Coverage and Liability Issues in Sexual Misconduct Claims

NEW JERSEYCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Exclusions for bodily injury expected and intended by the insuredpreclude coverage for perpetrators of sexual abuse against childrenbecause the intent to harm is inferred by the conduct. AtlanticEmployers Ins. Co. v. Tots & Toddlers Pre-School Day Care Center,Inc., 571 A.2d 300 (N.J. App. Ct. 1990); See also Prudential Property& Casualty Ins. Co. v. Boylan, 704 A.2d 597 (N.J. App. Ct. 1998)(Intent to harm inferred in respect to the sexual abuse of a 5-year-oldgirl by a 15-year-old boy); Cf. Atlantic Employers Ins. Co. v. ChartwellManor School, 655 A.2d 954 (N.J. App. Ct. 1995) (If there is areasonable probability that the alleged acts were not sexual in nature,such as when a student’s genitals were held by a teacher to protectthem during a spanking, the subjective intent of the actor should beexamined).No intent to harm was imputed to parents of a 15-year-old boy whowere sued for negligent supervision after their son sexually abused afive-year old girl in their home. Prudential Property & Casualty Ins.Co. v. Boylan, 704 A.2d 597 (N.J. App. Ct. 1998).Not addressed.The limitations period for personal injury claims is two years from thedate of discovery. N.J. Stat. Ann §2A:14-2.New Jersey enacted a Child Sexual Abuse Act in 1992 whichestablished a statutory cause of action for childhood sexual abuseand set forth a limitations period of 2 years from the date the personabused reasonably discovers the injury and the injury’s causalrelationship to the act of sexual abuse. Id. at §2A:61B-1. This statuterequires a plenary hearing where the court (and not the jury) shallhear evidence of the mental state of the victim to determine whetherthe statute of limitations was tolled. J.L. & B.Z. v. J.F., 722 A.2d 558(N.J. App. Ct. 1999); D.M. v. River Dell Regional High School, 862A.2d 1226 (N.J. App. Ct. 2004) (Plenary hearing not required whereclaimant admitted he recognized that he had been injured by abusesix years earlier); See also Smith v. Estate of Kelly, 778 A. 2d 1162(Rejected claim that the statute of limitations should be tolled due to“religious duress”); Hardwick v. Americas Boychoir School, 845 A.2d619 (N.J. App. Ct. 2004) (Recognized that while statutory cause ofaction provided by Sexual Abuse Act only applied to perpetrators orsupervisors standing in loco parentis, the limitations period applied toall actions based on sexual abuse of a child).Reporting LawsN.J. Stat. Ann. §9:6-8.9 et. seq.– 42 –