Increasing public concern over sexual misconduct, evidenced by the #MeToo movement and investigations into high-profile organizations such as USA Gymnastics, the Boy Scouts of America, various religious institutions, and the entertainment industry, has led to the enactment of laws that may have a major impact on the coverage litigation world. This year, eighteen states and the District of Columbia will enact laws modifying the statute of limitations for child sexual abuse cases, allowing victims to bring claims that otherwise would have been time-barred.
One of these state laws is the Child Victims Act, enacted earlier this year by New York Governor Andrew Cuomo. The Act provides a one-year window for child sexual abuse victims to bring lawsuits for their abuse, regardless of the expiration of any applicable statute of limitations. Since the Act was passed, Rockefeller University in New York has received several hundred claims alleging sexual abuse by a now-deceased professor from the 1940s to the 1980s. The lawsuits against the University include allegations of negligence in its hiring, retention, and supervision of the professor.
Last week, Rockefeller University filed suit against its insurers in New York state court, seeking defense and indemnity coverage for these claims. According to the complaint, after “effectively conced[ing] that coverage was triggered under their policies” and agreeing to “participate in and contribute on a pre-suit basis to the settlement” of the sexual abuse claims, Rockefeller’s primary insurers have “steadfastly refused” to consent to the settlement of any claim in advance of litigation and have refused to contribute to the costs of already settled claims.
Rockefeller’s complaint accuses its insurers of using a “wait-and-see” tactic to determine the impact of the Child Victims Act and other similar state statutes. This delay strategy may become a common response for insurance carriers facing such claims, as the effect of laws reforming the statute of limitations for child sexual abuse cases is still largely unknown.
Also just last week, a lawsuit was filed against the Boy Scouts in Pennsylvania state court, alleging that a child was sexually assaulted hundreds of times by a scout leader in the 1970s. The claims asserted against the Boy Scouts include allegations of negligence, reckless misconduct in failing to protect its members, and conspiracy to keep sexual assault incidents hidden.
The Washington Post reports that Abused in Scouting (a group of law firms collaborating to bring child sexual abuse claims to light) has gathered details of over 500 cases of sexual abuse of men who participated in the Boy Scouts. The men range in age from 14 to 88 and are located across the country. According to testimony given in an unrelated litigation involving a children’s theater company, a review of the Boy Scouts’ internal files on “ineligible volunteers” from 1946 to 2016 has led to the identification of over 12,200 victims and 7,800 perpetrators of sexual assault.
As institutions confront the responsibility of rectifying the mistakes of, and developing a meaningful approach to addressing, sexual misconduct and abuse, economic realities will require them to seek funding from their insurers to cover the costs of investigating, defending, and resolving these claims. With insurers seeking to limit or deny coverage for such claims, it is inevitable that insurance coverage litigation concerning sexual misconduct and abuse claims will continue to grow. Coverage for these claims will ultimately turn on, among other things, the nature of the underlying allegations, the type of insurance in place, the particular policy language at issue, and applicable law.