5th Circuit adds to Lathrop’s list of wrongful-conviction recoveries

Attorneys from Lathrop Gage won an important victory in the 5th U.S. Circuit Court of Appeals on behalf of the families of three wrongfully convicted men who spent decades behind bars in Mississippi.

“It’s healthy for our country and that community to have a reckoning and put that painful chapter behind them,” said Mike Abrams, a partner in Lathrop Gage’s insurance recovery practice in Kansas City.

In a ruling on May 29, the 5th Circuit panel said two insurance companies had a duty to defend Forrest County, Mississippi, in the civil-rights lawsuit brought by the survivors of Phillip Bivens, Bobby Ray Dixon, and Larry Ruffin. The three men spent a collective 83 years in prison for the 1979 rape and murder of Eva Gail Patterson.

Bivens and Dixon’s convictions were set aside in 2010 when DNA evidence pointed to another culprit. Dixon died soon after his release from prison, and Bivens died in 2014. Ruffin died in prison in 2002 but was exonerated posthumously in 2011.

The three men’s families sued Forrest County, the city of Hattiesburg and several law enforcement agencies and officers. The suit alleged the defendants beat the men to obtain confessions, fabricated evidence, withheld exculpatory evidence and prosecuted them without probable cause.

The underlying case settled in 2016 for $16.5 million. According to an account in the Jackson (Mississippi) Clarion Ledger newspaper, Forrest County’s portion of the settlement was $5.4 million, while Hatties-burg’s part was $1.2 million. Abrams said the settlement with the insurers was con-fidential.

Prior to the settlement, several insurers, including Scottsdale Insurance Company and Travelers Indemnity Company, filed a declaratory-judgment action alleging they had no duty to defend the county. The companies or their predecessors had provided law enforcement policies to the county during portions of the three men’s incarceration, but neither covered the county at the time the men were arrested.

Nonetheless, both the district court and the 5th Circuit found that the insurers had to defend the county, based on the specific language in their policies. The court held that both the Scottsdale policy, which was in effect from 1985 to 1986, and the Travelers policy, which was in effect from 2005 to 2011, were “injury-based” policies.

As a result, the estates of the three men could recover for the injuries they suffered in prison during the policy periods, even if the wrongful acts that put them in prison occurred long before the insurance policies were issued. The plaintiffs alleged Bivens, Dixon and Ruffin suffered everything from assaults to respiratory ailments to serious diseases while incarcerated.

“At bottom, Travelers and Scottsdale ask us to hold that that insurance coverage be triggered by a single moment of wrongful conduct, or a single moment of injury — even when the policy’s terms do not,” Judge Gregg Costa wrote for the panel. “If insurers want that result, they know how to bargain for it.”

An attorney for Travelers, Dennis M. Dolan of Litchfield Cavo in Chicago, re-ferred comment to an insurance com-pany spokesman, who did not respond to a message seeking comment. An attorney for Scottsdale, John D. Brady of Mitchell McNutt & Sams in Columbus, Mississippi, didn’t respond to a request for comment.

Abrams said the ruling could be impor-tant to other cases involving wrongfully convicted people.

“This bodily-injury language is fairly common,” he said.

As the 5th Circuit noted, some courts have found that injury-based policies didn’t apply to such convictions. But, Costa wrote,” those cases did not confront the allegations we have here of discrete bodily injuries beyond the harm of incarceration itself.”

Abrams worked on the case with fellow Lathrop partners Bill Beck and Alex Brown, as well as the well-known civil-rights litigation firm of Neufeld Scheck & Brustin in New York. Since 2004, Lathrop’s insurance recovery practice has helped recover more than $190 million for wrongfully convicted individuals, according to the firm’s website.

The case is The Travelers Indemnity Company et al. v. Mitchell et al., 17-60291.