Their estates filed a civil rights lawsuit against the county, and it sought coverage under law enforcement liability insurance policies it previously had obtained.

The U.S. District Court for the Southern District of Mississippi decided that Travelers Indemnity Company (under policies effective from February 2005 through February 2011) and Scottsdale Insurance Company (under a policy effective from November 1985 through November 1986) had to defend the county, and the insurers appealed to the Fifth Circuit.

The Fifth Circuit's Decision

The circuit court affirmed.

In its decision, the Fifth Circuit first ruled that there was coverage under the Travelers' policies, finding that Bivens and Dixon had suffered injuries between 2005 and 2011 that triggered a duty to defend even though the allegedly wrongful causal acts had occurred decades prior.

The circuit court said that Bivens' and Dixon's continued imprisonment, alone, did not trigger coverage and that because the inception of legal process predated the Travelers policy periods by decades, its policies did not cover injuries for a claim of false arrest or imprisonment.

The Fifth Circuit reasoned, however, that the estates alleged that Bivens and Dixon had suffered “numerous, independent harms between 2005 and 2011,” and it found that but for Forrest County's alleged wrongful acts – coerced confessions, fabricated evidence, and suppressed evidence – Bivens and Dixon would have been free men and would not have suffered these physical and mental injuries.

The circuit court then ruled that because the complaint alleged several distinct injuries occurring during the policy periods, Travelers had a duty to defend the county.

The Fifth Circuit next found coverage under the Scottsdale policy. The circuit court ruled that the Scottsdale policy was “ambiguous” on the question of whether injuries suffered in prison during the policy period triggered a duty to defend even though pre-policy acts had caused those injuries. It ruled that the Scottsdale policy provided the same coverage as the Travelers' policies, and because the estates alleged that covered bodily injuries occurred during the policy period, Scottsdale had to defend the county, too.

The circuit court concluded that although Scottsdale's duty to defend was not triggered by the ongoing imprisonment, it was triggered by the discrete bodily injuries that Bivens, Dixon, and Ruffin had suffered as a result of the county's allegedly wrongful acts. 

The case is Travelers Indemnity Co. v. Mitchell, No. 17-60291 (5th Cir. May 29, 2019). Attorneys involved include: For TRAVELERS INDEMNITY COMPANY, TRAVELERS INDEMNITY COMPANY OF AMERICA, UNITED STATES FIDELITY & GUARANTY COMPANY, ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiffs – Appellants: Dennis Michael Dolan, Litchfield Cavo, L.L.P., Chicago, IL. For SCOTTSDALE INSURANCE COMPANY, Counter Defendant – Appellant: John Donelson Brady, Esq., Mitchell McNutt & Sams, Columbus, MS; Patrick Benjamin Omilian, Counsel, Goldberg Segalla, L.L.P., Buffalo, NY; Colin Brian Willmott, Goldberg Segalla, L.L.P., Chicago, IL. For ETHEL MITCHELL, Executrix of the Estate of Phillip Bivens, ESTATE OF LARRY RUFFIN, ESTATE OF BOBBY RAY DIXON, LATURAS SMITH, CARRIE STRONG, Defendant-Counter Plaintiffs – Appellees: William G. Beck, Counsel, Michael Jay Abrams, Alexander Thomas Brown, Lathrop & Gage, L.L.P., Kansas City, MO; Anna Benvenutti Hoffmann, Esq., Neufeld, Scheck & Brustin, L.L.P., New York, NY.