Coverage and Liability Issues in Sexual Misconduct Claims

WEST VIRGINIACoverage Trigger & Number ofOccurrencesIntentional Acts ExclusionsPerpetrator:Non-perpetrator:Sexual Misconduct ExclusionsStatute of LimitationsNot addressed in sexual misconduct setting.Intentional acts exclusions preclude coverage for injury which isexpected or intended by an insured perpetrator based on the “inferredintent” doctrine that sexual molestation of a minor is, by its nature,intended or expected to cause injury. Horace Mann Ins. Co. v. Leeber,376 S.E.2d 581 (W.Va. 1988); See also Smith v. Animal UrgentCare, Inc., 542 S.E.2d. 827 (W.Va. 2000). Cf. Tackett v. AmericanMotorists Ins. Co., 584 S.E. 2d 158 (W. Va. 2003) (Insurer had dutyto defend store employee accused of sexual misconduct of customerwhere allegations of invasion of privacy triggered personal injurycoverage and there was the intentional acts exclusion applicable tothis coverage).Intentional acts exclusions preclude coverage for negligence claimsagainst a perpetrator’s employer or any other negligent parties arisingout of the perpetrator’s sexual misconduct because the essenceof such claims remains the underlying intentional acts of sexualmisconduct. Smith v. Animal Urgent Care, Inc., 542 S.E.2D 827 (W.Va.2000); See also West Virginia Fire & Cas. Co. v. Stanley, 2004 WL1144050 (W. Va. May 21, 2004) (No coverage for sexual abuse byinsureds’ son of his niece during visits to the insureds’ home).Not addressed.Actions for personal injuries shall be brought within two years afterthe cause of action accrues. W. Va. Code §55-2-12(b). Minority andinsanity toll the limitations period except no case may be brought morethan 20 years after the cause of action accrues. Id. at §55-2-15.West Virginia court recognized that the “discovery rule” may toll thelimitations period when a claimant was prevented from knowing aboutthe tort claim or the wrongdoer’s identity due to defendant’s conduct.See Miller v. Monongalia County Board of Education, 556 S.E. 2d 427(W. Va. 2001) (Student’s allegations that defendant board fraudulentlyconcealed material facts tolled limitations period for suit to recover forinjuries from sexual misconduct by teacher); Cf. Albright v. White, 503S.E.2d 860 (W. Va. 1998) (Suit time-barred because claimant allegedrepressed memory of childhood sexual abuse for 25 years, whichexceeded the 20-year period described by §55-2-15).Reporting LawsW.Va. Code §49-6A-1 et. seq.– 70 –