Coverage and Liability Issues in Sexual Misconduct Claims

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ARIZONACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Not addressed in sexual misconduct setting.Intentional acts exclusions preclude coverage for insured perpetratorsof child molestation based on the inferred intent doctrine. Twin CityFire Ins. Co. v. Doe, 788 P.2d 121 (Ariz. Ct. App. 1989) (Public policyprecludes coverage for minor sexual abuse); See also State Farm Fire& Cas. Co. v. Brown, 905 P.2d 527 (Ariz. Ct. App. 1995) (Perpetrator’smental disorder did not deprive him of the capacity to intend his actsof minor sexual abuse so intentional acts exclusion barred coverage);K.B. v. State Farm Fire & Cas. Co., 941 P.2d 1288 (Ariz. Ct. App.1997). However, the presumption of intent does not apply when theperpetrator is a minor. See USAA v. DeValencia 949 P.2d 525 (Ariz.Ct. App. 1998).Not addressed in sexual misconduct setting.Sexual Misconduct Exclusions In Chicago Ins. Co. v. Manterola, 955 P.2d 982 (Ariz. Ct. App. 1998),the court found that a sexual misconduct exclusion barred coveragefor liability arising out of alleged sexual misconduct, however, itdeclined to address the applicability of a sexual misconduct exclusionto a “mixed” claim alleging liability for both sexual and non-sexualmisconduct.Statute of LimitationsPersonal injury actions shall be commenced within two years after thecause of action accrues. Ariz. Rev. Stat. Ann. §12-542.The Arizona Supreme Court applied the discovery rule where theclaimant alleged repressed memory of the abuse. Doe v. Roe, 955P.2d 951 (Ariz. 1998) (Also found the trauma of recovered memory ofabuse may render a claimant of “unsound mind” so the discovery ruleand tolling provision for unsound mind under §12-502 together maytoll the limitations period until a claimant both knows of the underlyingabuse and is capable of bringing a claim).A sexual abuse perpetrator’s threats to harm himself or his victim mayhave caused sufficient fear and duress in the victim to raise a genuineissue of material fact as to whether the limitations period was tolledduring the period of duress. Jane Doe One v. Garcia, 5 F. Supp.2d767 (D. Ariz. 1998).Reporting LawsOtherAriz. Rev. Stat. §13-3620 et. seq.An employer may be subject to respondeat superior liability for anemployee’s criminal sexual assault, abuse and harassment if the actswere committed incident to employment. State v. Schallock, 941 P.2d1275 (Ariz. 1997).The Arizona Court of Appeals ruled that the Free Exercise Clause ofthe First Amendment did not bar negligence claims against a churchwhere pastor allegedly defrauded and seduced claimant. Rashedi v.General Board of Church of the Nazarene, 54 P.3d 349 (Ariz. App.2002).– 4 –
ARKANSASCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Arkansas courts apply the inferred intent rule so that intentional actexclusions preclude coverage to perpetrators of sexual misconduct.CNA Ins. Co. v. McGinnis, 666 S.W.2d 689 (Ark. 1984); SiverballAmusement Inc. v. Utah Fire Ins. Co., 842 F. Supp. 1151 (W.D. Ark.1994), aff’d, 33 F.3d. 1476 (8th Cir. 1994).An intentional act exclusion did not preclude coverage for negligenceclaims brought against employer of employee who sexually molesteda minor. Siverball Amusement Inc. v. Utah Fire Ins. Co., 842 F. Supp.1151 (W.D. Ark. 1994), aff’d, 33 F.3d 1476 (8th Cir. 1994).In a case where a resident of a temporary facility brought an actionagainst the facility alleging rape by a fellow resident, the ArkansasSupreme Court held that a sexual action exclusion barred coverage.See Western World Ins. Co. v. Branch, 965 S.W.2d 760 (Ark. 1998);See also Govar v. Chicago Ins. Co., 879 F.2d 1581 (8th Cir. Ak. Law1989).Actions for assault and battery must be commenced within one yearafter the cause of action accrues. Ark. Code. Ann. § 16-56-104.Any civil action based on sexual abuse that occurred when the injuredperson was a minor, but is not discovered until after the personreached the age of majority, must be brought within three years fromthe time of discovery of the abuse by the injured party. A claim basedon an assertion of more than one act of sexual abuse is not limitedto the injured party’s first discovery of the relationship between anyof those acts and the injury, but may be based on the injured party’sdiscovery of the effect of the series of acts. Id. at § 16-56-130.Reporting LawsOtherArk. Code Ann. §12-12-501 et. seq.In Arkansas employers are not vicariously liable for the sexualmisconduct of their employees. See Porter v. Harshfield, 948 S.W.2d83 (Ark. 1997); Regions Bank & Trust v. Stone County Skilled NursingHome Facility, 49 S.W.3d 107 (Ark. 2001).In a case where members of a church filed discovery motionsasserting a statutory right to financial data and other businessinformation, the Arkansas Supreme Court held that the dispute wasecclesiastical in nature. Gibson v. Brown, 749 S.W.2d 297 (Ark. 1988).– 5 –
Page 1 and 2: Coverage and Liability Issues in Se
Page 3 and 4: Part I.Claim Trends and Changes in
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Page 7 and 8: Part III.courts have found that if
Page 9 and 10: STATETRIGGER/#OCCURRENCESSEXUALMISC
Page 11 and 12: ALABAMACoverage Trigger & Number of
Page 13: ALASKAThe Code of Civil Procedure w
Page 17 and 18: CALIFORNIAStatute of LimitationsAct
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Page 21 and 22: CONNECTICUTOtherSexual abuse perpet
Page 23 and 24: DISTRICT OF COLUMBIACoverage Trigge
Page 25 and 26: FLORIDAStatute of LimitationsFlorid
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Page 29 and 30: Did you know? The John Jay College
Page 31 and 32: ILLINOISStatute of LimitationsThe l
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Page 35 and 36: KENTUCKYCoverage Trigger & Number o
Page 37 and 38: LOUISIANAThe doctrine of “contra
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Page 41 and 42: MASSACHUSETTSStatute of Limitations
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Page 55 and 56: NEW MEXICOWhere no physical injury
Page 57 and 58: NEW YORKOtherEmployer is not liable
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OREGONReporting LawsOtherOr. Rev. S
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PENNSYLVANIAOtherThe Pennsylvania c
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TEXASStatute of LimitationsTexas ha
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VERMONTCoverage Trigger & Number of
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VIRGINIAOtherA charity is not liabl
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WASHINGTONOtherAn employer is not s
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WISCONSINCoverage Trigger & Number
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