dissenting.
I respectfully dissent.
In a sense, the-court’s opinion today runs contrary to the rule announced'in our earlier decision involving the very malicious prosecution action with which we now deal. In Cohen v. Lupo, 927 F.2d 363 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 180, 116 L.Ed.2d 142 (1991), we stated:
The nucleus of operative fact necessary to maintain an action for malicious prosecution includes the conclusion of the underlying action. Whether Cohen would be victorious in the Bastien litigation could not have been determined until the conclusion of that case.
In Missouri, malicious prosecution requires proof that: (1) the underlying offending lawsuit was initiated or maintained without probable cause; ... [and] (3) the proceeding terminated in favor of the defendant....
Id. at 365.
While the court today recognizes this rule, its holding ignores it. Certainly, the maintenance of the action is a continuing wrong, and the definition of occurrence in the policy includes “exposure to conditions, which results during the policy period” in personal injury. “Personal injury,” however, in turn is defined to include injury arising out of malicious prosecution; there was no malicious prosecution injury, and no claim to be covered by the policy until the Bastien litigation concluded. In Roess v. St. Paul Fire and Marine Insurance Co., 383 F.Supp. 1231, 1235 (M.D.Fla.1974), and Security Mutual Casualty Co. v. Harbor Insurance Co., 65 Ill.App.3d 198, 21 Ill.Dec. 707, 712, 382 N.E.2d 1, 6 (1978), rev’d on other grounds, 77 Ill.2d 446, 34 Ill.Dec. 167, 397 N.E.2d 839 (1979), courts held *1301there was coverage under similar circumstances.
The court displays a great solicitude toward “an unwary insurer”. The insurers, however, choose the language for their policies. They may include malicious prosecution or not, and further may require policy applicants to provide information on pending lawsuits to use in determining whether to insure such risks. Of the several common law torts enumerated in the definition of personal injury, only malicious prosecution may involve conduct that extends over a period of time, but requires termination of a lawsuit to reach fruition as a claim. In the record before us, Royal obtained information from Werner that he had no unusual hobbies, traveled 60 days per year and owned a dachshund and a cockapoo.1 If an insurer can require such information, it certainly could have required information about pending lawsuits, and upon this information could have made an educated decision to write the policy or decline it.
I would reverse the judgment of the district court and hold that there was coverage under the policy.
. We so interpret a questionnaire, which actual- ly reads "Dauchsand" and “Kocapo”.