Coverage and Liability Issues in Sexual Misconduct Claims

ALABAMACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.The Alabama Supreme Court applied the inferred intent rule to claimsinvolving sexual abuse of minor children and refused to providecoverage for the perpetrator of the abuse. State Farm Fire & Cas. Co.v. Davis, 612 So.2d 458 (Ala. 1993); See also Horace Mann Ins. Co. v.Cecil Fore, 785 F. Supp. 947 (M.D. Ala. 1992) (Claims against teacherfor sexual abuse of students fell within intended injury exclusionin policy); Cf. State Auto Ins. Co. v. McIntyre, 652 F. Supp. 1177(N.D. Ala. 1987) (Grandfather accused of nonviolent sexual abuseof granddaughter covered under homeowner’s policy because courtfound no specific intent to cause bodily injury).The Alabama courts employ a subjective standard to determinewhether intentional acts exclusions apply to non-perpetrators. SeeCapital Alliance Ins. Co. v. Thorough-Clean Inc., 639 So. 2d 1349 (Ala.1994) (Required a “high degree of certainty” to trigger an intentionalact exclusion and found coverage for employer of alleged rapist);Sphere Drake Ins. Co. v. Shoney’s Inc., 923 F. Supp. 1481 (M.D. Ala.1996) (Assault and battery exclusion did not bar coverage for claimsof negligent supervision.) However, the Alabama Supreme Court heldthat where a policy excluded coverage for bodily injury which is eitherexpected or intended by “an” insured, there was no coverage for theperpetrator’s wife. State Farm Fire and Casualty Co. v. Davis, 612So.2d 458 (Ala. 1993).In a case alleging negligence and vicarious liability against theemployer of an employee who touched claimant in a sexually offensivemanner and made sexual remarks, the court found no coverage basedon an exclusion for injuries resulting from “sexual and/or physicalabuse by any employee.” CNA International v. CPB Enterprises Inc.,982 F. Supp. 831 (S.D. Ala. 1997); Cf. Sentry Ins. Co. v. Miller, 914 F.Supp. 496 (M.D. Ala. 1996), aff’d in part, rev’d in part, 114 F.3d 1202(11th Cir. 1997) (Exclusion for “personal accidents. . . arising out of .. . sexual molestation. . .” did not preclude coverage for negligenceclaims alleging inadvertent contact).Personal injury actions premised on negligence must be brought withintwo years of the accrual of the cause of action. Ala. Code §6-2-38 (1).Actions for “trespass to person or liberty” such as “assault and battery”must be brought within 6 years of the accrual of the cause of action.Id. at §6-2-34(1).The Supreme Court of Alabama rejected a repressed memoryargument in a sexual misconduct case and also held that traumaand repression of the abuse cannot be considered insanity disability.Travis v. Ziter, 681 So. 2d 1348 (Ala. 1996).Reporting LawsOtherAla. Code §26-14-1 et seq.Employers are not liable under a theory of respondeat superior forthe sexual misconduct of their employees. Doe v. Swift, 570 So. 2d1209 (Ala. 1990); Joyner v. AAA Cooper Transp., 477 So.2d 364 (Ala.1985).– 1 –