Coverage and Liability Issues in Sexual Misconduct Claims

MAINECoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Intentional acts exclusions preclude coverage for bodily injuryexpected or intended by an insured perpetrator based on the “inferredintent” doctrine that sexual molestation of a minor inherently carrieswith it the intent to cause injury. Perreault v. Maine Bonding & Cas.Co., 568 A.2d 1100 (Me. 1990) (Also held that public policy precludescoverage for a perpetrator’s sexual abuse of minor).An exclusion for intentional acts of “the insured” does not bar coveragefor negligence of another insured which contributed to sexual abuse,because negligence is “accidental” and thus an insurable “occurrence.”Hanover Ins. Co. v. Crocker, 688 A.2d 928 (Me. 1997). However,an exclusion for intentional acts of “an insured” does bar coveragefor another insured’s negligence because such wording precludescoverage for claims due to any insured’s intentional acts. Korhonenv. Allstate Ins. Co., 827 A.2d 833 (Me. 2003); Johnson v. Allstate Ins.Co., 687 A.2d 642 (Me. 1997).Court denied summary judgment to insurer finding that where therewas no physical contact between the abuser and the victim, there wasno sexual action/sexual contact that would warrant exclusion underthe policy’s sexual misconduct exclusion. Thomas v. Maine Bonding &Cas. Co., 2003 Me. Super. LEXIS 48 (Super. Ct. Feb. 28, 2003).All civil actions shall be commenced within 6 years after the cause ofaction accrues. Me. Rev. Stat. Ann. tit. 14, §752.There is no limitations period for actions based on minor sexual abuse;such actions may be commenced at any time. Id. at §752-C. AFederal District Court certified the issue of whether §752-C applies toactions against non-perpetrators to the Maine Supreme Judicial Court.Allen v. Forest, 257 F. Supp. 2d 276 (D. Me. 2003).Reporting LawsOtherMe. Rev. Stat. tit. 22, §4011 et seq.The defense of charitable immunity is available if an institution: 1) hasno capital stock and makes no profits or dividends; and, 2) derivesfunds mainly from public and private charity and holds those funds intrust for mainly “charitable” purposes. Child v. Central Maine Med.Ctr., 575 A.2d 318 (Me. 1990).Charitable immunity is waived to theextent a charitable organization has insurance coverage and damagesfor tort liability shall not exceed policy limits. Me. Rev. Stat. Ann. tit.14, §158.The First Amendment bars claims against church entities based onunderlying acts of sexual misconduct by clergy or church membersbecause adjudication of the issues would interfere with mattersconcerning religious doctrine or organization. Swanson v. RomanCatholic Bishop of Portland, 692 A.2d 441 (Me. 1997); See alsoBryan R. v. Watchtower Bible and Tract Soc’y of N.Y. Inc., 738 A.2d839 (Me. 1999).– 28 –