Coverage and Liability Issues in Sexual Misconduct Claims

KENTUCKYCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Not addressed in sexual misconduct setting.Kentucky subscribes to the rule that sexual molestation is inherentlyinjurious or substantially certain to result in some injury, so that theintent to injure or the expectation that injury will result can be inferredas a matter of law. Goldsmith v. Physicians Ins. Co. of Ohio, 890S.W.2d 644 (Ky. Ct. App. 1994).Non-perpetrator: In Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503 (6th Cir. 2003),the court found an employer’s retention of an employee who assaultedand murdered a client was an “occurrence”.Sexual Misconduct ExclusionsStatute of LimitationsNot addressed.Actions for personal injuries shall be commenced within 1 year afterthe cause of action accrued. Ky. Rev. Stat. Ann. § 413.140(1) (a).Civil actions based on childhood sexual abuse or assault shall bebrought before whichever of the following periods last expires: (a)five years of the commission of the act; (b) five years of the date thevictim knew or should have known of the act; or (c) five years afterthe victim attains the age of 18. Ky. Rev. Stat. §413.249. Legislationwas introduced on January 15, 2004 to extend the five years to twentyyears. See Kentucky House Bill No. 302.The Kentucky courts have refused to toll the five year statute oflimitations where there is no evidence that the defendant concealed orhad knowledge of the perpetrator’s abuse of children. See McGinnisv. Roman Catholic Diocese of Covington, 2003 WL 22111094 (Ky.App. Sep. 12, 2003). See also Rigazio v. Archdiocese of Louisville,853 S.W.2d 295 (Ky. Ct. App. 1993) (Limitations period not tolledwhere 24 year old was aware of the sexual abuse when he was aminor, but alleged repressed memory of the abuse thereafter); RomanCatholic Diocese of Covington v. Sector, 966 S.W.2d 286 (Ky. Ct.App. 1998) (Diocese’s awareness and concealment of its employee’ssexual molestation of minors prior to his abuse of claimant tolled thelimitations period).Reporting LawsOtherKy. Rev. Stat. Ann §620.030 et. seq.A diocese could not be held vicariously liable for a priest’s sexual affairwith claimant’s ex-wife because adultery was not within the priest’sscope of employment even though the priest was providing marriagecounseling to the couple. Osborne v. Payne, 31 S.W.3d 911 (Ky.2000); See also Roman Catholic Diocese of Covington v. Sector, 966S.W.2d 286 (Ky. Ct. App. 1998).– 25 –