Coverage and Liability Issues in Sexual Misconduct Claims

SOUTH DAKOTACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.South Dakota public policy does not allow insurance coverage forintentionally tortious acts. S.D. CL 53-9-3 (“All contracts whichhave for their object, directly or indirectly, to exempt anyone fromresponsibility for his own fraud or willful injury to the person orproperty of another or from violation of law whether willful or negligent,are against the policy of the law.”); St. Paul Fire & Marine Ins. Co.v. Engelmann, 639 N.W.2d 192 (S.D. 2002) (Rapes of patients byphysician during gynecological examinations were not covered undereither general liability or professional liability policy). The intention orexpectation to inflict bodily injury will be inferred as a matter of law foracts of criminal sexual contact. American Family Ins. Co. v. Purdy,483 N.W.2d 197 (S.D. 1992).Not addressed in sexual misconduct setting.Not addressedThree years for actions for personal injury and two years for assault orbattery. S.D. Codified Laws § 15-2-14 and 15.A civil action based on intentional conduct for injury suffered as aresult of childhood sexual abuse shall be commenced within threeyears of the act alleged to have caused the injury or condition, orthree years from the time the victim discovered or reasonably shouldhave discovered that the injury or condition was caused by the act,whichever period expires later. Id. at § 26-10-25. This statute appliesretroactively and may revive a previously expired cause of action. SeeStratmeyer v. Stratmeyer, 567 N.W.2d 220 (S.D. 1997); Delonga v.Diocese of Sioux Falls, 329 F. Supp. 2d 1092 (D. S.D. 2004).Reporting LawsOtherS.D. Codified Laws §26-8A-1 et. seq.An employer may be vicariously liable for the sexual torts of anemployee based upon a foreseeability test that evaluates whethera sufficient nexus exists between the agent’s employment and theactivity which caused the injury. St. John v. United States, 240 F.3d671 (8th Cir. 2001) (Question of fact existed regarding whether exhusband’salleged rape of former wife occurred during the scope of hisemployment as a police officer); Primeaux v. United States, 181 F.3d876 (8th Cir. 1999) (Rape of motorist by police officer was not withinscope of employment); Red Elk v. United States, 62 F.3d 1102 (8thCir. 1995) (Rape of girl by police officer who stopped her for curfewviolation was within scope of employment).– 60 –