MEMORANDUM OF DECISION AND ORDER

ZOBEL, District Judge.

Plaintiff Eric Sarsfield ("Sarsfield") was convicted of rape in July 1987 and served close to ten years in prison. He was exonerated based on DNA evidence in August 2000. Thereafter he sued the City of Marlborough (the "City") and a number of its current and former employees for federal civil rights violations and state law violations related to his arrest, prosecution and imprisonment. (See Sarsfield v. City of Marlborough, Civ. A. No. 03-10319-RWZ.)

Defendants (collectively, "Great American") issued to the City a series of general liability policies, each with a one-year term, for the years 1991-2000. Great American denied the City's request for coverage under the policies, and the City ultimately entered into a settlement with Sarsfield in which it stipulated to its liability and assigned to Sarsfield "all of its rights to recover its defense costs, its settlement payment under this agreement, and any other recoverable costs, expenses, damages, fees and penalties attributable to any rights to insurance coverage it may have...." (Civ. A. No. 03-10319-RWZ, Stipulation for Judgment (Docket # 94).) After a bench trial on damages, this court entered final judgment against the City pursuant to the Stipulation for Judgment, awarding Sarsfield approximately $13 million in damages. (See Civ. A. No. 03-10319-RWZ, Judgment (Docket # 97).)

Sarsfield brings the present action to recover the portion of the judgment allocated for the time period after July 19911 (approximately $11 million) and all attorneys' fees and costs awarded to him in the underlying suit. The parties have filed cross motions for summary judgment, plaintiff on the ground that defendants breached their duty to defend the City in the underlying suit, and defendants on the ground that they had no such duty nor a duty to indemnify. For the reasons discussed below, plaintiff's motion is denied and defendants' motion is allowed.

I. The Policies

The general liability policies ran from July 1, of one year to July 1, of the next year (e.g., the first policy ran from July 1, 1991 through July 1, 1992). Plaintiff bases his claim for insurance coverage solely upon the "Law Enforcement Liability ("LEL policy" or "policy") coverage included in the general liability policies from July 1992 through July 2000 (the "policy period").2 Two versions (1993 and 1995) of the LEL policy were used during the policy period.3 Both versions contain the same relevant language:

(Law Enforcement Liability Coverage Form (Ed. 01/93) (Docket # 6-13), 19-23.)

II. Legal Standard

Summary judgment is appropriate where there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). "Where the facts upon which liability is claimed or denied under an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide." Cont'l Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 374 (1st Cir.1991) (internal quotation marks and citation omitted). In Massachusetts4 an insurance policy is construed under general rules of contract interpretation, with policy language accorded its plain and ordinary meaning. Brazas Sporting Arms, Inc. v. Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 4 (1st Cir.2000).

III. Duty to Defend

"The question of the initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions: if the allegations of the complaint are `reasonably susceptible' of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense." Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 788 N.E.2d 522, 531 (2003) (quoting Cont'l Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 461 N.E.2d 209 (1984)). "Specifically, the process is one of envisaging what kinds of losses may be proved as lying within the range of the allegations of the complaint, and then seeing whether any such loss fits the expectation of protective insurance reasonably generated by the terms of the policy." Id. (quoting Sterilite Corp. v. Cont'l Cas. Co., 17 Mass.App.Ct. 316, 458 N.E.2d 338 (1983)). The duty to defend is broader than the duty to indemnify. Nonetheless, "when the allegations in the underlying complaint lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate or defend the claimant." Sullivan, 788 N.E.2d at 531 (internal quotation marks and citations omitted).

Plaintiff filed three successive complaints in the underlying litigation. For present purposes I look to the Third Amended Complaint upon which defendants based their refusal to defend the action.5 (See Civ. A. No. 03-10319-RWZ, Third Am. Compl. and Jury Demand (Docket # 75) ("Complaint").) The Complaint set forth allegations pertaining to the August 24, 1986, rape and the subsequent police investigation culminating in plaintiff's arrest and conviction in July 1987. It set forth eight federal claims based upon 42 U.S.C. § 1983 based upon: unduly suggestive identification procedures (Count I); false arrest and malicious prosecution (Count II); fabrication of inculpatory evidence (Count III); suppression of exculpatory evidence (Count IV); supervisory liability (Counts V and VIII); conspiracy to violate civil rights (Count VI) and unconstitutional custom or practice (Count VII), as well as three state claims for violation of the Massachusetts Civil Rights Act (Count IX), malicious prosecution (Count X) and negligent training and supervision (Count XI). The parties disagree as to whether these wrongful acts and offenses are covered by the LEL policy.

I start with the language of the policy. It insures against "damages because of `wrongful act(s)' which result in ... personal injury ... caused by an `occurrence.'" See supra. "Wrongful act," "personal injury," and "occurrence" are terms of art defined in the policy. They are linked to each other by the use of causal connectors such as "because of," "result in," and "caused by." "This construction implies that [wrongful act], injury, and occurrence, while necessarily connected, are nevertheless distinguishable. It means further that each element is expected to occur separately in time." Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 523 F.Supp. 110, 114 (D.Mass. 1981), aff'd as modified, 682 F.2d 12 (1st Cir.1982). The policy covers only damages resulting from "`wrongful act(s)' which occurs... during the policy period." The first inquiry, therefore, is whether the Complaint alleges any wrongful acts by the insured defendants during the policy period.

As an initial matter, it is worth noting that plaintiff acknowledges that the alleged wrongful conduct by the Marlborough police officers which led to his conviction occurred before any of the policies in issue took effect. However, he alleges that the officers' continued concealment of their misconduct during his incarceration itself constituted a "wrongful act" which resulted in a continuing "injury" caused by an "occurrence," as those terms are defined by the LEL policy. (See Compl. ¶ 53; Mem. of Law in Supp. of Pl.'s Mot. for Partial Summ. J. (Docket # 28), 1, 10-11.) Defendants dispute both that the continued concealment constituted a "wrongful act" and that such act caused injury or continuing injury to plaintiff during the policy period.

First, "[i]t is the source from which the plaintiff's personal injury originates rather than the specific theories of liability alleged in the complaint which determines the insurer's duty to defend." Bagley v. Monticello Ins. Co., 430 Mass. 454, 720 N.E.2d 813, 817 (1999) (internal quotation marks and citation omitted). Plaintiff's injuries stem from his arrest and conviction, not from any omissions by the insured defendants during the policy period. His complaint is not "reasonably susceptible" of an interpretation that it states a claim for damages based on wrongful acts during the policy period. None of the claims for damages are based upon the officers' alleged concealment of their misconduct during the time plaintiff was imprisoned. Although plaintiff asserted a claim based on suppression of exculpatory evidence (Count IV), he alleged only that the defendant officers violated his due process and fair trial rights by "fail[ing] to disclose to the prosecutor material information that was favorable" to plaintiff. (Compl. ¶¶ 79-80 (emphasis added).) Similarly, his claim based upon a conspiracy to violate his constitutional rights (Count VI) asserted only that the officers "agreed and acted intentionally to withhold and conceal information from the prosecutor." (Id. ¶ 90 (emphasis added).) These allegations clearly concern pre-conviction conduct.

Mindful that Massachusetts courts often broadly interpret complaint allegations, see, e.g., Simplex Technologies, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 706 N.E.2d 1135, 1137 (1999) (covered loss need only be "allege[d] in the most general terms"), in the interest of a complete analysis the court will assume arguendo that the Complaint alleges damages during the policy period based upon the officers' violation of a continuing duty to disclose their misconduct.6 Under the policy language, the second question is whether such acts resulted in personal or bodily injury to the plaintiff.

The record in this case clearly shows that the alleged concealment during the policy period did not result in injury to plaintiff. It is important to note in this context that the cause of injury for purposes of insurance coverage is not necessarily the same as the cause of injury for purposes of tort liability. See RLI Ins. Co. v. Simon's Rock Early Coll., 54 Mass.App.Ct. 286, 765 N.E.2d 247, 250 (2002).7 Plaintiff fails to identify any injury resulting from the alleged concealment during the policy period that is distinct from the injuries he incurred when he was convicted and imprisoned. See Coregis Ins. Co. v. City of Harrisburg, No. 1:03-CV-920, 2006 WL 860710, *11 (M.D.Pa. Mar. 30, 2006). Moreover, even if the concealment could be said to cause a distinct injury, as noted above the concealment first occurred prior to the policy period and any resulting injury would predate the policy.

The third question is whether, as plaintiff argues, the concealment resulted in a "continuing injury" that triggers coverage under the policy.8 The court concludes that it did not. Theories of "continuing injury" and "continuous" or "multiple" triggers derive from asbestosis and other "latent" or gradual injury cases where the injuries may have existed but were unknown at the time the insured purchased insurance. See, e.g., Keene Corp. v. Ins. Co. of N. Am., 667 F.2d 1034, 1042-47 (D.C.Cir.1981). In many instances the initial exposure to asbestos occurred during the policy period, but the resulting "manifestation" of the asbestos-related injury did not occur until many years later. As it became "widely known that prolonged inhalation of asbestos has a high probability of causing disease," insurance companies ceased providing coverage for asbestos-related injuries. Id. at 1045-46. If coverage were triggered only when the injury manifested, insurance companies would only have to bear a fraction of the insured's total liability for asbestos-related diseases. This result would undermine both the function of the insurance policies and the reasonable expectations of the insured:

Id. at 1046. In contrast, applying a "continuous trigger" maximized insurance coverage by implicating all policies in effect from the date of exposure to the date of manifestation. See generally James M. Fischer, Insurance Coverage for Mass Exposure Tort Claims: The Debate Over the Appropriate Trigger Rule, 45 Drake L. Rev. 625, 646-50 (1997). The rationale underlying application of the "continuous trigger" theory in the insurance coverage context makes clear that it is not well-suited to a situation, where, as here, any injury was evident from the outset and first occurred prior to the inception of insurance coverage.

Malicious prosecution cases present a somewhat closer analogy to the present case. See Heck v. Humphrey, 512 U.S. 477, 484-86, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (favorably comparing malicious prosecution claims and § 1983 claims that require plaintiff to prove the unlawfulness of his confinement).9 Although in most instances the claim for malicious prosecution does not accrue until the person who was wrongfully convicted is exonerated, a majority of courts have held that the injury, for insurance purposes, occurs when the underlying criminal charges are filed. See, e.g., City of Erie, Pa. v. Guaranty Nat. Ins. Co., 109 F.3d 156, 160 (3d Cir. 1997); Royal Indem. Co. v. Werner, 979 F.2d 1299, 1300 (8th Cir.1992); Newfane v. Gen. Star Nat'l Ins. Co., 14 A.D.3d 72, 77, 784 N.Y.S.2d 787 (N.Y.App.Ct.2004), and cases cited therein. As the Third Circuit noted, "[i]n malicious prosecution cases, there is no interval between arrest and injury that would allow an insurance company to terminate coverage. The plaintiff faces incarceration, humiliation, and damage to reputation as soon as charges are filed. Perhaps for this reason, no federal or state court has adopted the multiple trigger theory in malicious prosecution cases." City of Erie, 109 F.3d at 165.

As with Keene, the recognition that a contrary result would contravene the parties' reasonable expectations underlies these cases. In construing a policy, it is appropriate "to consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered." Tr. of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 616 N.E.2d 68, 72 (1993) (quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576 (1990)). It would be unreasonable for the City to expect the LEL policy to cover liability for tortious acts committed before its inception. See N. River Ins. Co. v. Broward County Sheriff's Office, 428 F.Supp.2d 1284, 1290 (S.D.Fla.2006) (rejecting coverage for lawsuits involving former inmates incarcerated prior to the policy period and later exonerated, noting, "it is inconceivable that the calculation of the premium that Broward County [the insured] paid North River [the insurer] in order to purchase the Policy included an analysis of any earlier prosecutions in Broward County and the likelihood of malfeasance over the course of those prosecutions").

IV. Duty to Indemnify

The duty to defend is broader than the duty to indemnify. "If an insurer has no duty to defend, based on the allegations in the plaintiff's complaint, it necessarily follows that the insurer does not have a duty to indemnify." Bagley, 720 N.E.2d at 817, citing United Nat'l Ins. Co. v. Parish, 48 Mass.App.Ct. 67, 717 N.E.2d 1016, 1020 (1999). Plaintiff cannot establish otherwise by reference to the consent judgment it unilaterally entered into with the City. See Bartholomew v. Appalachian Ins. Co., 655 F.2d 27, 29 (1st Cir.1981) ("Plaintiffs' extended argument that the insurers' responsibility could be established by the consent judgment to which it was not a party is equally fallacious.").

V. Conclusion

I am sympathetic to plaintiff's position and recognize that this decision may preclude him from ever being fully compensated for the losses he has suffered. Nevertheless, I am persuaded that, for the reasons given above, defendants' cross-motion for summary judgment (Docket # 23) must be ALLOWED, and plaintiff's cross-motion for partial summary judgment (Docket # 26) DENIED.