Teacher Sued for Sexual Misconduct Loses Bid to Recoup Defense Costs

By Don R. Sampen, published, Chicago Daily Law Bulletin, November 4, 2025

The 1st District Appellate Court recently held that an insurer’s obligation to pay defense costs for an insured who successfully defended a suit claiming sexual misconduct was not ambiguous or illusory, and the dismissal of the lawsuit for want of prosecution did not give rise to a defense obligation. The case is Niemiec v. Markel Insurance Co., 2025 IL App (1st) 24222 (Sept. 16). The insured, Matt Niemiec, was represented by Cronin & Co. Ltd. of Chicago. Nielsen Zehe & Antas P.C. of Chicago represented the insurer, Markel.

Niemiec was a high school teacher in 2020 when one of his students sued him for sexual misconduct. The lawsuit was dismissed in 2023 for want of prosecution, but without prejudice and with leave to refile. As of the time of the appeal, the lawsuit had not been refiled.

Markel provided general liability insurance for the school district, and Niemiec was an insured under the policy.

It provided that Markel would reimburse the defense costs for an insured sued for sexual misconduct, but only following a final adjudication that included a determination that the insured did not commit or participate in the sexual misconduct. The policy language required a decision on the merits and the exhaustion of any appeals.

Niemiec sought reimbursement for his defense costs, and when Makel declined, he brought suit for breach of contract. He argued, among other things, that a literal interpretation of “final adjudication” would render the coverage illusory because he could not force the plaintiff in the underlying lawsuit to go to trial. He further claimed that “final adjudication” as used in the policy was ambiguous because it conflicted with other language promising coverage for a successful defense.

Markel filed a motion to dismiss, which the trial court granted, and Niemiec brought this appeal.

Analysis

In an opinion by Justice Rena M. Van Tine, the 1st District affirmed. She initially addressed the ambiguity argument. Reading the policy carefully, she observed that, for Niemiec to be eligible for reimbursement, the policy required that the case have gone to trial, the trial resulted in a finding of no liability for Niemiec, and all appeals have been exhausted. Van Tine found nothing ambiguous about those terms, and because they did not occur, Niemiec was not entitled to reimbursement.

He further contended, however, that the policy’s definition of “final adjudication” conflicted with the policy’s purpose of providing coverage for “innocent” insureds. Van Tine wrote the policy does indeed have such a purpose, and the fact that the defendant must prevail at trial did not make the policy ambiguous.

Niemiec also argued the policy should be interpreted as providing coverage to insureds who achieve a legal result substantially equivalent to a trial verdict in their favor.

Van Tine pointed out, however, that a dismissal for want of prosecution is not the substantial equivalent of a favorable trial verdict. She noted the statute of limitations for childhood sexual abuse is 20 years, so the plaintiff here could refile any time as late as 2038. Hence, the dismissal for want of prosecution was not a final adjudication in any sense.

Finally, with respect to Niemiec’s illusory argument, Van Tine observed that so long as a policy provides some coverage, no matter how limited, then coverage is not illusory. Here, the policy’s definition of “final adjudication” did not wipe out all coverage, but simply limited the scope of what the policy covered.

The court therefore affirmed the dismissal in favor of Markel.

Key Points

• A policy stating that it provides defense cost reimbursement for an “innocent” insured is not rendered ambiguous simply because it requires the insured to go through a successful trial on the merits before defense costs will be provided.
  
• So long as a policy provides some coverage, it will not be deemed illusory.