By David M. Mayer
Sexual abuse and mistreatment has been occurring for hundreds and thousands of years. Sadly, it was even accepted in society. Even if not accepted, the topic was often ignored. Historically, few lawsuits were filed for injuries related to sexual abuse. Often, sexual abuse victims were too humiliated to bring these matters to light, or were afraid of the additional harm an abuser may inflict on them. However, the door began to open in the late 1970’s and 80’s when the Roman Catholic Church was hit with numerous lawsuits involving sexual abuse by their priests. Eventually, the press picked up the story and performed detailed investigations into the claims, which often confirmed the allegations. This eventually led to lawsuits being filed against other religious organizations, various medical institutions, schools and even family members. It became clear sexual abuse was not just happening in the Catholic Church. Finally, the victims found a manner in which to be compensated for their injuries, which often times led to better treatment and understanding of what occurred.
However, asserting a sexual abuse case is not an easy task. There are many pitfalls and difficult legal issues that a sexual abuse victim will encounter when bringing a lawsuit. This article attempts to set forth some of the hurdles the client and lawyer will encounter in litigation.
As set forth in the Introduction, sexual abuse victims have been hesitant to come forward for a variety of reasons. Many times it is shame, guilt that they somehow “asked for it”, fear, just wanting to forget it ever happened, or even just not knowing how to properly report the abuse. Fortunately, the media and various support groups have helped victims come forward to report the abuse.
We have found it extremely difficult to discuss these matters when a victim first contacts our firm. By the time the victims have decided to seek legal representation and come to our office, they have generally overcome the issue of “denial” and are looking for legal advice on how to proceed in civil litigation. During this meeting, if we discover the victim has not reported the abuse to the proper authorities, we suggest that they do so immediately. The majority of times, our clients pursue claims not for monetary reasons, but to ensure the abuser will not be able to victimize others.
In the initial meeting, it is important to put the client at ease. We recommend having at least one member of the firm in the meeting who is the same gender as the potential client. Experience has taught us that our clients feel more at ease discussing their situation and the abuse they suffered with someone of the same gender. During the first meeting do not to ask too many questions of the client, but be there to answer any questions they may have about the process. Be patient. Even when a sexual abuse victim comes into our office, it is not until the third or fourth meeting that the client feels comfortable telling us the “full” story. In the initial meeting, the client will tell us about an event that involved the sexual abuse, but not tell us about the numerous other times the abuse occurred or the multiple locations of the abuse. This can lead to some problems down the road, because often times the location of the abuse can lead to additional responsible parties, other than just the abuser.
Since sexual abuse victims are generally hesitant to come forward with their claims there is usually some time period that has elapsed between the abuse and the time we meet with the client. One of the first obstacles is to make sure that the victim’s claims are not barred by the statute of limitations.
In Missouri, a Plaintiff must bring a general negligence claim within 5 years of the act. See RSMo § 516.120. However, a claim for assault and battery must be brought within 2 years of the act. See RSMo. § 516.140. In Kansas, a Plaintiff must bring a general negligence claim within 2 years of the act. See K.S.A. § 60-514. However, a claim for assault and battery must be brought within 1 year of the act. See K.S.A. § 60-514.
It is also important to note that many of the sexual abuse victims are under the age of majority at the time of the sexual abuse. Under Missouri law, the applicable statute of limitations does not start to run against the abuser until the victim turns 21, and the victim has 10 years to bring the lawsuit after turning 21. See R.S.Mo. § 537.046. Recently however, the Missouri Supreme Court refused to apply the 10-year statute to an organization, or anyone other than the sexual assailant. See State ex rel. Heart of America v. McKenzie, 484 S.W.3d 320 (Mo. 2016). Claims for sexual abuse against any party other than the individual perpetrator must be asserted within 5 years of the abuse, or if a minor, within 5 years after the victim turns 21.
The Missouri and Kansas courts have recognized two separate theories that would also extend the statute of limitations. First, the statute of limitations may be tolled if the Defendant committed a fraud in covering up the sexual act or interfered with the victim’s right to pursue a claim. See Ellison v. Fry, 437 s.W.3d 762 (Mo. 2014); Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695 (Mo. Ct. App. 1996); accord State v. Palmer, 248 Kan. 681 (Kan. 1991) (stating affirmative acts that conceal conduct toll the statute of limitations). Additionally, the Missouri Court has specifically recognized the statute of limitations may be tolled if there is evidence of repressed memory. See D.T. v. Catholic Diocese of Kan. City-St. Joseph, 419 S.W.3d 143 (Mo. Ct. App. 2013); Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576 (Mo. 2006). Essentially, the victim must not have appreciated the injury or the right to bring a cause of action. See Powel, 197 S.W.3d at 578-86. This is consistent with the Missouri legislature also granting an additional three years to bring a claim within three years of the date the plaintiff discovers, or reasonably should have discovered, that the injury or illness was caused by childhood sexual abuse. See R.S.Mo. 537.046.
The obvious Defendant in all sexual abuse cases is the actual sexual abuser. This may be one person or a number of abusers. Due to the passage of time, it may be difficult to locate the defendants because many abusers will move locations.
A potential Defendant to consider is the owner of the premises where the abuse took place. A property owner has a duty to make the premises safe. See Hagen v. McDonald’s Corp., 231 S.W.3d 858 (Mo. Ct. App. 2007); Wright v. St. Louis Produce Mkt., Inc., 43 S.W.3d 404 (Mo. Ct. App. 2001); accord Jones v. Hansen, 254 Kan. 499, 510 (Kan. 1994). This duty may be breached if the property owner has designed or maintained the premises in a manner that allows the abuse to take place, or if the property owner is aware that the perpetrator is a potential abuser. These potential Defendants could include hotels, motels, playground owners, schools, businesses, religious organizations and any residential or business property owners.
Another potential Defendant could by an employer. An employer may be liable if the scope of employment includes contact with children or the disabled, and the employer fails to conduct a proper background check (such as a school/nursing home/care facility/day care). See D.T., 419 S.W.3d 143 (Mo. Ct. App. 2013); Dibrill v. Normandy Assocs.,383 S.W.3d 77 (Mo. Ct. App. 2012).
Along these lines, a person/organization may be liable if a parent/guardian places the child/disabled person in the care of another. The person owes a duty to protect and/or supervise the child, and may be liable if they allow a third party to abuse the victim. For example, in Am. Family Mut. Ins. Co. v. Parnell, the operators of a day care were held responsible for failing to protect a child from sexual abuse that occurred when the day care owner’s son sexually assaulted a child. See 478 S.W.3d 489 (Mo. Ct. App. 2015); see also Thomas v. County Comm’rs of Shawnee Cnty., 40 Kan. App. 2d 946, 960-61 (Kan. Ct. App. 2008) (recognizing claims of negligent supervision.).
Sometimes the hardest part of a sexual abuse case is actually finding a Defendant that has enough money to pay the judgment and/or an insurance policy that would provide coverage for the allegations of sexual abuse. Because of insurance coverage issues, it is important to state several causes of action when filing the Petition. We usually include causes of action that are sounded in negligence, as opposed to intentional acts. As a general rule, many insurance policies do not provide coverage for intentional acts. However, most policies have broader coverage for claims that are based on negligence.
It is extremely important to send out discovery (if a lawsuit has been filed) requesting the insurance information and a copy of the insurance policy. After receiving the policy, make sure that the policy provided covers the correct time period, and has the proper endorsements attached to the policy. As basic as that sounds, we have been provided the incorrect policy with incorrect endorsements many times. This is especially important in sexual abuse claims because the coverage of these claims has changed drastically over the years.
In most of the sexual abuse cases our office has handled, our clients have been abused multiple times over several months and even years. We have always taken the position that each sexual act is a separate “occurrence.” However, most insurance companies do not agree with that position. At the very least, absent language to the contrary, most insurance companies would agree that there is separate coverage for each policy period. For example, if a child is abused starting in August of 2016 and the acts continue to occur into 2017, there may be two, separate insurance policy limits that would apply (one limit for each year). The lawyer needs to read the “limits of liability section” and the definition of “occurrence” carefully.
Additionally, the perpetrator may have subjected more than one person to sexual abuse during the same time period. In these situations, each separate act should again be looked at as a separate occurrence for each victim. While a general aggregate limit may then limit the total recovery, this should provide for additional coverage beyond the “per occurrence” limit. For example, we recently represented two young girls who were sexual abused by their grandfather over a one-year period (which included two separate insurance policies). We argued separate limits for each girl in each policy period because each girl was subject to a separate “occurrence.”
Since the 1980’s, the insurance companies have begun to exclude coverage for sexual acts in their standard coverage. Even before the 1980’s, most insurance policies excluded coverage “for personal injury or property damage which is either expected or intended by” the insured. Generally, the Missouri Courts will apply a subjective standard to determine if the insured “intended” the act. See Cameron Mut. Ins. Co. v. Moll, 50 S.W.3d 329 (Mo. Ct. App. 2001). However, in sexual abuse cases, there appears to be an “inferred intent” to do harm to a child. See Mid-Century Ins. Co. v. L.D.G., 835 S.W.2d 436, 439 (Mo. Ct. App. 1992) (Hanna, F.W., dissenting).
Currently, many insurance policies are attempting to prevent sexual abuse coverage by attaching an exclusion to the policy. However, the policy has to be very specific in excluding coverage, because most policies provide for coverage in the general form, but then attempt to take away coverage in the exclusions. In many cases, Missouri courts will interpret this language in favor of providing coverage.
“Missouri law is well-settled that where one provision of a policy appears to grant coverage and another to take it away, an ambiguity exists that will be resolved in favor of coverage. If a court finds that the language of an insurance policy is ambiguous, the interpretation which is most favorable to the insured is adopted.” Nationwide Ins. Co. of Am. v. Thomas, 2016 Mo. App. LEXIS 26 (Mo. Ct. App. 2016); Jones v. Mid-Century Ins. Co., 287 S.W.3d 687, 690 (Mo. 2009) (explaining ambiguity in an insurance policy in determining the applicability of coverage exclusion will be construed in favor of coverage, against the insurer.).
A court will deem an insurance policy ambiguous when the language of the policy is susceptible to multiple interpretations and its meaning is uncertain, as it applies to these policy provisions, “[w]hen interpreting an insurance policy, the guide is that where a term is used in one phrase of a policy, its absence in another phrase is significant.” Green v. Penn-America Ins. Co., 242 S.W.3d 374 (Mo. Ct. App. 2007); accord O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 576 (Kan. 2002) (explaining “where the terms of an insurance policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail.”).
Even assuming the court determines a “sexual misconduct” exclusion should apply, the exclusion may not cover all of the potential claims against all Defendants. For example, as set forth previously, one of the claims against a potential employer or organization is the failure to properly protect and supervise the child/children. Missouri courts clearly recognize this cause of action. See Parnell, 478 S.W.3d at 493-94.
An exemplary Sexual Misconduct form, generally states:
“Except for the insurance provided by sexual misconduct or sexual molestation liability coverage, the policy does not apply to nor do we have any duty to defend, any claim or suit seeking damages arising out of any actual or alleged act of sexual misconduct or sexual molestation including damages on account of any negligent hiring or transfer of, failure to supervise, or failure to dismiss any employee or volunteer worker alleged to have committed any act of sexual misconduct or sexual molestation.”
By the very specific language used by the insurance company, this form would apply to the claims made for sexual abuse against the organization for their failure to supervise an employee (i.e. abuser). However, this form does not apply to claims made against the organization for their failure to protect or supervise the children. This is an important distinction, because Missouri Courts have specifically recognized a separate coverage analysis in recent decisions involving sexual abuse.
In Parnell, a minor (M.S.) attended the Parnell’s daycare. While at the daycare, M.S. was subject to sexual abuse by the Parnell’s son. The Parnell’s had an insurance policy with American Family that excluded coverage for Abuse (sexual molestation or contact) and Intentional injuries. However, the Court found the claims against the Parnell’s for negligent supervision of the minor were covered. The Court stated:
“In this case, like Neal, the Parnell’s obligation and ability to supervise and control M.S. are the decisive factors in the negligent supervision claim against them. That M.S.’s harm was caused by the alleged intentional, unwanted sexual contact by the Parnells’ son is only incidental to the claim. The claim for negligent supervision of a minor is unrelated to and can occur without the intentional injury or sexual abuse… On these facts, M.S.’s claim of negligent supervision is a separate and non-excluded cause of her injuries, apart from the intentional sexual abuse.”
Parnell, 478 S.W.3d at 494; see also St. Paul Fire & Marine Ins. Co. v Schrum, 149 F.3rd 878, 881 (8th Cir. 1998).
The Parnell Court also explained the concurrent proximate cause rule, which provides insurance coverage for two events that cause harm, although one may be excluded.
“The concurrent proximate cause rule states that an insurance policy will be construed to provide coverage where an injury was proximately caused by two events–even if one of these events was subject to an exclusion clause–if the differing allegations of causation are independent and distinct. For the rule to apply, the injury must have resulted from a covered cause that is truly independent and distinct from the excluded cause. To determine whether causes are independent and distinct, the court considers whether the covered cause and excluded cause depend upon each other to establish the necessary elements of each claim. If the excluded cause is merely incidental to the covered cause, that is, if the covered cause could occur without the excluded cause, then the two causes are independent and distinct and the concurrent proximate cause rule applies.”
Parnell, at 492-93.
In many cases, we plead causes of action outside of the damages suffered during the actual sexual abuse. These could include an invasion of privacy claim when an abuser would walk in the victim’s room while they slept, invasion of privacy for spying on them while they slept, changed and took showers, and detaining victims by using physical force to keep the victims isolated where they felt trapped and could not leave. These claims do not involve sexual abuse. These claims involve the abuse of power by the abuser and the failure of the organization to properly protect the victims. These damages would be covered under the general liability portion of the insurance policies, and the sexual abuse coverage would not apply to these acts and/or damages.
Another claim can be for acts or statements that are made after the victims come forth with their abuse. Often times, the organization and the abuser will attack the victims and their family. This could include false statements made about the victim and their family.
Many of the sexual abuse causes of action involve claims against religious organizations and church leaders who abuse their power and control over their victims. While the abuser is not subject to immunity, courts have often refused to allow claims to be brought against the church itself. For example, the Catholic dioceses was successful in shielding itself from claims brought by parishioners who were abused by catholic priests under their control. See Doe v. Catholic Diocese of Kan. City-St. “s, 432 s.W.3d 213 (Mo. Ct. App. 2014); Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). The court cites the separation of church and state provision of the Constitution as the reason for prohibiting the claims to proceed against the Church. In short, courts have stated that judicial inquiry into the reasonableness of clergy – what the “church should know” – creates excessive entanglement, inhibits religion, and results in the endorsement of one model of supervision, and that such excessive entanglement between church and state violates the First Amendment. See Gibson, 952 S.W.2d at 246-49.
However, recent cases have questioned the complete immunity asserted by religious organizations. Recently, in D.T. v. Catholic Diocese of Kan. City-St. Joseph, the Missouri Court of Appeals stated “Gibson does not bar all conceivable negligence actions against religious organizations…[i]f neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability.” See 419 S.W.3d at 148.
When filing a sexual abuse claim and insurance is involved, the victim’s attorney should try and find out if the insurance company is defending under a reservation of rights letter (which most do). A reservation of rights letter is issued by the insurance company when they agree to defend an insured by reserving the right to deny coverage at a later time. It is within the insurance company’s right to issue such a letter. However, this could lead to a conflict of interest for the insurance company when offered to settle a case on behalf of the insured. Often times, an insurance company will put their own interests above their insured when refusing to settle a case because they may believe that there is no coverage even if they lose the lawsuit. If the insurance company fails to act in the best interest of the insured then the insured may have a “bad faith” case.
During any point of the litigation, the defendant (insured) can request the insurance company remove their reservation of rights and defend them under the policy. If the insurance company refuses to remove the reservation, then the insured can refuse the insurance company’s defense of the case and enter into an agreement with the plaintiff regarding the claims. The agreement would then protect the insured by limiting any recovery to the insurance proceeds and/or any bad faith damages recovered against the insurance company. These are known as an 537.065 agreement, which are based on a Missouri statute.
The plaintiff’s incentive in entering into the agreement is that they can usually speed up the process of obtaining a judgment and submit the case to a judge or jury without the influence of the insurance company. The defendant is protected from having their personal assets exposed, but would have a judgment entered against them.
We have found these particularly useful in sexual abuse cases because there is usually a question of coverage. The insured is concerned about any potential excess verdict that they may be personally liable for paying. Both the insured and the insurance companies understand that the verdicts in abuse cases are substantial. Therefore, the insurance company is faced with the real risk of trying to settle the case or being responsible for paying a judgment that may be 10 to 100 times the amount of the insurance policy.
Representing clients who have been sexually abused is a very challenging job as a lawyer. Many of these victims have been in denial about the abuse and/or afraid to come forward about their horrific incidents. It is very difficult for them to completely tell the story to an attorney, who they have met for the first time. Initially, it is the attorney’s responsibility to make sure they explain the legal process to their client and get a clear understanding of what, if anything, filing a civil lawsuit can accomplish for the client. The end result, versus the difficulty of going through the litigation process, should be thoroughly discussed up front.
Although these are extremely difficult cases from a legal and emotional view point, our experience in representing sexual abuse victims who are strong enough to come forward has been very rewarding. Not every client has ultimately recovered a monetary settlement, but we have been successful in the majority of cases in meeting our client’s realistic goals. No amount of money will ever erase the horrible abuse they suffered, and continue to suffer, but in most cases, our clients have felt some form of redemption preventing the abuser from continuing to victimize others.
From a personal viewpoint, these cases are extremely emotional for many reasons. I am still amazed at the amount of abuse that still occurs today and the lack of due diligence in performing background checks on employees who work with the vulnerable. I am also mystified by a company that refuses to implement proper policies and procedures to protect young people or incapacitated people from suffering abuse by people who assert power or authority over these victims. Every time a potential client comes into our office, it is heart-breaking to hear his or her story. While we all hope the sexual abuse will stop, it will not happen without the justice system holding the abusers (and their responsible employers) accountable for their actions.