Until recently, Georgia has had no case law addressing insurance coverage trigger for a malicious prosecution claim. But in 2016, the Georgia Court of Appeals finally rendered an opinion addressing this specific issue, with a twist in that the claimant was arrested during the policy period but was charged and prosecuted after the policy expired.

In Zook v. Arch Specialty Ins. Co., 784 S.E.2d 119 (2016), the claimant was arrested on May 21, 2009 after an incident at the insured’s nightclub. The claimant was charged with simple battery on March 1, 2010 and was prosecuted thereafter. After the jury found the claimant not guilty of simple battery, he commenced a lawsuit against the nightclub and its employees for false imprisonment, battery, negligence, malicious prosecution and malicious arrest. While that action was pending, the claimant filed a declaratory judgment action against the same defendants and Arch Specialty Insurance Company (“Arch”), which issued a CGL policy (“Policy”) to the nightclub from June 27, 2008 to June 27, 2009. The policy provided coverage for injury arising out of malicious prosecution if the offense was committed during the policy period. Arch took the position that the “offense” took place on March 1, 2010, when the claimant was charged with the crime for which he was prosecuted (simple battery). Because the Policy expired on June 27, 2009, Arch argued that no offense took place during the policy period. The trial court agreed and granted summary judgment to Arch.

The Georgia Court of Appeals, however, disagreed. The Court noted that Georgia appellate courts had not yet addressed the issue of when a malicious prosecution claim arises for purposes of triggering insurance coverage. The Court of Appeals acknowledged that the majority of other jurisdictions have held that “coverage is trigged when the insured sets in motion the legal machinery of the state.” Id. at 674. However, the Court disagreed with Arch’s interpretation of the majority holding because Arch focused on when the claimant was charged and relied on case law that dealt with a scenario in which the claimant was arrested and charged on the same date.

The Georgia Court of Appeals held that in this case, the arrest is the “bad act” of the insured that set the legal machinery of the state in action. Id. at 675. In other words, the arrest was the “offense” that invoked the judicial process against the claimant, and the arrest took place during the Arch policy period. The Court held,

From the standpoint of a reasonable person in the position of the insured, policy coverage for injury arising from a malicious prosecution occurring during the policy period exists if the insured’s conduct in instituting such a prosecution took place during the covered period. For the foregoing reasons, we adopt the majority rule that when the contract does not specify, insurance coverage is triggered on a potential claim for malicious prosecution when the insured sets in motion the legal machinery of the state.

Id. at 675-6.

The analysis pertaining to the trigger of coverage for wrongful incarceration and malicious prosecution cases are becoming more intricate and detail-oriented as the courts throughout the country are exposed to different fact patterns. To the extent that the claimant is arrested and charged during different policy periods, it appears that the first event of the arrest will be considered as the event that triggers coverage.