Coverage and Liability Issues in Sexual Misconduct Claims

MISSISSIPPICoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.An intentional acts exclusion precluded coverage where an employerand its CEO were sued for sexual harassment. American StatesIns. Co. v. Natchez Steam Laundry and Simmons, 131 F.3d 551 (5thCir. 1998); See also American Guarantee and Liability Ins. Co. v.The 1906 Co., 129 F.3d 802 (5th Cir. 1997) (Injuries stemming fromsurreptitious videotaping of models in dressing room were intendedand expected from standpoint of photographer).Where claims against employer for negligent hiring, training andentrustment are related to and interdependent on intentionalmisconduct of an employee, then there is no coverage. See AmericanGuarantee and Liability Ins. Co. v. The 1906 Company, 129 F.3d 802(5th Cir. 1997).The Mississippi courts have applied sexual molestation exclusions toclaims against perpetrators and other potentially liable parties. SeeLincoln County School District v. Doe, 749 So.2d 943 (Miss. 1999);Titan Indemnity Co. v. Williams, 743 So.2d 1020 (Miss. Ct. App. 1999)(Holding professional services exclusion precluded coverage for claimagainst teachers for failure to provide proper supervision); Am. Nat’lGen. Ins. Co. v. Jackson, 203 F. Supp. 2d 674 (S.D. Miss. 2001);Foreman v. Continental Casualty Co., 770 F.2d 487 (5th Cir. 1985).Actions for assault and battery shall be commenced within oneyear after the cause of action accrued. Miss. Code Ann. § 15-1-35.Actions for which no other period of limitations is prescribed shall becommenced within three years after the cause of action accrued. Id.at §15-1-49. In actions for which no other limitations is prescribed thatinvolve latent injury or disease, the cause of action does not accrueuntil the claimant has discovered, or by reasonable diligence shouldhave discovered, the injury. Id.Reporting LawsOtherMiss. Code Ann. §43-21-353 et seq.The Mississippi courts have refused to subject employers to vicariousliability. See L.T. v. City of Jackson, 145 F. Supp. 2d 750 (S.D. Miss.2000); Tichenore v. Roman Catholic Church of Archdiocese of NewOrleans, 32 F. 3d 953 (5th Cir. 1994) (Held that molestation wasoutside the scope of a priest’s duties and that the archdiocese didnot ratify the molestations by allowing the priest to have contactwith young males); Saulsberry v. Atlantic Richfield Co., 673 F. Supp.811 (N.D. Miss. 1987) (Employer not subject to vicarious liability foremployee’s sexual harassment of co-employee).In a case by a parishioner against a church for alleged taping ofconversation between the parishioner and her husband, the courtfound that the claims for negligent misrepresentation, negligentinfliction of emotional distress, clergy malpractice and negligentsupervision and retention were barred by the First Amendment.Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004);See also Mallette v. Church of God International, 789 So.2d 120 (Miss.Ct. App. 2001) (Held First Amendment bars certain negligence claimsagainst religious institutions.)– 36 –