Coverage and Liability Issues in Sexual Misconduct Claims

UTAHCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.The Utah courts examine the surrounding circumstances such as theparties’ ages, nature of their relationship, past experience and whetherthe perpetrator reasonably should have known that his actions weresubstantially certain to cause harm to determine whether an intentionalact exclusion would preclude coverage for the perpetrator. SeeAllstate Ins Co. v. Patterson, 904 F. Supp. 1270 (D. Ut. 1995) (Did notapply intentional act exclusions to claim where teenage boys sexuallyassaulted another male).Intentional and criminal acts exclusions did not preclude coverage fornegligence actions against non-perpetrators particularly where theexclusions do not contain “an insured” language. See Allstate Ins Co.v. Patterson, 904 F. Supp. 1270 (D. Ut. 1995).Not addressed.There is a one-year limitations period for actions for assault andbattery and a four-year limitations period for actions for negligence.Utah Code Ann. §78-12-29 and §78-12-25.For actions based on abuse suffered as a child, an action should bebrought (a) within four years after the person attains the age of 18years or (b) four years after the discovery of the abuse, whicheverperiod expires later. Utah Code Ann. §78-12-25.1. The knowledge ofa parent or guardian shall not be imputed to a person under the age of18 and the civil action may be brought only against a living person whointentionally perpetrated the abuse or negligently permitted it to occur.Id. This statute does not apply retroactively to claims which accruedprior to 1992. Roark v. Crabtree, 893 P.2d 1058 (Ut. 1995); Olsen v.Hooley, 865 P.2d 1345 (Ut. 1993); Burkholz v. Joyce, 972 P.2d 1235(Ut. 1998); Cf. Olesen v. Hooley, 865 P.2d 1345 (Ut. 1993) (Whereclaimant repressed memory of abuse for 12 years the court foundexceptional circumstances which tolled the limitations period).Reporting LawsOtherUtah Code Ann. §62A-4a-402 et. seq.The Utah courts have held that sexual misconduct of employees isoutside the course and scope of their employment. See J.H. v. WestValley City, 840 P. 2d 115 (Utah 1992) (No vicarious liability where ajuvenile was molested by a police officer); C.C. v. Roadrunner TruckingInc., 823 F. Supp. 913 (D. Utah 1993) (Truck driver’s rape of hitchhikeroutside scope of employment); Birkner v. Salt Lake County, 771 P. 2d1053 (Utah 1989) (Therapist’s sexual misconduct with a client outsidescope of employment); Jackson v. Righter, 891 P. 2d 1387 (Utah 1995)(Boss’ romantic relationship with employee outside scope and courseof employment).Communications between a bishop and a father who was accused ofsexually abusing his adopted daughter were found to be privileged.See Scott v. Hammock, 870 P.2d 947 (Ut. 1994).– 64 –