O’Brien And Bokeno’s Amicus Brief Bolsters Another Landmark Kentucky Supreme Court Decision On Interpretation Of Insurance Policies

Edward M. O'Brien (Partner-Louisville, KY) and Andrew-John R. Bokeno (Associate-Louisville, KY) were once again enlisted by the Kentucky Defense Counsel, Inc., Kentucky's largest association of civil defense attorneys, to file an amicus brief on its behalf in a case pending before the Kentucky Supreme Court. The brief advocated that the trial court and Court of Appeals correctly held that, in the context of malicious prosecution claims, an occurrence-based law enforcement liability policy is not triggered by harm arising from pre-policy conduct that merely continues into the policy period. Relying on fundamental tenets of Kentucky contract law and interpretation, which constitute the prevailing view in most other jurisdictions, the brief argued that no "occurrence" – and thus no coverage obligation – exists in the policy language where a claimant alleges malicious prosecution before the policy period began, even if incarceration continued during the policy term. The Kentucky Supreme Court affirmed the lower courts' rulings, holding that a malicious prosecution occurs at the time the underlying charges are filed for purposes of determining a qualifying "occurrence" under a law enforcement liability policy. Adopting many of the arguments advanced in Eddie and AJ's briefing, the Supreme Court's decision reinforces the importance of adhering to fundamental principles of contract law and resolves a significant issue that has divided multiple state and federal courts.