Coverage and Liability Issues in Sexual Misconduct Claims

NEW YORKCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsThe number of occurrences equals the number of policy periodsduring which an insured’s actions led to exposure of children toabusive conditions in foster home. Safeguard Ins. Co. v. AngelGuardian Home, 946 F. Supp. 221 (E.D.N.Y. 1996)Injuries caused by sexual misconduct are deemed intentional as amatter of law and thus within meaning of intentional injury exclusion.Allstate Ins. Co. v. Mugavero, 581 N.Y.S.2d 142 (N.Y. 1992); See alsoSormani v. Orange County Community College, 693 N.Y.S.2d 624(N.Y. App. Div. 1999) (Sexual abuse, sexual harassment and unlawfulimprisonment by insured not an “occurrence” under general liabilitypolicy).Intentional acts exclusion did not bar coverage for negligence claimsagainst non-perpetrator. RJC Realty Holding Corp. v. RepublicFranklin Ins. Co., 777 N.Y. S.2d 4 (N.Y. 2004); ACE Fire UnderwritersIns. Co. v. Orange-Ulster Bd., 779 N.Y.S.2d 545 (Sup. Ct. 2004);Watkins Glen Central School Dist. v. National Union Fire Ins. Co., 732N.Y.S.2d 70 (N.Y. App. Div. 2001).Sexual misconduct limitations are not against public policy. SeeAmerican Home Assur. Co. v. McDonald, 712 N.Y.S.2d 507 (N.Y.App. Div. 2000) (Sexual misconduct limitation which required that themisconduct be “with or to any former or current patient or client of anyinsured”, did not apply where plaintiff was not a patient of the insured).See also Towne Bus Corp. v. Insurance Co. of the State of Pa., 744N.Y.S.2d 394 (Sup. Ct. 2002).An action to recover damages for a personal injury must becommenced within 3 years. N.Y. CPLR 214. An action to recoverdamages for assault, battery or false imprisonment must be broughtwithin one year. Id. at 215.In an action against a priest, diocese and church officials to recoverdamages for alleged sexual abuse by the priest, the one-year statuteof limitations applied to action against priest and three-year limitationsperiod applied to action against diocese and church officials fornegligent retention and supervision. Sharon B. v. Reverend S., 665N.Y.S.2d 139 (N.Y. App. Div. 1997).New York does not recognize the common law “delayed discovery”rule in sexual abuse cases. Bassile v. Covenant House, 594 N.Y.S.2d192 (N.Y. App. Div. 1993); Mars v. Diocese of Rochester, 775 N.Y.S.2d681 (N.Y. App. Div. 2004); N.M. v. Westchester County Health CareCorp., 781 N.Y.S.2d 370 (N.Y. App. Div. 2004).Equitable tolling of the statute of limitations is allowed where thedefendant actively prevents the victim from asserting a cause of actionby use of deception, concealment, threats or other misconduct. Doe v.Roe, 2004 WL 2963908 (Sup. Ct. Dec. 17, 2004).Reporting LawsN.Y. Soc. Serv. Law §411 et seq.– 46 –