Coverage and Liability Issues in Sexual Misconduct Claims

PENNSYLVANIACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:In a case alleging sexual abuse of three children from 1986 to 1988,the court found one occurrence per child with the occurrence datebeing the initial negligent failure to prevent the abuse. GeneralAccident Ins. Co. v. Allen, 708 A.2d 828 (1998); See also D’Auria v.Zurich Ins. Co., 352 Pa. Super. 231, 507 A.2d 857 (1986) (Physician’ssix-year sexual and drug-related affair with a patient was a continuingtort for which there was only one “claim” and not a separatemalpractice in each policy period).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. General Accident Ins.Co. v. Allen, 708 A.2d 828 (Pa. Super. 1998); Erie Ins. Exchange v.Claypoole, 673 A.2d 348 (Pa. Super. 1996); Aetna Casualty & SuretyCo. v. Roe, 650 A.2d 94 (Pa. Super. 1994); Wiley v. State Farm Fire& Casualty Co., 995 F.2d 457 (3d Cir. 1993). courts have refusedto infer intent where the alleged victim is of the age of majority andallegedly consented to the sexual conduct. See Teti v. Huron Ins.Co., 914 F. Supp. 1132 (E.D. Pa. 1996); Aetna Life & Casualty Co. v.Barthelemy, 33 F.3d 189 (3d Cir. 1994). The inferred intent rule is notapplied where the perpetrator is a minor. Allstate v. Sanchez, 2003WL 22100865 (E.D. Pa. Jul. 30, 2003).Where the policy excluded coverage for intentional acts of “theinsured,” coverage was barred only for the person who committed theintentional act and not the co-insured who was sued for negligencein connection with the abuse. General Accident Ins. Co. v. Allen, 708A.2d 828 (Pa. Super. 1998); See also Miller v. Quincy Mut. Fire Ins.Co. 2003 WL 23469293 (E.D. Pa. Dec. 4, 2003).Where the policy excludes coverage for intentional acts of “anyinsured,” one insured’s intentional acts bar negligent supervisionclaims against other insureds. Allstate Ins. Co. v. Kenney, 2003 WL22316776 (E.D. Pa. Oct. 8, 2003); Allstate v. Sanchez, 2003 WL22100865 (E.D. Pa. Jul. 30, 2003).Sexual Misconduct ExclusionsStatute of LimitationsNot addressed.Claims for personal injury and assault and battery must becommenced within two years. 42 Pa. Cons. Stat. Ann. §5524.The Pennsylvania Supreme Court refused to apply the discovery ruleto toll the limitations period in a sexual abuse case alleging repressedmemory finding that the discovery rule would only apply where noamount of reasonable diligence would have enabled the injured partyto discern the injury. Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997);Matthews v. Roman Catholic Diocese of Pittsburgh, 2004 WL 2526794(Pa. Com. Pl. Aug. 3, 2004).Reporting Laws23 Pa. Cons. Stat. Ann. §6311 et seq.– 56 –