Coverage and Liability Issues in Sexual Misconduct Claims

COLORADOCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.An intent to injure may be inferred as a matter of law for claimsalleging intentional conduct and negligence where an adult perpetratorengaged in sexual activities with a child. See Allstate Ins. Co. v.Troelstrup, 789 P.2d 415 (Colo. 1990); Colorado Farm Bureau Mut.Ins. Co. v. Snowbarger, 934 P.2d 909 (Colo. Ct. App. 1997). Intentto harm has also been inferred where the perpetrator was a minor.Swentkowski by and through Reed v. Dawson, 881 P.2d 437 (Colo. Ct.App. 1994).For case brought against insured and his minor son arising out of theson’s sexual assault on another minor, the negligence claims againstthe parent were not covered since the intentional acts exclusionprecluded coverage when “any insured” intended or expected harm.Swentkowski by and through Reed v. Dawson, 881 P.2d 437 (Colo. Ct.App. 1994).The Colorado courts have upheld sexual misconduct exclusions andfound that they do not violate public policy. Bohrer v. Church MutualIns. Co., 965 P.2d 1258 (Colo. 1998); Church v. Mut. Ins. Co. v. Klein,940 P.2d 1001 (Colo. Ct. App. 1996); Physicians Nat’l Risk RetentionGroup, Inc. v. Price, 968 F.2d 1224 (10th Cir. 1992).The limitations period for tort actions is two years. Colo. Rev. Stat.§13-80-102.Actions based on a sexual assault or a sexual offense against achild shall be commenced either six years after a disability has beenremoved for a person under disability or six years after a cause ofaction accrues, whichever occurs later. Id. at §13-80-103.7. Theterm “person under a disability” includes victims of sexual assaultwhere there is a special relationship or where the victim resides in aninstitution. Id. at §13-80-1037. (3.5) (a). If a claimant brings a civilaction 15 years or more after attaining the age of 18, the claimantmay only recover damages for medical and counseling treatment andexpenses plus costs and fees. Id. at §13-80-103.7(3.5)(c).A cause of action shall accrue when both the injury and its causeare known or should have been known by the exercise of reasonablediligence. Id. at § 13-80-108. See also Colburn v. Kopit, 59 P.3d 295(Colo. Ct. App. 2002) (Cause of action for breach of fiduciary duty ornegligence accrues on date claimant had knowledge of facts whichwould put a reasonable person on notice of the nature and extent ofan injury and that the injury was caused by the wrongful conduct ofanother); Ayon v. Gourley, 185 F.3d 873 (10th Cir. 1999); Sailsbery v.Parks, 983 P.2d 137 (Colo. Ct. App. 1999); Cassidy v. Smith, 817 P.2d555 (Colo. Ct. App. 1991). The six-year limitations period does notapply to claims against parties other than the perpetrator. Sandoval v.Archdiocese of Denver, 8 P.3d 598 (Colo. Ct. App. 2000).Claims for fraudulent concealment are insufficient if claimants knew orshould have known the basis of their claims. P.R. v. Zavaras, 2002 W.L. 31424805 (10th Cir. 2002).– 8 –