Coverage and Liability Issues in Sexual Misconduct Claims

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MASSACHUSETTSCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsAllegations of numerous acts of child abuse and negligence by variousdefendants at different locations precluded a finding that the injuriesresulted from a single occurrence. Worcester Ins. Co. v. Fells AcresDay Sch. Inc., 558 N.E.2d 958 (Mass. 1990).The Massachusetts courts have precluded coverage for claims againstinsureds who sexually molested minors, finding that an intent to injuremay be inferred as a matter of law from acts of child molestation.See Worcester Ins. Co. v. Fells Acres Day Sch. Inc., 558 N.E.2d 958(Mass. 1990) (Also holding associated injuries to abused children’sparents were not precluded by exclusion for expected or intendedinjury); Doe v. Liberty Mutual Ins. Co., 667 N.E.2d 1149 (Mass. 1996);United Serv. Automobile Assoc. v. Doe, 792 N.E.2d 708 (Mass. App.Ct. 2003). Intentional acts exclusions have also been upheld topreclude coverage for claims of sexual harassment and battery againstadults. Timpson v. Transamerica Ins. Co., 669 N.E.2d 1092 (Mass.Ct. App. 1996); Terrio v. McDonough, 450 N.E.2d 190 (Mass. Ct. App.1983).Intentional acts exclusion did not preclude coverage for negligenceclaims against adoptive parents in whose home minors were sexuallyabused by adopted child. Horace Mann Ins. Co. v. John Doe, 1994WL 879836 (Mass. Super. Ct. May 4, 1994).Sexual misconduct exclusions have been upheld to preclude coverageto perpetrators and to potentially liable third parties and are notagainst public policy. See Franklin v. Professional Risk ManagementServices, Inc., 987 F. Supp. 71 (D. Mass. 1997) (“Undue Familiarity”clause barred coverage for patient’s claims of sexual misconductagainst psychiatrist); Fireman’s Fund Ins. Co. v. Frederick Bromberg,1999 WL 744022 (Mass. Super. Ct. Aug. 2, 1999) (Sexual misconductexclusion precluded coverage for claims of sexual molestationby insured); Hillcrest Educational Centers, Inc. v. Continental Ins.Co., 1995 WL 809961 (Mass. Super. Ct. Mar. 28, 1995) (Sexualmisconduct exclusion barred coverage for claim against residentialeducational facility for claims arising out of rape of a student by aformer employee.)– 30 –
MASSACHUSETTSStatute of LimitationsMassachusetts has a three-year limitation period for tort actions.Mass. Gen. Laws ch. 260 § 2A.There is a discovery rule whereby actions for sexual abuse of aminor shall be commenced within three years from the acts allegedto have caused an injury or condition or within three years of the timethe victim discovered or reasonably should have discovered that anemotional or psychological injury or condition was caused by said act,whichever period expires later. Id. at 260 §4C. In order to survive amotion for summary judgment a claimant must show that the natureof the abuse was such that it would cause an objectively reasonableperson to fail to recognize the causal connection between it and theinjuries that it caused. Doe v. Creighton, 786 N.E.2d 1211 (Mass.2003) (Found victim’s delay in filing suit for sexual abuse was notobjectively reasonable and therefore statute of limitations not tolledwhere victim was 16 years old at the time of abuse and the injurieswere immediate and obvious). The discovery rule applies to tortactions against perpetrators and non-perpetrators of the abuse andone need not apprehend the full extent or nature of an injury in orderfor a cause of action to accrue. See Phinney v. Morgan, 654 N.E.2d77 (Mass. App. Ct. 1995); Flanagan v. Grant, 79 F.3d 1 (1st Cir. 1996); See also Ross v. Garabedian, 742 N.E.2d 1046 (Mass. 2001) (Foundsufficient evidence to defeat motion for summary judgment on statuteof limitations issue where it was unclear whether plaintiff perceived acausal connection between a defendant’s misconduct and the allegedpsychological harm).Reporting LawsOtherMass. Gen .Laws Ann. Ch. 119 §51A et. seq.If a tort is committed in the course of any activity carried on toaccomplish directly the charitable purposes of a corporation, trust orassociation, then liability shall not exceed twenty thousand dollarsexclusive of interest and costs. Mass. Ann. Laws ch. 231, § 85K.Sexual assault committed by an employee does not trigger vicariousliability of the employer. Jane Doe v. Purity Supreme, Inc., 422 Mass.563 (Mass. 1996); Worcester Ins. Co. v. Fells Acres Day Sch. Inc.,558 N.E.2d 958 (Mass. 1990); Timpson v. Transamerica Ins. Co., 669N.E.2d 1092 (Mass. App. Ct. 1996). However, an employer may beliable by reason of ratification of the employee’s intentional torts. SeeGagne v. O’Donoghue, 1996 WL 1185145 (Mass. Super. Ct. Jun. 26,1996) (Found evidence to withstand a motion for summary judgmentwhereby diocese may have ratified sexual abuse committed by priestby failing to investigate and discipline).Clerics are not immune from liability for directing or permitting asubordinate to do something that would expose a third party to danger.Leary v. Geoghan, 2000 WL 1473579 (Mass. Super. Ct. Jun. 28,2000); Mendez v. Geoghan, 1999 WL 792202 (Mass. Super. Ct. Aug.2, 1999); Gagne v. O’Donoghue, 1996 WL 1185145 (Mass. Super.Ct. Jun. 26, 1996) (Negligent hiring and supervision claims againstreligious organization arising out of sexual molestation of children bypriest not barred by the First Amendment). Documents from priest’spersonnel file are not protected by the First Amendment or analogousprovisions of the Massachusetts Constitution. Soc’y of Jesus of NewEng. v. Commonwealth, 808 N.E.2d 272 (Mass. 2004), aff’d, 818N.E.2d 559 (Mass. 2004).– 31 –
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Page 3 and 4: Part I.Claim Trends and Changes in
Page 5 and 6: Part II.(2) The negligent:(a) Emplo
Page 7 and 8: Part III.courts have found that if
Page 9 and 10: STATETRIGGER/#OCCURRENCESSEXUALMISC
Page 11 and 12: ALABAMACoverage Trigger & Number of
Page 13 and 14: ALASKAThe Code of Civil Procedure w
Page 15 and 16: ARKANSASCoverage Trigger & Number o
Page 17 and 18: CALIFORNIAStatute of LimitationsAct
Page 19 and 20: COLORADOReporting LawsOtherColo. Re
Page 21 and 22: CONNECTICUTOtherSexual abuse perpet
Page 23 and 24: DISTRICT OF COLUMBIACoverage Trigge
Page 25 and 26: FLORIDAStatute of LimitationsFlorid
Page 27 and 28: HAWAI’ICoverage Trigger & Number
Page 29 and 30: Did you know? The John Jay College
Page 31 and 32: ILLINOISStatute of LimitationsThe l
Page 33 and 34: IOWACoverage Trigger & Number ofOcc
Page 35 and 36: KENTUCKYCoverage Trigger & Number o
Page 37 and 38: LOUISIANAThe doctrine of “contra
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Page 45 and 46: MINNESOTAStatute of LimitationsThe
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Page 51 and 52: NEW HAMPSHIRECoverage Trigger & Num
Page 53 and 54: NEW JERSEYOtherThe New Jersey Chari
Page 55 and 56: NEW MEXICOWhere no physical injury
Page 57 and 58: NEW YORKOtherEmployer is not liable
Page 59 and 60: NORTH DAKOTACoverage Trigger & Numb
Page 61 and 62: OHIOOtherOhio courts have held that
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Page 65 and 66: OREGONReporting LawsOtherOr. Rev. S
Page 67 and 68: PENNSYLVANIAOtherThe Pennsylvania c
Page 69 and 70: SOUTH CAROLINACoverage Trigger & Nu
Page 71 and 72: TENNESSEECoverage Trigger & Number
Page 73 and 74: TEXASStatute of LimitationsTexas ha
Page 75 and 76: VERMONTCoverage Trigger & Number of
Page 77 and 78: VIRGINIAOtherA charity is not liabl
Page 79 and 80: WASHINGTONOtherAn employer is not s
Page 81 and 82: WISCONSINCoverage Trigger & Number
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Coverage and Liability Issues in Sexual Misconduct Claims

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