Coverage and Liability Issues in Sexual Misconduct Claims

NEW HAMPSHIRECoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Courts have upheld exclusions for bodily injury expected and intendedby the insured where the insured was the perpetrator because theintent to harm was inferred by the conduct. See Vermont Mut. Ins. Co.v. Malcolm, 517 A.2d 800 (N.H. 1986); Pennsylvania Millers Mut. Ins.Co. v. Doe, 882 F. Supp. 195 (D. N.H. 1994), aff’d without opinion subnom., Pennsylvania Millers Mut. Ins. Co. v. Cheever, 47 F.3d 1156 (1stCir. 1995); Litteer v. Utica Mut. Ins. Co., Inc., 898 F. Supp. 35 (D. N.H.1995).Not addressed in sexual misconduct setting.Not addressed.The limitations period for personal injury claims is three years fromthe date of discovery. N.H. Rev. Stat. Ann. §508:4. However, abusethat predates 1986 but is not discovered until later is subject to a sixyearrather than a three-year limitations period. See Conrad v. Hazen,665 A.2d 372 (N.H. 1995); Taylor v. Litteer, 925 F. Supp. 898 (D. N.H.1996).The common law discovery rule may toll the limitations period wherea claimant claims repressed memories of the abuse. See McCollumv. D’Arcy, 638 A.2d 797 (N.H. 1994). The claimant has the burden ofsubstantiating the allegations of abuse and validating the phenomenonof repressed memory. Id; See also Taylor v. Litteer, 925 F. Supp.898 (D. N.H. 1996).The New Hampshire courts have ruled that it isnot appropriate to grant a Motion to Dismiss based upon a limitationsdefense since a fully developed record is necessary to determinewhether the discovery rule applies. See McLean v. Gaudet, 769 F.Supp. 30 (D. N.H. 1990); Durant v. Durant, 1994 WL 312913 (June 27,1994).Reporting LawsN.H. Rev. Stat. Ann. §169-C.2 et seq.– 41 –