Supreme Court Of Kentucky Rules On When Malicious Prosecution Offense Takes Place

Courts often grapple with the timing of malicious prosecution claims in the context of triggering Coverage B under a liability policy when an exoneration takes place years or decades after the initial prosecution takes place. The Supreme Court of Kentucky issued a ruling on December 18, 2025 addressing this issue and holding that the insurer did not owe coverage under a liability policy because its policies were issued nearly a decade after the claimant was criminally charged. Coleman v. Westport Ins. Co., — S.W.3d –, 2025 WL 3768513 (Ky. Dec. 25, 2025). In so ruling, the court rejected arguments that the malicious prosecution claim was an ongoing offense that ran through the entirety of his incarceration.

The coverage dispute stemmed from a lawsuit filed against the City of Newport ("City") and its police officers under 42 U.S.C. § 1983, alleging malicious prosecution and various civil rights violations by a claimant who had spent 28 years in prison after being wrongfully convicted of a 1987 murder. The conviction occurred in 1988. DNA evidence exonerated him in 2015. The City requested defense and indemnity from its past insurers, including Westport Insurance Company ("Westport"), which had issued three consecutive occurrence-based law enforcement liability policies from July 1998 to July 2000, nearly a decade after the 1988 conviction. The policies provided coverage for a "personal injury," which included malicious prosecution, that occurred during the policy period. The term "occurrence" was defined as "an offense that results in 'personal injury.'" Westport agreed to defend under a reservation of rights but filed a DJ action asserting that the alleged malicious prosecution did not occur during its policy period from 1997 to 2000, but rather nearly a decade earlier, when the claimant was initially charged in 1988. The trial court ruled that no coverage was owed, and the state's intermediate court of appeals affirmed. Claimant's estate appealed.

On appeal, the Supreme Court of Kentucky analyzed whether coverage for malicious prosecution occurs at the time that charges are filed or at exoneration. The court rejected the claimant's argument that the ongoing nature of his incarceration triggered coverage during Westport's policy periods. Instead, the court followed the majority rulings that have held that the tort occurs when the underlying criminal charges are filed. The Court noted that it agreed with the Court of Appeals that:

[I]n Kentucky, "[f]or purposes of triggering insurance coverage ... the time of the occurrence ... is when the complaining party was actually damaged or injured and not the time when the wrongful act was committed." For claims of malicious prosecution, "[t]he wrong and damage are practically contemporaneous." Therefore, ... for insurance purposes, malicious prosecution occurs "at the time the underlying charges are filed."

The Court ruled that Virgil alleged continuous damages—all stemming from the original prosecution. Because the underlying charges were filed against Virgil in 1987, the personal injury occurred, for insurance purposes, more than a decade before the onset of Westport's coverage period. Thus, the Court held that the Westport policy was not triggered by the underlying claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.