Coverage and Liability Issues in Sexual Misconduct Claims

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WASHINGTONCoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Intentional acts exclusions preclude coverage for injury expectedor intended by an insured perpetrator based on the inferred intentdoctrine that sexual molestation of a minor is intended or expected tocause injury. Rodriguez v. Williams, 729 P.2d 627, 630 (Wash. 1986);Farmers Ins. Co. v. Hembree, 773 P.2d 105 (Wash. Ct. App. 1989);See also American Econ. Ins. Co. v. Estate of Wilker, 977 P.2d 677(Wash. Ct. App. 1999), rev.den., denied, 994 P.2d 844 (Wash. 2000).Exclusions that bar coverage for intentional acts of “an insured” alsopreclude coverage for non-perpetrators. See Farmers Ins. Co. v.Hembree, 773 P.2d 105 (Wash. Ct. App. 1989); Caroff v. Farmers Ins.Co. of Washington, 989 P.2d 1233 (Wash. Ct. App. 1999), rev.den.; 10P.3d 1073 (Wash. 2000).Sexual misconduct exclusions bar coverage for claims arising outof alleged sexual abuse. Caroff v. Farmers Ins. Co. of Washington,989 P.2d 1233 (Wash. Ct. App. 1999), rev.den., 10 P.3d 1073 (Wash.2000); National Union Fire Ins. Co. of Pittsburgh v. Northwest YouthServices, et al., 983 P.2d 1144 (Wash. Ct. App. 1999), rev.den., 994P.2d 845 (Wash. 2000). It is not against public policy for an insurancepolicy to provide less coverage for sexual misconduct claims than nonsexualmisconduct claims; however, it violates public policy to provideless coverage for non-sexual misconduct merely because sexualmisconduct is alleged to have occurred at the same time. AmericanHome Assurance Co. v. Cohen, 881 P.2d 1001 (Wash. 1994).An action for injury to the person shall be commenced within threeyears. Wash. Rev. Code Ann. §4.16.080.A victim of childhood sexual abuse may file suit within the later of (1)three years from the abusive act; (2) three years from when the victimdiscovered or reasonably should have discovered that the injury orcondition was caused by the abusive act; or (3) three years from whenthe victim discovered that the abusive act caused the injury for whichthe claim is brought. Id. at §4.16.340. This limitations period extendsto negligence causes of action against non-perpetrators who arealleged to have failed to prevent the abuse. C.J.C. v. Corporation ofCatholic Bishop of Yakima, 985 P.2d 262 (Wash. 1999); Cloud ex rel.Cloud v. Summers, 991 P.2d 1169 (Wash. Ct. App. 1999); See alsoHollman v. Corcoran, 949 P.2d 386 (Wash. Ct. App. 1997) (Limitationperiod for childhood sexual abuse is tolled until the victim discoversthe causal connection between the abuse and the injuries for whichthe claim is brought); Arnold v. Amtrak, 2001 WL 725123 (9th Cir.June 21, 2001).Reporting LawsWash. Rev. Code §26.44.010 et seq.– 68 –
WASHINGTONOtherAn employer is not subject to respondeat superior liability underWashington law for an employee’s intentional sexual misconduct.C.J.C. v. Corporation of the Catholic Bishop of Yakima, 985 P.2d 262(Wash. 1999); Niece v. Elmview Group Home, 929 P.2d 420 (Wash.1997).The First Amendment does not preclude imposing a duty ofreasonable care on a church so long as liability is predicated uponsecular conduct, such as minor sexual abuse, and does not involveinterpretation of church doctrine or religious beliefs. C.J.C. v. Corp. ofthe Catholic Bishop of Yakima, 985 P.2d 262 (Wash. 1999).However, the First Amendment may preclude adjudication ofa negligent supervision claim arising out of a minister’s sexualmisconduct if the church’s authority is so diffuse as to require thecourt’s consideration and interpretation of the church’s laws anddoctrines. Germain v. Pullman Baptist Church, 980 P.2d 809 (Wash.Ct. App. 1999); See also S.H.C. v. Sheng-Yen Lu, 54 P.3d 174 (Wash.Ct. App. 2002).– 69 –
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