Kentucky's high court backs Westport Insurance in wrongful conviction coverage dispute, ruling occurrence-based law enforcement liability policies trigger when charges are filed, not during incarceration.
In an opinion rendered December 18, 2025, the Supreme Court of Kentucky affirmed that Westport has no duty to defend or indemnify Newport in a federal civil rights case brought by the estate of William Virgil, who spent twenty-eight years in prison before DNA testing excluded him as the perpetrator and a Campbell County Grand Jury declined to reindict.
The case began with a 1987 murder. Retha Welch was killed that year. In 1988, Virgil was charged with and convicted of her murder and sentenced to seventy years in prison. According to his later civil complaint, Newport police officers allegedly withheld exculpatory evidence and coerced a jailhouse informant to make fabricated statements implicating him. He remained incarcerated for twenty-eight years until DNA testing of Welch's rape kit excluded him. He was released in 2015, and no new indictment followed.
In 2016, Virgil filed a lawsuit in federal court under 42 U.S.C. § 1983 against the City of Newport and past and present Newport Police Department employees. He alleged violations of his constitutional right to a fair trial, malicious prosecution, fabrication of false evidence, supervisory liability and negligent supervision, failure to intervene, conspiracy to deprive him of his constitutional rights, and intentional infliction of emotional distress. He claimed damages for pain and suffering during incarceration, disadvantages faced after incarceration, and harms "including but not limited to physical harm, mental suffering, and loss of a normal life" resulting from Newport's misconduct.
Newport tendered the suit to all insurers that had provided coverage from 1987 to 2015. Westport, as successor to Coregis Insurance Company, insured Newport from July 1, 1997, to July 1, 2000, under three consecutive one-year policies, each with a law enforcement liability endorsement.
Westport denied coverage on the basis that "no triggering event occurred during the Westport policy period," but ultimately chose to defend Newport under a reservation of rights. In 2020, it filed an action in Campbell Circuit Court seeking a declaration that it had no duty to defend or indemnify because Virgil's lawsuit did not allege any bodily or personal injury occurring during its 1997–2000 policy periods. The circuit court granted summary judgment for Westport.
Newport and Virgil appealed. Virgil died before judgment, and Jerel Colemon, as administrator and personal representative of the Estate of William Virgil, was substituted. While the appeal was pending, Newport and Colemon settled the federal lawsuit. Under the settlement, Newport assigned all rights to any insurance proceeds and all causes of action against Westport to the estate. The Court of Appeals affirmed, and Colemon sought discretionary review, which the Supreme Court granted.
For insurance professionals, the heart of the ruling is how Kentucky's high court treated the wording of Westport's occurrence-based law enforcement liability coverage. The 1997–1998 and 1998–1999 endorsements obligated Westport to pay damages because of "bodily injury," "property damage," or "personal injury," and to defend suits seeking those damages, but only if the bodily injury, property damage, or personal injury "occurs during the policy period." "Occurrence" was defined, in part, as an offense that results in personal injury. "Personal injury" was defined as injury, other than bodily injury, arising out of offenses including malicious prosecution and violation of civil rights.
The 1999–2000 policy used slightly different wording but again limited coverage to bodily injury, property damage, or personal injury that occurs during the policy period, and defined personal injury to include malicious prosecution and deprivation of rights secured by the United States Constitution.
The Supreme Court treated these as standard occurrence-based forms: they respond to incidents that occur while the policy is in force, regardless of when a claim is brought. That meant Virgil's personal injury had to occur between July 1, 1997, and July 1, 2000, to trigger Westport's coverage.
The key question was when malicious prosecution "occurs" under such wording. Colemon argued that Virgil's injuries were ongoing and that his continuing incarceration during the Westport policy periods should trigger coverage. He relied on St. Paul Guardian Ins. Co. v. City of Newport, a Sixth Circuit decision involving different policies, where ongoing wrongful imprisonment was treated as producing covered injuries during later policy years.
The Kentucky Supreme Court took a different path. It emphasized that, under Westport's language, coverage is triggered by a personal injury that occurs during the policy period. Because "occurrence" includes an offense that results in personal injury, and malicious prosecution is one of the listed offenses, the court concluded that "the malicious prosecution is the personal injury" for insurance purposes.
On timing, the court looked to the Eighth Circuit's decision in Genesis Ins. Co. v. City of Council Bluffs, which interpreted similar law enforcement liability wording and held that malicious prosecution occurs, for insurance purposes, at the time criminal charges are filed. The Kentucky court tied that approach to its own rule that the time of an occurrence for triggering coverage is when the complaining party is actually damaged or injured, not when the wrongful act is committed. For malicious prosecution, it agreed, those are "practically contemporaneous."
Because charges against Virgil were filed in 1987, the court held that the personal injury from malicious prosecution occurred more than a decade before Westport's coverage began. It further concluded that the damages Virgil claimed – pain and suffering during incarceration, disadvantages after release, and loss of a normal life – were continuous consequences of that original malicious prosecution, not distinct, new injuries arising between 1997 and 2000.
The justices rejected an attempt to characterize the policy as ambiguous and to construe it in favor of coverage, finding the relevant terms clearly defined and, as applied here, unambiguous.
The decision cements a clear rule under Kentucky law: under this common law enforcement liability wording, malicious prosecution is the insured "personal injury," and it occurs when charges are filed. Without distinct, later injuries alleged during the policy period, an occurrence-based law enforcement liability policy like Westport's will not be triggered by long-running wrongful conviction claims.
