Coverage and Liability Issues in Sexual Misconduct Claims

OKLAHOMACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Courts infer intent to inflict harm when an adult perpetrator sexuallymolests a child such that coverage is precluded. Allstate Ins. Co. v.Thomas, 684 F. Supp. 1056 (W.D. Okla. 1988). See also Church Ins.Co. v. Shaw, 930 F.2d 32 (10th Cir. 1991) (Claims of negligence andbreach of fiduciary relationship against perpetrator priest were not an“occurrence” under church’s liability policy).Criminal acts exclusion applied to preclude coverage for negligenceclaims against insured church arising out of sexual abuse of minorfemales by church employee. All American Ins. Co. v. Burns, 971 F.2d438 (10th Cir. 1992); See also American Manufacturers Mut. Ins. Co.v. Wodarski, 68 F.3d 483 (10th Cir. 1995). No coverage for employerwhere employee sexually assaulted female tenant at apartmentcomplex because employee’s acts were attributable to the employer);Cf. Lutheran Benevolent Ins. Co. v. Nat’l Catholic Risk RetentionGroup, Inc., 939 F. Supp. 1506 (N.D. Okla. 1995) (Church’s retentionof priest after learning that the priest allegedly had sexually molesteda child constituted an “occurrence” within the meaning of the church’sexcess liability insurance policy).A sexual contact exclusion barred coverage for professionalmalpractice claims arising out of sexual relationship between patientand therapist and the exclusion was found not to be against publicpolicy. St. Paul Fire & Marine Ins. Co. v. Gold, 149 F.3d 1191 (10th Cir.1998). In another case a sexual misconduct exclusion barred claimsagainst insured day care center resulting from sexual molestationof children by employees of the day care center. Kansas City Fire &Marine Ins. Co. v. Happiness is a Learning Center, Inc., 968 F.2d 1224(10th Cir. 1992); Cf. Lutheran Benevolent Ins. Co. v. Nat’l CatholicRisk Retention Group, 939 F. Supp. 1506 W.D. Okla. (1995) (A “sexualmisconduct limited coverage” endorsement did not pre-empt coverageunder policy’s general liability provisions).Oklahoma has a two-year limitation period for personal injury claimsand 1 year limited period for actions based on assault or battery. Okla.Stat. tit. 12, §95 (3) and 95 (4).The limitations period for actions based on childhood sexual abuseis: (a) two years from the act alleged to have caused the injury orcondition or (b) two years from the time the victim discovered orreasonably should have discovered that the injury or condition wascaused by the act or that the act caused the injury for which the claimis brought. Id. at § 95(6). The evidence should include proof that thevictim had psychologically repressed the memory of the facts uponwhich the claim was predicated and that there was corroboratingevidence that the sexual abuse actually occurred. Any action basedon intentional conduct must be commenced within 20 years of thevictim reaching the age of 18. Id. See Weathers v. Fulgenzi, 884P.2d 538 (Okla. 1994) (Discovery rule did not apply to adult females’sexual abuse claims against therapist); Lovelace v. Keohane, 831P.2d 624 (Okla. 1992) (Discovery rule did not apply to claims arisingout of sexual relationship between adult female plaintiff suffering frommultiple personality disorder and priest).– 52 –