Coverage and Liability Issues in Sexual Misconduct Claims

MARYLANDCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Sexual abuse of a minor by an adult is inherently injurious irrespectiveof a perpetrator’s subjective intent such that an adult insured’s intent toengage in sexual contact with a child embodies an intent to injure forthe purpose of applying the intentional injury exclusion. Pettit v. ErieInsurance Exchange, 709 A.2d 1287 (Md. 1998); See also Harpy v.Nationwide Mut. Fire Ins. Co., 545 A.2d 718 (Md. Ct. Spec. App. 1988).Not addressed in sexual misconduct setting.Where pedophile sexually abused two minor brothers, the MarylandCourt of Special Appeals noted that a sexual molestation exclusion inone of the perpetrator’s homeowner’s insurance policies would havebarred coverage if the exclusion had been approved by the MarylandInsurance Commissioner prior to the abuse. Pettit v. Erie InsuranceExchange, 699 A.2d 550 (Md. Ct. Spec. App. 1997), aff’d, 709 A.2d1287 (Md. 1998).A civil action shall be filed within three years from the date it accruesunless another provision of the code provides a different period of timewithin which an action shall be commenced. Md. Code Ann., Cts. &Jud. Proc. § 5-101. An action for assault shall be filed within one yearfrom the date it accrues. Id. at § 5-105.The Maryland Legislature enacted Code § 5-117 Sexual Abuse of aMinor effective October 1, 2003, providing that an action for damagesarising out of alleged sexual abuse that occurred while the victim was aminor shall be filed within seven years of the date that the victim attainsthe age of majority. The act specifically provides that it does not applyretroactively to revive any action that was previously barred. Md. CodeAnn. Cts. & Jud. Proc. §5-117.The Maryland courts have not applied the discovery rule to casesinvolving sexual abuse of a minor. See Doe v. Maskell, 679 A.2d 1087(Md. 1996) (Alleged repression of memory of past sexual abuse did notactivate the discovery rules); Murphy v. Merzbacher, 697 A.2d 861 (Md.1997) (Statute barred claims that instructor sexually abused minors andthreatened them and their families so they would not report abuse).Reporting LawsOtherMd. Code Ann., Fam. Law §5-701 et. seq.In Maryland the funds of an organization held in trust for charitablepurposes should not be used to pay tort damage awards. MontroseChristian School Corp. v. Walsh, 770 A.2d 111 (Md. 2001).A county employer was not liable under respondeat superior for policeofficer’s rape of female motorist because rape was not within the scopeof his employment, there was no express or implied authority for sexualassault and the assault did not further the employer’s business. Wolfev. Anne Arundel County, 821 A.2d 52 (Md. 2003).Under the First Amendment’s Establishment and the Free Exerciseclauses, civil courts have no authority to second-guess ecclesiasticaldecisions made by hierarchical church bodies. Downs v. RomanCatholic Archbishop of Baltimore, 683 A.2d 808 (Md. Ct. Spec. App.1996); See also Borchers v. Hrychuk, 727 A.2d 388 (Md. Ct. Spec.App. 1999) (court declined to recognize the tort of clergy malpracticebecause to do so would require courts to become entangled withreligious doctrine).– 29 –