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Application of the Abuse Exclusion: Recent Developments
Claims of sexual abuse and molestation are devastating to business owners and disconcerting to insurers because they often are made by or on behalf of minors, with whom jurors will sympathize and against whom statutes of limitations often do not apply. Moreover, they frequently contain high-dollar demands. It has been reported that insurers already have paid more than $59 million to defend and settle sexual abuse claims against Penn State University stemming from the abuse perpetrated by Jerry Sandusky. Based upon the complexity and risk, many sexual abuse claims result in coverage disputes.
Most commercial general liability, business owners' and homeowners' policies exclude coverage for the actual abuser under either an intentional acts exclusion or an abuse exclusion. While certain types of physical injury may be argued to be unintentional, sexual abuse or molestation is always considered an intentional wrongdoing. Coverage disputes arising from abuse claims frequently involve claims against persons or organizations other than the alleged abuser and analysis of either or both of the following: 1) applicable policy language separating insureds for purposes of coverage; and/or 2) the scope and wording of the abuse exclusion.
Often, a plaintiff files a lawsuit not only against the alleged abuser, but also against other defendants (churches, hospitals, governmental entities, schools, employers, etc.) who purportedly were negligent in failing to prevent the abuse or in creating a situation where the abuse allegedly was more likely to occur. Common examples of such allegations include negligent hiring, training and/or supervision of an employee who allegedly commits abuses, and negligent protection, supervision of or care for a minor or patient who allegedly has been abused. Such claims may or may not be covered and therefore often lead to declaratory judgment actions.
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