Coverage and Liability Issues in Sexual Misconduct Claims

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OREGONCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsWhere a priest sexually molested a minor male during four policyperiods, the Ninth Circuit applied Oregon law and found that therewere four occurrences. Interstate Fire & Casualty Co. v. Archdioceseof Portland Oregon, 35 F.3d 1325 (9th Cir. 1994), modified, 139 F.3d1234 (9th Cir. 1998).Generally the Oregon courts have adopted the inferred intent rule forperpetrators of sexual abuse and precluded coverage to them underintentional acts exclusions. See State Farm Fire and Cas. Co v.Reuter, 700 P.2d 236 (Or. 1985); Mutual Of Enumclaw v. Merrill, 794P.2d 818 (Or. Ct. App. 1990); Cf. American Cas. Co. v. Corum, 910P.2d 1151 (Or. Ct. App. 1996) (Coverage not precluded as a matterof law where insured nurse probed claimant’s genital area becausethe act at issue could be considered a vaginal examination); Walthersv. Travelers Cas. & Sur. Co., 1999 WL 793939 (D.Or. Sept. 16, 1999)(Accidental sexual touching by dentist).A student’s claim that a school district negligently hired, supervised,trained and retained a teacher who sexually abused him satisfied the“accident” requirement for occurrence based bodily injury coverage.North Clackamas School District v. Oregon School Boards AssociationProperty And Casualty Trust, 991 P.2d 1089 (Or. Ct. App. 1999).Not addressed.Actions for assault and battery and injury to persons shall becommenced within two years. Or. Rev. Stat. §12.110(1).An action based on conduct that constitutes child abuse or conductknowingly allowing, permitting or encouraging child abuse accruingwhile the person entitled to bring the action is under 18 years of ageshall be commenced not more than 6 years after that person attainsthe age of 18, or if the injured person has not discovered the injuryor the causal connection between the injury and the child abuse, norin the exercise of reasonable care should have discovered the injuryor the causal connection between the injury and the child abuse, notmore than three years from the date the injured person discovers or inthe exercise of reasonable care should have discovered the injury orthe causal connection, whichever period is longer. Id. at §12.117(1).The extended limitations period applies to negligence claimsagainst non-perpetrators and to respondeat superior claims againstemployers. See Walther v. Gossett, 941 P.2d 575 (Or. Ct. App. 1997);Lourim v. Swensen, 977 P.2d 1157 (Or. 1999).An Oregon court rejected an adult claimant’s attempt to toll thelimitations period by claiming she was unaware of the causalconnection between the abuse and her injuries where she hadmeetings with a psychiatrist and failed to introduce evidence of posttraumaticstress disorder. Flaningham v. Flaningham, 929 P.2d 1084(Or. Ct. App. 1996). Cf. Jasmin v. Ross, 33 P. 3d 725 (Or. Ct. App.2001) (Affirming jury verdict in favor of adult claimant who allegedsexual abuse as a minor more than six years prior to filing suit wherethere was evidence that she was unable to confront the cause of herinjuries due to post-traumatic stress disorder).– 54 –
OREGONReporting LawsOtherOr. Rev. Stat. §419B. 005, et. seq.The Oregon Supreme Court found that if allegations of conductrelated to employment resulted in the acts that caused the injury, thenthe employer could be liable for an employee’s sexual misconductunder a theory of respondeat superior. See Fearing v. Bucher, 328Or. 367 (Or. 1999) (Priest’s cultivation of a trusting relationship withthe claimant was motivated, at least in part, by a desire to furtherthe interests of the archdiocese); See also Lourim v. Swensen, 977P.2d 1157 (Or. 1999) (Molestation of boy scout). Cf. Minnis and LittleJohn’s Pizza v. Oregon Mut. Ins. Co., 48 P.3d 137 (Or. 2002) (Novicarious liability for sexual harassment where employee was notacting within time and space limits authorized by his employment);Vinsonhaler v. Quantum Residential Corp., 73 P.3d 930 (Or. Ct. App.2003) (No vicarious liability for sexual harassment of tenants bybuilding manager).– 55 –
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Coverage and Liability Issues in Sexual Misconduct Claims

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