Coverage and Liability Issues in Sexual Misconduct Claims

LOUISIANACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsIn a case where two priests molested 31 children over a seven yearperiod, the Fifth Circuit Court of Appeals, applying Louisiana law,found that the initial molestation of each claimant during each policyperiod constituted a separate occurrence. Society of Roman CatholicChurch of Diocese of Lafayette and Lake Charles, Inc v. Interstate Fire& Cas. Co., 26 F.3d 1359 (5th Cir. 1994), appeal after remand, 126F.3d 727 (5th Cir. 1997).Louisiana courts have adopted the inferred intent rule in molestationin cases so that intentional act exclusions preclude coverage for oneaccused of molesting a minor. See L.M. v. J.P.M. and State Farm Ins.Co., 714 So.2d 809 (La. App. 1998); Smith v. Perkins, 648 So.2d 482(La. App. 1994), writ denied, 651 So.2d. 292 (La. 1995).In negligence case against baby sitter alleging sexual molestationby sitter’s son, court found that an intentional acts exclusion did notpreclude coverage. Johnson v. Ned, 2001 WL 1161270 (La. App. Oct.3, 2001). See also, Jones v. Doe, 673 So.2d 1163 (La. App. 1996)(intentional acts exclusion did not bar negligence claim against parentswhose son perpetrated sexual abuse of a minor).The Louisiana courts have upheld sexual acts exclusions to precludecoverage to perpetrators and to other potentially liable parties. SeeSanchez v. Callegan, 753 So.2d 403 (La. Ct. App. 2000) (No coveragefor negligence claims against perpetrator’s spouse because but forthe excluded sexual act, there would be no damage); Jones v. Doe,673 So.2d 1163 (La. App. 1996) (Molestation exclusion precludedcoverage for negligence claims against school board); Stein v. Martin,709 So.2d 1041 (La. App. 1998) (Sexual misconduct exclusionprecluded coverage for nursery school operations); Duplantis v.State Farm, 606 So.2d 51 (La. App. 1992) (Exclusion precludedcoverage for claims against insured and its employees); Cf. Newby v.Jefferson Parish School Board, 738 So.2d 93 (La. App. 1999) (Sexualmolestation exclusion did not preclude coverage for claim involvingconsensual sexual intercourse).There is a one year prescriptive period for tort-based (delictual) claimswhich begins to run from the day injury or damage is sustained. La.Civ. Code. Ann. § 3492.In 1993 there was legislation to provide a ten-year prescriptive periodfor an action against a person for “sexual abuse of a minor” whichbegins to run from the day the minor attains majority; however, everyclaimant 21 years of age and older at the time the action is filedshall file a certificate of merit. La. Rev. Stat. Ann. § 9:2800.9. TheLouisiana courts refused to apply this statute retroactively. G.B.F. v.Keys, 687 So.2d 632, 635 (La. Ct. App. 1997); Harrison v. Gore, 660So. 2d 563 (La. Ct. App. 1995).The above prescriptive period applies to negligence claims arising outof a party’s duty to prevent sexual abuse. See Mimmitt v. NationalRailroad Passenger Corp., 2000 WL 1449886 (E.D. La. Sept. 27,2000); Hall v. Hebert, 2001 WL 699989 (La.Ct. App. June 22, 2001);Dugas v. Durr, 707 So.2d. 1368 (La. Ct. App. 1998).– 26 –