFatridge and American Safety that the trigger date

for a malicious prosecution claim occurs on the day of

exoneration. See Am. Safety, 678 F.3d at 478 (“[U]nder

Illinois law, the issuer of the policy in force on the date a

convict is exonerated must defend and indemnify an

insured whose law-enforcement personnel violate the

Constitution (or state law) in the process of securing a

criminal conviction.”).

Here, the district court was presented with a complaint that contains slight inconsistencies as to the date

of exoneration. Starks initially alleges that the Illinois

Appellate Court reversed his conviction on March 23,

2006, (Starks Compl. at 5), although that court did not

issue the related mandate returning jurisdiction to the

trial court until January 20, 2007. (Id. at 6). Momentarily

ignoring the importance of either date, both of these

allegations imply that Starks was fully exonerated following action by the Illinois Appellate Court. Alternatively, the complaint alleges that the state’s attorney

sought to re-prosecute Starks even after the Illinois Appellate Court overturned his conviction. (Id. at 6; n.1.)

This allegation, of course, suggests that neither action

by the Illinois Appellate Court exonerated Starks,

which means that his malicious prosecution claim

has not yet ripened. See Am. Safety, 678 F.3d at 478.

Notwithstanding that inconsistency, we can definitively

say that Starks’s malicious prosecution (and related)

allegations do not trigger the two Northfield policies in

effect from November 1, 1991, to November 1, 1995.

Because Starks was not exonerated during that policy

period, Northfield has no duty to defend his malicious

prosecution claims.
Nos. 11-1215 & 11-3729 11

That leaves us with the St. Paul Fire policy, effective

November 1, 2006, to November 1, 2009. Because we are

charged with liberally construing the complaint and

policy in favor of the appellants, we will evaluate the

two divergent lines of allegations in Starks’s complaint,

while granting all reasonable inferences to the appellants. We take the easy strain first and assume as true

the allegation that Starks has not yet been exonerated.

If true, then Starks’s claim for malicious prosecution

has not ripened. In other words, Starks was not

exonerated during St. Paul Fire’s policy period, and

thus, the insurer has no duty to defend in this scenario.

The other line of allegations suggests that Starks was

fully exonerated once the Illinois Appellate Court

vacated his conviction. If true, the question for us is

which date applies: the date of the reversal or the date

of the mandate. This is also a relatively easy question

because the law in Illinois clearly provides that the effective date of an Illinois Appellate Court decision is the

date of judgment, not the date the mandate was issued.

PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d 563, 570 (Ill.

1981) (“The date of the issuance of the mandate does not

control the effective date of the appellate court judgment.”); Hickey v. Riera, 774 N.E.2d 1, 10 (Ill. App. Ct. 2001).

Thus, even if we were to read the complaint to suggest

that Starks was fully exonerated, the effective date of

that exoneration is March 23, 2006, which falls outside

of St. Paul Fire’s coverage.

This is not the end of the discussion, however. One

week before oral argument in this appeal, the state trial

court issued a nolle prosequi order in Starks’s criminal
12 Nos. 11-1215 & 11-3729

case, which effectively terminated any further prosecution against him. At oral argument, the appellants argued

that the nolle prosequi is not a final disposition, and

instead, it is a procedure that reverts the matter back to

the same condition that existed before the commencement of the prosecution. In other words, the appellants

read the nolle prosequi order as reverting the date of

exoneration back to January 20, 2007, the date the

mandate was issued. We have already rejected the

notion that the mandate is the effective date of disposition and thus, exoneration. But even if that were not

the case, the appellants have mischaracterized the

effect of a nolle prosequi. For civil malicious prosecution

matters in Illinois, “a criminal proceeding has been terminated in favor of the accused when a prosecutor formally abandons the proceeding via a nolle prosequi,

unless the abandonment is for reasons not indicative of

the innocence of the accused.” Swick v. Liautaud, 662

N.E.2d 1238, 1242-43 (Ill. 1996). The Swick rule leaves

two possibilities for Starks and the appellants. If the

prosecution was abandoned for reasons of Starks’s innocence, then May 15, 2012, is the trigger date for his

malicious prosecution claim. On the other hand, if the

prosecutors dropped Starks’s case for some reason not

indicative of innocence—such as the unavailability of

a key witness—then the nolle prosequi order would not

have terminated the prosecution in Starks’s favor,

leaving Starks yet to be exonerated. We need not

decide whether the nolle prosequi order in this case is

indicative of innocence because in either scenario,

the malicious prosecution occurrence falls outside of

St. Paul Fire’s policy.
Nos. 11-1215 & 11-3729 13

We must address one more issue before examining

Starks’s final allegation. Specifically, the insurers invite

us to reconsider our holdings in McFatridge and American

Safety by asserting that those cases interpreting Illinois

law contradict the vast majority of other jurisdictions.

As we have already recounted, those cases hold that

the trigger date for a malicious prosecution claim in

Illinois is the date of exoneration. See Am. Safety, 678

F.3d at 478; McFatridge, 604 F.3d at 344. But the overwhelming majority of jurisdictions to address this

issue consider the trigger date to be the date of the underlying criminal charges or conviction. Am. Safety, 678 F.3d

at 479 (collecting cases). Although we acknowledge Illinois’s minority status, we have recently found that the

one Illinois Appellate Court opinion on point plainly

holds that the trigger date for a malicious prosecution

claim is the date of exoneration. Id. at 478-79 (citing

Sec. Mut. Cas. Co. v. Harbor Ins. Co., 382 N.E.2d 1 (Ill. App.

Ct. 1978), rev’d on other grounds, 397 N.E.2d 839 (Ill. 1979)).

As a federal court interpreting Illinois law, we are not

entitled to singlehandedly modify the Illinois rule

without some new direction from the state. Moreover,

we fully analyzed the Illinois rule and the majority

rule in American Safety not more than a few months

ago, and we see no need to repeat that discussion

here. Suffice it to say, we decline to disrupt our own

precedent or that of the Illinois Appellate Court, see

Blood v. VH-1 Music First, 668 F.3d 543, 546 (7th Cir.

2012) (permitting federal courts to give “proper regard”

to the state’s lower courts). Accordingly, we apply the

Illinois trigger rule for civil claims of malicious prosecution.
14 Nos. 11-1215 & 11-3729

3. Intentional Infliction of Emotional Distress

Finally, Starks suggests that he plans to bring an

IIED claim if and when he is fully exonerated. Because

Illinois requires an insurer to defend all claims that

are potentially within coverage, Wilkin Insulation Co., 578

N.E.2d at 930, we assume that Starks will eventually

bring this claim. That said, we must examine a potential

IIED claim to determine whether it occurred during

the policy periods.

Generally, “the final element of the tort marks the

occurrence” or trigger date, Am. Safety, 678 F.3d at 480, and

IIED claims are no different. But here, the appellants

change course and argue that the injuries stemming

from the IIED are continuous, and thus, we should

apply a continuous trigger to that potential claim. See

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770

N.E.2d 177, 190 (Ill. 2002) (“[W]here a tort involves a

continuing or repeated injury, the limitations period

does not begin to run until the date of the last injury or

the date the tortious acts cease.”). Thus, under the appellants’ continuous-trigger theory, any injuries Starks

suffered from the IIED potentially trigger both Northfield’s and St. Paul Fire’s policies. We disagree.

The appellants conflate continuing harmful acts with

the continuing effects of one harmful act. “A continuing

violation or tort is occasioned by continuing unlawful

acts and conduct, not by continual ill effects from an

initial violation.” Feltmeier v. Feltmeier, 798 N.E.2d 75, 85

(Ill. 2003). To differentiate these concepts, Illinois courts

must determine whether a “single overt act” is the cause
Nos. 11-1215 & 11-3729 15

of subsequent damages or whether the accused continually perpetrated harmful acts. Id.

In this case, Starks’s complaint alleges potentially

outrageous conduct committed by prosecutors, police

officers, and crime-lab technicians, during his 1986

trial and the preparation for that trial. The complaint

does not allege that Starks faced outrageous conduct at

any other time. Accordingly, whether it is ultimately

determined that Starks’ IIED claim accrued when he

was indicted or when he was exonerated, his claim

still occurred outside the scope of both Northfield’s and

St. Paul Fire’s policies, and neither insurer is liable. Compare Brooks, 578 F.3d at 579 (Illinois IIED claim based

on allegations related to fairness of prosecution

accrued when plaintiff was indicted, not when he was

acquitted), with Parish v. City of Elkhart, 614 F.3d 677, 683-84

(7th Cir. 2010) (under Indiana law, IIED claim was not

completed prior to conviction and would have

impugned plaintiffs’ conviction under Heck v Humphrey,

512 U.S. 477 (1994), so claim accrued upon plaintiff’s

exoneration), and Lieberman v. Liberty Healthcare Corp.,

948 N.E.2d 1100, 1107-08 (Ill. App. Ct. 2011) (under

Illinois law, rule of Heck v. Humphrey applies to claims

for medical or legal malpractice that directly attack

legality of plaintiff’s confinement).

B. Motion to Stay Proceedings

The appellants next claim that the district court erred

by refusing to stay the declaratory judgment proceedings until Starks’s criminal case ended. The Declara-
16 Nos. 11-1215 & 11-3729

tory Judgment Act by its own terms grants district courts

discretion in determining whether to entertain such an

action. 28 U.S.C. § 2201(a) (providing that the district

court “may declare the rights and other legal relations

of any interested party seeking such declaration” (emphasis added)). Naturally, we review a denial to stay

proceedings for an abuse of discretion. See Envision

Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 985-86

(7th Cir. 2010) (“[A] district court is authorized, in the

sound exercise of its discretion, to stay or to dismiss an

action seeking a declaratory judgment.”). Here, the appellants make a handful of arguments faulting the

district court for refusing to grant its motion to stay

proceedings, none of which we find persuasive.

Principally, the appellants claim that there are too

many uncertain future events to allow the district court

to effectively adjudicate the insurers’ obligations. But, as

our preceding analysis of Starks’s complaint suggests,

we disagree. The complaint sets forth specific claims

for false arrest and imprisonment and the various

claims for malicious prosecution. Starks also intimates

that he intends to bring an IIED claim. All of those

claims have discrete trigger points that allowed the

district court to determine whether the insurers have

a duty to defend. And no future actions, save Starks’s

exoneration—which brings his claim even farther

outside of the insurers’ policies—change that analysis.

Any delay in adjudicating the insurers’ duty to defend

costs the insurers much-needed certainty. See Am. Safety,

678 F.3d at 480 (A long tail of insurance coverage affects

insurers’ ability to adjust prices to reflect previously
Nos. 11-1215 & 11-3729 17

incurred risk.). Thus, we find that the district court

rightly exercised its discretion in denying the appellants’ motion to stay.

The appellants also point out that they sent the

insurers a letter proposing that the parties file a joint

motion to stay proceedings. Apparently, this letter is

evidence of the appellants’ willingness to back away

from their immediate demand for coverage and a defense. And without a demand for coverage, the district court has no live controversy to adjudicate. The

appellants have mischaracterized the contents of the

letter. In fact, this letter never suggests that the appellants intend to withdraw their demand for coverage.

Rather, the letter simply requested that both parties file

a joint motion to stay the proceedings. As long as a live

controversy exists between the parties, the district court

has discretion to declare the rights of the parties. 28 U.S.C.

§ 2201(a); see also Cincinnati Cos. v. W. Am. Ins. Co., 701

N.E.2d 499, 504 (Ill. 1998) (“If, after being contacted,

the insured indicates that it desires the insurer’s

assistance, then the insurer’s duty to defend continues.”).

Finally, the appellants argue that the district court

must have abused its discretion because two other

courts facing the same underlying civil complaint stayed

proceedings pending the resolution of Starks’s criminal

case. At the threshold, we have already acknowledged

that district courts have wide discretion in adjudicating

declaratory judgment actions and motions to stay proceedings. It is no surprise that district judges vested

with this discretion may come to different conclusions.
18 Nos. 11-1215 & 11-3729

More than that, the two cases the appellants cite are

inapposite. For example, Judge Kocoras granted a stay

in TIG Ins. Co. v. City of Waukegan, No. 10-cv-1466 (N.D.

Ill. Apr. 28, 2010), presumably because TIG Insurance

was on risk from November 1, 1985, to November 1, 1987.

Our preceding trigger analysis suggests that Starks’s

claim for false imprisonment may have ripened in 1986,

potentially implicating TIG’s duty to defend. Similarly,

Judge Gettleman stayed the proceedings in Westport

Ins. Co. v. City of Waukegan, No. 10-cv-263 (N.D. Ill. Apr. 28,

2010). Unlike this case, the insurer there was on risk

under numerous policies stretching from November 1,

1987, to November 1, 2000. Given the greater complexity, it again is no surprise that the district court

in that case exercised its discretion to stay the proceedings. The larger point, however, is that district courts

maintain wide discretion in adjudicating these matters,

and evidence of conflicting decisions without anything

more is not evidence that a judge abused that discretion.

In sum, we find that the district court was well within

its discretion in denying the appellants’ motion to stay.

C. Declaratory Relief

Finally, the appellants claim that Judge Norgle’s declaratory relief order is overbroad because it supposedly

preempts “any and all insurance coverage.” In other

words, the appellants claim that Judge Norgle’s order

prohibits all future claims that may have arisen during

the policy period, not just those in Starks’s complaint.

This argument misunderstands Judge Norgle’s order.
Nos. 11-1215 & 11-3729 19

In his order for declaratory relief, Judge Norlge plainly

states, “Plaintiffs . . . owe no duty to defend or

indemnify Defendants . . . concerning claims made

against them in the case of Starks v. City of Waukegan,

No. 09-CV-348 (N.D. Ill. filed Jan. 20, 2009).” Instead of

limiting all potential claims, as the appellants suggest,

Judge Norgle’s order simply precludes coverage of the

claims Starks made in his 2009 civil suit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s grant of summary judgment in favor of

Northfield and St. Paul Fire.

HAMILTON, Circuit Judge, concurring. I join the

court’s opinion, which accurately applies the available

precedents of our court and the Illinois courts to the

questions before us. I write separately to make two observations: one on the handling of the Starks case

in particular and another on the handling of wrongful

conviction claims in general.

First, we have been told that two additional cases are

pending in the Northern District of Illinois concerning
20 Nos. 11-1215 & 11-3729

the City of Waukegan’s liability insurance coverage

for the wrongful conviction claims asserted by Bennie

Starks. The other cases involve other insurers with

policies covering different time periods going back more

than twenty years. The cases have been stayed pending

progress in Starks’ criminal case, but that case is now

resolved and presumably the stays will soon be lifted.

For the reasons explained in Judge Kanne’s opinion for

the court, I am confident that the two insurers in this

case are not required to defend or indemnify the city

against these claims. As long as the city has kept

liability insurance in place over the decades, though, it

is highly likely that the city is entitled to a defense and

indemnity from at least one insurer, perhaps from more

than one.

I respect the district court’s broad discretion in managing related cases, but keeping separate these cases

contesting insurance coverage for the very same underlying claims seems to be an invitation for duplicative

litigation and inconsistent results. The city is in a position that is the mirror image of an interpleader plaintiff — rather than having money or property that it

knows it should pay to someone in a group of competing claimants, the city knows that it should be paid

by someone among the various insurers. The insurers

should resolve the coverage issues among themselves.

If and when the stayed cases come back to life, I hope

the district judges will reconsider whether they should

remain separate.

Second, at a more general level, I note the complexity

and confusion of the related timing questions — questions
Nos. 11-1215 & 11-3729 21

including ripeness, statutes of limitations, and insurance

coverage — that are necessarily raised by the claims

brought by people like Starks who are wrongfully convicted and spend years in prison. Issues relating to

timing usually focus on either the beginning of the

criminal process or the end. Was the claim ripe and did

the statute-of-limitations clock begin to run at the time

of the wrongful conviction and related events? Or was

the claim ripe and did the statute-of-limitations clock

begin to run only when the wrongful conviction was

set aside?

With either answer, there can be a devil in the details.

If the focus is on the beginning of the process, do we

focus on the date of wrongful conduct by law enforcement, the date of conviction, the date of affirmance on

direct appeal, or other events? (Anyone who wants to see

how tricky even the last two possibilities can be

should study the extensive federal case law on when the

one-year clock for filing a federal habeas corpus petition

runs under 28 U.S.C. § 2244(d). See, e.g., Evans v. Chavis,

546 U.S. 189 (2006); Carey v. Saffold, 536 U.S. 214 (2002).) If

the focus is on the exoneration end of the process, do

we focus on the date that a conviction is first vacated,

the date that a court issues its mandate, or, in case of a

remand or writ of habeas corpus allowing a new trial,

when the reopened proceedings are concluded in favor

of the accused?

There is plenty of room for confusion and mutual

inconsistency in the ways courts handle these different

timing issues in these wrongful conviction cases, not to

mention malleability of arguments and outcomes. In
22 Nos. 11-1215 & 11-3729

any particular case, current Illinois law allows capable

counsel to make arguments to justify nearly any resolution that would benefit their client — whether the client

is the wrongfully convicted plaintiff, the government,

or the insurer. Only the Illinois courts can untangle

these knots to provide justice, consistency, and predictability. For example, the city here suggested at oral argument that the statute of limitations might have run

on Starks’ claims before he could even bring them. The

convoluted theory seems to be that Starks was actually

exonerated back in 2007 when the Illinois Appellate

Court issued its mandate, but that his claims did not

accrue until the criminal prosecution ended with the

2012 nolle prosequi. Under this theory, the 2012 nolle

prosequi somehow retroactively started the statute-oflimitations clock running back in 2007, effectively

barring Starks’ claims before they accrued and could be

brought. The fact that such an argument could be

made with a straight face is a symptom of a need for

clarification of Illinois law on these timing issues.

The argument also highlights a related point — the

challenge of figuring out the scope of an insurer’s duty

to defend claims in which the plaintiffs and defendants

in the underlying claims try to cope with the uncertainty. Even if the plaintiff in the underlying case brings

a claim that is clearly not yet ripe or is clearly barred by

the statute of limitations, an insurer may still have a

duty to defend its insured against the claim. See Valley

Forge Ins. Co. v. Swiderski Electronics, Inc., 860 N.E.2d 307,

315 (Ill. 2006) (insurer is obligated to defend “even if the

allegations are groundless, false, or fraudulent, and even

if only one of several theories of recovery alleged in
Nos. 11-1215 & 11-3729 23

the complaint falls within the potential coverage of

the policy”).

The choice between imposing the duty to defend on

the insurer at the time of the original prosecution

and conviction and the insurer at the time of the later exoneration is a difficult one. In National Casualty Co. v.

McFatridge, 604 F.3d 335 (7th Cir. 2010), and American

Safety Casualty Ins. Co. v. City of Waukegan, 678 F.3d 475

(7th Cir. 2012), we held that the trigger date for a

malicious prosecution claim under Illinois law was the

day of exoneration. (This case shows that “exoneration”

can be a rather slippery concept, but I will leave those

nuances aside for now.) If the trigger date is the

original conviction, then the insurer from that time faces

a decades-long liability “tail.” If the trigger date is the

day of final official exoneration, then insurability can

become a serious problem because of the prospect of a

“known loss.” The city seeking insurance may be able to

see looming liability well in advance, and an insurer

may be able to demand disclosures about pending cases.

Suppose the City of Waukegan tried to buy liability

insurance for the Starks case after the DNA tests that led

to Starks’ exoneration, or even after the March 23, 2006

appellate opinion had been issued. See People v. Starks,

850 N.E.2d 206, 211 (Ill. App. 2006). Under McFatridge

and American Safety, insurers from earlier periods

probably would be off the hook. But if there were full

disclosure of relevant facts after the DNA test or the

appellate opinion, then insurance for a case like the

Starks case could be prohibitively expensive and essentially not available at all.
24 Nos. 11-1215 & 11-3729

The insurers here have invited us to reconsider

McFatridge and National Casualty. There are good reasons

why we should not. Our opinions in those cases are

consistent with the relevant Illinois precedent, and this

is a question of state law. If the rule we adopted in those

cases needs to be reconsidered, it should be done by the

Illinois courts. If the Illinois courts do reconsider, I hope

they will do so with an eye toward the full range of

issues that can arise in these cases, including Heck v.

Humphrey, 512 U.S. 477 (1994), and Illinois’s embrace

of that rule in Lieberman v. Liberty Healthcare Corp.,

948 N.E.2d 1100, 1107-08 (Ill. App. 2011), as well as ripeness, statutes of limitations, and the insurance coverage issues.

11-21-12