Coverage and Liability Issues in Sexual Misconduct Claims

MISSOURICoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsSexual Misconduct ExclusionsStatute of LimitationsIn a case alleging negligent retention and supervision of volunteerbasketball coach who sexually abused children, the court found a singleoccurrence per each claimant with the insurance coverage existingat the time of the first sexual encounter deemed triggered. May v.Maryland Cas. Corp., 792 F. Supp. 63 (E.D. Mo. 1992); See also Zipkinv. Freeman, 436 S.W.2d 753 (Mo. 1968) (Finding a continuous tortoccurring over three years constituted one “claim”).Perpetrator: Courts have upheld exclusions for bodily injury expected and intendedby the insured where the insured was the perpetrator because the intentto harm was inferred by the conduct. American Family Mutual Ins. Co. v.Copeland-Williams, 941 S.W.2d 625 (Mo. App. 1997); State Farm Fire &Cas. Co. v. Caley, 936 S.W.2d 250 (Mo. App. 1997).Non-perpetrator: A Missouri court found no coverage for negligence claims against a nonperpetratorwhere an intentional acts exclusion provided no coverageif any insured caused or expected bodily injury. See American FamilyMutual Ins. Co. v. Copeland-Williams, 941 S.W. 2d 625 (Mo. App. 1997).In a case alleging that homeowners negligently supervised childrenin their care, causing them to be sexually abused by a third person, itwas held that an exclusion for bodily injury arising out of any sexual actdid not apply to preclude coverage. St. Paul Fire & Marine Ins. Co. v.Schrum, 149 F.3d 878 (8th Cir. 1998).There is a two-year limitations period for assault or battery and afive year limitations period for personal injury claims. Mo. Rev. Stat.§516.140 and 516.120(4).There is a 10-year limitations period for personal injury claims causedto an individual by a person within the third degree of affinity orconsanguinity who subjects such individual to sexual contact. Id. at§516.371. See Ridder v. Hibsch, 94 S.W.3d 470 (Mo. App. 2003)(Limitations period begins to run at the time of the act).Reporting LawsOtherThe Missouri statute was updated in 2004 to provide that a personhas until age 21 or three years from the date the person discoversor reasonably should have discovered that the injury was caused bythe abuse, whichever occurs later, to bring an action. Mo. Rev. Stat.§537.046. See H.R.B. v. Archbishop Rigali, 18 S.W.3d 440 (Mo. App.2000) (Claimant’s damage was sustained and capable of ascertainmentat the time of the abuse); Straub v. Tull, 128 S.W.3d 157 (Mo. App. 2004)(Longer statute of limitations applied to claims by daughter against fatherfor childhood sexual abuse who did not connect her injuries with theabuse). Cf. Harris v. Hollingsworth, 150 S.W.2d 85 (Mo. App. 2004)(Longer limitations period did not apply to daughter whose claim firstbecame viable prior to enactment of §537.046).Mo. Rev. Stat. §210.110 et seq.Intentional sexual activity and intentional infliction of emotional distressdo not fall within the scope of priest’s employment and diocese cannotbe held liable under an agency theory. Newyear v. Church Ins. Co., 155F.3d 1041 (8th Cir. 1998); Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997);Gray v. Ward, 950 S.W.2d 232 (Mo. 1997).Claims against a religious organization for negligent ordination andsupervision of clergy are barred by the First Amendment; however, claimsfor intentional failure to supervise clergy are not barred. Gibson v. Brewer,952 S.W.2d 239 (Mo. 1997); Gray v. Ward, 950 S.W.2d 232 (Mo. 1997).– 37 –