Sampson v. Lambert
| Decision Date | 11 September 2018 |
| Docket Number | No. 17-1106, No. 17-1114, No. 17-1117,No. 17-1104,17-1104 |
| Citation | 903 F.3d 798 |
| Parties | Nicholas SAMPSON, Plaintiff-Appellee v. Investigator William LAMBERT, in his official and individual capacities; Investigator Charles O’Callaghan, in his official and individual capacities; Sergeant Sandy Weyers, in her official and individual capacities; Cass County Sheriff’s Office, a Nebraska political subdivision; Does 1-8, in their official and individual capacities; Investigator Earl Schenck, in his official and individual capacities; Douglas County Sheriff’s Office, Defendants David W. Kofoed, in his official and individual capacities, Defendant-Appellee v. St. Paul Fire and Marine Insurance Company, also known as The Saint Paul Travelers Companies, Inc., Garnishee-Appellant Matthew Livers, Plaintiff-Appellee v. Earl Schenck, Cass County Sheriff’s Investigator; William Lambert, Nebraska State Patrol Investigator; Charles O’Callaghan, Nebraska State Patrol Investigator; Sandra Weyers, Cass County Sheriff’s Sergeant; County of Cass, Nebraska, Defendants David Kofoed, Commander of the Douglas County Sheriff’s Office Crime Scene Investigation Division, Defendant-Appellee Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants v. St. Paul Fire and Marine Insurance Company, Garnishee-Appellant Nicholas Sampson, Plaintiff-Appellant v. Investigator William Lambert, in his official and individual capacities; Investigator Charles O’Callaghan, in his official and individual capacities; Sergeant Sandy Weyers, in her official and individual capacities; Cass County Sheriff’s Office, a Nebraska political subdivision; Does 1-8, in their official and individual capacities; Investigator Earl Schenck, in his official and individual capacities; Douglas County Sheriff’s Office, Defendants David W. Kofoed, in his official and individual capacities, Defendant-Appellee v. St. Paul Fire and Marine Insurance Company, also known as The Saint Paul Travelers Companies, Inc., Garnishee-Appellee Matthew Livers, Plaintiff-Appellant v. Earl Schenck, Cass County Sheriff’s Investigator; William Lambert, Nebraska State Patrol Investigator; Charles O’Callaghan, Nebraska State Patrol Investigator; Sandra Weyers, Cass County Sheriff’s Sergeant; County of Cass, Nebraska, Defendants David Kofoed, Commander of the Douglas County Sheriff’s Office Crime Scene Investigation Division, Defendant-Appellee Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants v. St. Paul Fire and Marine Insurance Company, also known as The Saint Paul Travelers Companies, Inc., Garnishee-Appellee |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of and appeared on the brief of appellant/cross-appellee St. Paul Fire and Marine Insurance Company was Aaron Daniel Van Oort, of Minneapolis, MN. The following attorney(s) appeared on the appellant/cross appellee brief; Jeffrey Justman, of Minneapolis, MN., Jean Mary Golden, of Chicago, IL., John David Hackett, of Chicago, IL.
Counsel who presented argument on behalf of and appeared on the brief of the appellee/cross-appellants Nicholas Sampson and Matthew Livers was Maren Lynn Chaloupka, of Scottsbluff, NE. The following attorney(s) appeared on the appellee/cross-appellants brief; Robert W. Mullin of Omaha, NE.
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
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. 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.
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) ().
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.
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. Paul Insurance described the policy as covering "Public Sector Services." Appellant’s Add. at 81 (). 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.
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...
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