Date: 09-18-2018

Case Style:

Case Number: 17-1104

Judge: Smith

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of Nebraska (Douglas County)

Plaintiff's Attorney: Locke Bowman, Bob Mullin, Steve Drizin, Julia T. Rickert, David M Shapiro

Defendant's Attorney: Stephen L. Ahl, Krista M. Carlson and John D. Hackett for St. Paul Fire and Marine Insurance Company

Katherine J. Spohn, Stephanie A. Caldwell, Ryan S. Post, James D. Smith and David Lopez for Charles O'Callaghan and William Lambert

Diane M. Carlson and Timothy K. Dolan for Dougals County and Tim Dunning

Kimberly K. Sturzenegger, Richard L. Boucher and Jennifer M. Tomka for Cass County, Earl Schenck and Sandra Weyers

Description: St. Paul Fire and Marine Insurance Co. (“St. Paul Insurance”) appeals the
district court’s grant of summary judgment to Matthew Livers and Nicholas Sampson.
Chief Judge Smith and Judge Colloton file this * opinion pursuant to 8th Cir.
Rule 47E.
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The court concluded that St. Paul Insurance had a duty under its coverage policy to
indemnify David Kofoed for intentional acts Kofoed committed against Livers and
Sampson during his employment as a law enforcement officer for Douglas County,
Nebraska. St. Paul Insurance contends that its own policy—with some narrow
exceptions, including for malicious prosecution—bars indemnification of intentional
criminal acts. We agree with St. Paul Insurance that its policy expressly precludes
indemnification of intentional criminal acts and that Kofoed’s act of evidence
tampering does not fall within the malicious prosecution exception. We reverse.
I. Background
Commander David Kofoed of the Douglas County Crime Scene Investigation
Unit tampered with evidence while investigating the April 17, 2006 murders of
Sharmon and Wayne Stock. Murder charges—driven in part by the tampered
evidence—were filed against cousins Matthew Livers and Nicholas Sampson, but the
charges eventually were dropped. See Livers v. Schenck, 700 F.3d 340 (8th Cir. 2012)
(setting forth the facts of the case).
As relevant here, Livers and Sampson filed 42 U.S.C. § 1983 suits against,
among others, Kofoed, the Cass County Sheriff’s Office, the Nebraska State Patrol,
and the Douglas County Sheriff’s Office. They alleged numerous constitutional
violations, including: conspiring to coerce Livers’s confession; planting false
evidence; concealing exculpatory evidence; making arrests without probable cause;
failing to intervene; failing to train; and violating their due process rights under the
Fifth and Fourteenth Amendments. Initially, Douglas County, Kofoed’s employer,
retained outside counsel to defend Kofoed. While the civil case proceeded, Kofoed
was charged criminally, tried, and convicted in Nebraska state court for evidence
tampering in violation of Neb. Rev. Stat. § 28-922(1)(b). Subsequent to his
conviction, Douglas County terminated Kofoed’s employment and stopped paying for
his legal expenses. Kofoed’s counsel withdrew, and Kofoed proceeded pro se.
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The defendants, minus Kofoed, moved in the district court for summary
judgment seeking qualified immunity. The district court denied the motions, finding
genuine disputes of material fact. We affirmed the district court’s denial of qualified
immunity on the claims of fabrication of evidence, false arrest, coerced confession,
and conspiracy to violate Livers’s and Sampson’s civil rights. Livers, 700 F.3d at 362.
We reversed the district court’s denial of qualified immunity on Livers’s and
Sampson’s due process Fifth Amendment claims, as well as the alleged failures to
disclose exculpatory evidence and to intervene. See id. The defendants, again without
Kofoed, then settled with Livers and Sampson, leaving Kofoed the sole remaining
defendant in the case.
Kofoed took no action in the suits as a pro se defendant. Although the court
notified him of the trial date in Livers’s case, he failed to appear. He also did not file
an answer to Livers’s amended complaint. He likewise was absent at the pretrial
conference. The district court then entered default judgment against Kofoed in
Livers’s case. Sampson then moved for summary judgment against Kofoed, and the
district court granted the motion in favor of Sampson, noting that “[t]he
uncontroverted evidence submitted by [Sampson] establishes that Kofoed planted
evidence in the homicide investigation at issue and conspired with others to fabricate
evidence and to falsely implicate [Sampson] in the murders.” Sampson v. Kofoed, No.
8:07-cv-00155-JFB-MDN, 2014 WL 250515, at *1 (D. Neb. Jan. 21, 2014) (citation
omitted). The district court entered judgment against Kofoed in Sampson’s case. The
court awarded Sampson $965,000 in compensatory damages, $965,000 in punitive
damages, $129,041.09 in costs, and $199,675 in attorney’s fees. It awarded Livers
$1,650,000 in compensatory damages, $1,650,000 in punitive damages, $52,981.32
in costs, and $999,656.50 in attorney’s fees. Kofoed did not appeal the judgment.
Livers and Sampson then initiated garnishment proceedings against St. Paul
Insurance based on Douglas County’s insurance policy to protect its law enforcement
officers from damage claims filed against them for tortious conduct on the job. St.
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Paul Insurance described the policy as covering “Public Sector Services.” Appellant’s
Add. at 81 (bold and all caps omitted). The policy indemnifies protected persons
against damages and injuries that: “result[] from law enforcement activities or
operations by or for [the covered person]; happen[] while [the] agreement is in effect;
and [are] caused by a wrongful act that is committed while conducting law
enforcement activities or operations.” Id. at 71 (bullet points omitted). The wrongful
acts include “[f]alse arrest,” “[m]alicious prosecution,” and “[v]iolation of civil rights
protected under any federal, state, or local law.” Id. at 72. Notably, the policy
expressly excludes “[c]riminal, dishonest, fraudulent, or malicious acts.” Id. at 71.
Livers and Sampson moved for partial summary judgment, arguing that St. Paul
Insurance had a duty to indemnify Kofoed under its policy with Douglas County. St.
Paul Insurance cross-moved for summary judgment, asserting that it had no duty to
indemnify Kofoed’s criminal act. It also argued, in the alternative, that even if it had
a duty to indemnify, that duty was not yet triggered because Douglas County had not
exhausted the policy’s $250,000 self-insured retention (SIR) payment amount, as
required. The district court granted partial summary judgment to Livers and Sampson.
The court concluded that Kofoed’s act, though criminal, is covered under St. Paul
Insurance’s “malicious prosecution” exception; the insurance company thus had a
duty to indemnify Kofoed for both compensatory and punitive damages, as well as
costs and attorney’s fees. Further, the court found that Douglas County did not have
to exhaust the $250,000 SIR payment. The district court then ordered St. Paul
Insurance to pay $1,643,500 to Sampson and $3,356,500 to Livers—totaling
$5,000,000, the policy cap—but denied prejudgment interests in the damages award.
II. Discussion
On appeal, St. Paul Insurance reiterates that it owed no duty to indemnify
Kofoed. Alternatively, it argues that even if it had a duty to indemnify, that duty had
not been triggered because Douglas County had not exhausted the policy’s SIR
payment requirement. St. Paul Insurance also challenges the punitive damages award.
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Livers and Sampson cross-appeal, arguing that they are entitled to prejudgment
interest.
A. Duty to Indemnify
We first address the central question on appeal—whether St. Paul Insurance
had a duty to indemnify Kofoed. The company asserts that the court erred in holding
that Kofoed’s conduct fell within the malicious prosecution exception to the
insurance coverage exclusion. In response, Livers 1 and Sampson contend that the
policy’s exclusion-and-exceptions language is ambiguous and illusory and thus
cannot benefit St. Paul Insurance. We review de novo the district court’s grant of
summary judgment and its interpretation of Nebraska law. See W3i Mobile, LLC v.
Westchester Fire Ins. Co., 632 F.3d 432, 436 (8th Cir. 2011) (citing Babinski v. Am.
Family Ins. Grp., 569 F.3d 349, 351 (8th Cir. 2009)).
1. Illusory Coverage
Livers and Sampson say that St. Paul Insurance’s coverage is illusory because
while the policy purports to provide an exception to wrongful acts such as false arrest,
false imprisonment, and civil rights violations, the policy excludes criminal,
dishonest, fraudulent, or malicious acts or omissions. They say that “[i]t would be
impossible for a law enforcement officer to commit wrongful acts of false arrest,
detention and imprisonment, malicious prosecution and civil rights violations,
without simultaneously committing either criminal, dishonest, fraudulent or malicious
acts.” Appellees’ Br. at 32.
We disagree. St. Paul Insurance’s policy coverage is not illusory. It excludes
coverage for acts with specific intent, but it covers general intent acts. Neither false
1St. Paul Insurance also argues that Nebraska public policy prohibits coverage
of intentional acts. Because we hold that St. Paul Insurance has no duty to indemnify
Kofoed, we need not resolve the question of whether Nebraska public policy
contravenes coverage of intentional acts.
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arrest nor false imprisonment requires a specific intent. See Schertz v. Waupaca Cty.,
875 F.2d 578, 584 (7th Cir. 1989) (explaining that “intent is not a material issue” in
cases of false arrest or imprisonment.); State v. Miller, 341 N.W.2d 915, 917 (Neb.
1983) (“[S]pecific intention . . . is not an element of false imprisonment.”). Likewise,
a number of civil rights violations do not require proof of specific intent, or intent at
all. See Graham v. Connor, 490 U.S. 386, 397 (1989) (“As in other Fourth
Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force
case is an objective one: the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” (citations omitted)). Finally, while the
policy excludes criminal, dishonest, fraudulent, or malicious acts, it also expressly
states that it will not “apply [the] exclusion to personal injury caused by malicious
prosecution.” Appellant’s Add. at 77. Thus, the policy excludes many specific intent
acts, but it makes a specific exception for malicious prosecution. The policy also
covers general intent acts or omissions, or conduct where intent is not at issue. The
policy can provide what it promises and is thus not illusory.
2. Malicious Prosecution Exception to Coverage Exclusion
St. Paul Insurance asserts that its policy with Douglas County expressly
excludes intentional acts. The company acknowledges that the policy does provide
some exceptions to the exclusions to cover certain intentional acts such as malicious
prosecution. Nevertheless, it contends that the district court erred when it concluded
that Kofoed’s evidence-tampering crime is analogous to civil malicious prosecution.
We agree.
“The interpretation of an insurance policy is a question of law . . . .”
Dutton-Lainson Co. v. Cont’l Ins. Co., 716 N.W.2d 87, 96 (Neb. 2006) (citing Molina
v. Am. Alternative Ins. Corp., 699 N.W.2d 415 (Neb. 2005)). When an insurer denies
coverage, the plaintiff must prove coverage. See Farm Bureau Ins. Co. v. Martinsen,
659 N.W.2d 823, 827 (Neb. 2003) (citing Coppi v. West Am. Ins. Co., 524 N.W.2d
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804 (Neb. 1994); Swedberg v. Battle Creek Mut. Ins. Co., 356 N.W.2d 456 (Neb.
1984)). However, “the burden to prove that an exclusionary clause applies rests upon
the insurer.” Farm Bureau Ins. Co. v. Witte, 594 N.W.2d 574, 582 (Neb. 1999) (citing
Econ. Preferred Ins. Co. v. Mass, 497 N.W.2d 6, 8 (Neb. 1993)). The burden then
shifts back to the plaintiff to show that an exception to the insurance exclusion
applies. Dutton-Lainson Co., 716 N.W.2d at 96 (citations omitted).

Here, the district court agreed with St. Paul Insurance that its policy language
expressly excludes criminal, dishonest, and fraudulent acts. But the court then
concluded that the malicious prosecution exception to the exclusion applied, because
the crime of evidence tampering is analogous to the tort of malicious prosecution.
Alternatively, the district court and Livers and Sampson say that Kofoed’s evidence
tampering is part of a malicious prosecution civil conspiracy between all the
defendants; St. Paul Insurance, therefore, must indemnify Kofoed under its malicious
prosecution exception to the policy exclusion. Livers and Sampson also say that the
policy’s exclusion and exception clauses are hopelessly contradictory. We disagree.
B. Evidence Tampering as Analogous to Malicious Prosecution

Under Nebraska law, a person tampers with physical evidence if he, “believing
that an official proceeding is pending or about to be instituted and acting without
legal right or authority, . . . knowingly makes, presents, or offers any false physical
evidence with intent that it be introduced in the pending or prospective official
proceeding.” Neb. Rev. Stat. § 28-922(1)(b). In contrast, the tort of malicious
prosecution comprises these conjunctive elements: “(1) the commencement or
prosecution of the proceeding against the plaintiff, (2) its legal causation by the
present defendant, (3) its bona fide termination in favor of the plaintiff, (4) the
absence of probable cause for such proceeding, (5) the presence of malice therein, and
(6) damages.” McKinney v. Okoye, 842 N.W.2d 581, 591 (Neb. 2014) (citations
omitted).
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Criminal evidence tampering and civil malicious prosecution differ sufficiently
such that one is not analogous to the other. A person who tampers with evidence does
so either to undermine or to bolster a prosecution. A malicious prosecution
purposefully misuses the government’s prosecutorial power to start or sustain
criminal charges against a person without probable cause. It does not seek to
undermine them. The district court acknowledged this critical difference, but it
incorrectly concluded that malicious prosecution is the tort analog of the crime of
evidence tampering. The court reasoned that people are more likely to tamper with
evidence to bolster a flagging prosecution and noted that Kofoed’s conduct harmed
Livers and Sampson. While both acts are dishonest and purposeful, they are not
interchangeable. A person may commit the tort of malicious prosecution without
tampering with evidence in violation of the law. Likewise, a person tampering with
evidence may not satisfy the elements of malicious prosecution.

Finally, St. Paul Insurance’s policy with Douglas County undeniably covers
malicious prosecution. But, it also expressly excludes all criminal acts. We hold that
St. Paul Insurance’s malicious prosecution exception for intentional acts did not
include the crime of evidence tampering. See Farm Bureau Ins. Co., 594 N.W.2d at
582 (“[W]here the event for which an insured seeks coverage is plainly outside the
scope of the coverage encompassed in the policy according to a plain reading of its
terms, an insurer may not be obligated to provide coverage to the insured.” (citations
omitted)).
C. Malicious Prosecution Conspiracy
Next, Livers and Sampson contend that even if Kofoed’s evidence tampering
is not malicious prosecution by itself, Kofoed’s conspiracy with the other defendants
to deprive Livers’s and Sampson’s civil rights included malicious prosecution. We
disagree with this reasoning as well.
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The district court and Livers and Sampson rely in part on our previous opinion,
where we held that “Livers and Sampson have presented sufficient allegations and
evidence of a violation of a clearly established right to survive . . . summary judgment
on [the] conspiracy claims.” Livers, 700 F.3d at 362. However, while we held there
was sufficient evidence for a reasonable jury to find a conspiracy, our holding did not
reach the issue of malicious prosecution. Rather, we affirmed the district court’s
denial of qualified immunity to the defendants because there was “a question of fact
for the jury” to decide whether the other defendants had knowledge of—or were
complicit in—Kofoed’s actions. Id. at 355.
That question of fact remained untried. Kofoed defaulted, and the other
defendants settled with Livers and Sampson. Although the district court entered
default judgment against Kofoed, St. Paul Insurance asserts that the judgment did not
include malicious prosecution because neither Livers nor Sampson raised a claim of
malicious prosecution in their complaints. St. Paul Insurance is correct. “Entry of
default judgment does not preclude a party from challenging the sufficiency of the
complaint on appeal.” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010)
(citations omitted). “A default judgment is unassailable on the merits but only so far
as it is supported by well-pleaded allegations, assumed to be true.” Nishimatsu
Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (citing
Thomson v. Wooster, 114 U.S. 104, 113 (1885)); see also Remexcel Managerial
Consultants, Inc. v. Arlequin, 583 F.3d 45, 53 (1st Cir. 2009) (“[I]n the normal case
after the entry of default a ‘defendant may still contest a claim on the ground that the
complaint does not allege facts that add up to the elements of a cause of action.’”
(first quoting Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001),
then citing Gowen v. F/V Quality One, 244 F.3d 64, 67 n.2 (1st Cir. 2001))).
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Here, Livers made no mention of malicious prosecution in his five-count
complaint. Sampson included “Malicious Prosecution” 2 in the title of Count I of his
first amended complaint. But, other than the conclusory allegation that Kofoed and
the other defendants procured false evidence, the complaint pleaded no facts to
support that claim. Thus, neither Livers nor Sampson pleaded malicious prosecution
as a cause of action. A district court may not enter default judgment based on a
complaint not well-pleaded. See Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1245 (11th Cir. 2015) (“[W]hile a defaulted defendant is deemed to admit the
plaintiff’s well-pleaded allegations of fact, he is not held to admit facts that are not
well-pleaded or to admit conclusions of law.” (alteration in original) (quoting Cotton
v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005))).
We thus hold that because Livers and Sampson failed to plead sufficiently the
malicious prosecution cause of action in their complaints, the district court’s entry of
default judgment against Kofoed did not include malicious prosecution.3 And,
because Kofoed’s judgment did not include malicious prosecution—the sole
exception to the excluded acts available to Kofoed under St. Paul Insurance’s
policy—Livers and Sampson failed in their burden to show that an exception to the
insurance exclusion applied. St. Paul Insurance thus has no duty to indemnify
Kofoed. We thus need not address whether a valid default judgment against Kofoed
would be binding on St. Paul as the insurer.
2Count I: Due Process–Coercive Interrogation and Fabrication of Evidence;
Count II: False Arrest; Count III: Due Process—Concealment of Exculpatory
Evidence; Count IV: Conspiracy; and Count V: Failure to Intervene. See Second Am.
Compl., Jury Demand, and Designation of Place of Trial at 24–30, Livers v. Schenck
et al., No. 8:08-cv-00107-JFB-MDN (D. Neb. Apr. 2, 2010), ECF No. 238.
3Our holding that St. Paul Insurance has no duty to indemnify Kofoed renders
all other issues in this appeal moot.

Outcome: For the reasons stated above, we reverse the district court’s judgment and
remand to that court for further action consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: