ETERNAL TORTS – ETERNAL INSURANCE?

 

Allegations of sexual abuse, especially of children, by church members or church leaders are painful and difficult cases that will scar a congregation sometimes for decades.  Nevertheless, there are limitations on lawsuits that sometimes allow a wrongdoer to escape secular punishment.  One type are the statutes of limitation that require a lawsuit or criminal charges to be filed before the expiration of a length of time generally imposed by legislation.  Statutes of limitation are based on the recognition that witnesses die or age beyond retrieval and documents and scientific evidence age beyond usefulness or are lost.  [Try converting an uncorrupted photo, image or video from a format used before Y2K, for example, much less a corrupted data file.]  But, sometimes the pain of the victim is permanent.

 

 In Lewis v Bellows Falls Congregation, Slip Op. (D. Vt., 2017), the statute of limitations provided by state law for claims of “childhood sexual abuse” is six years beyond the age of majority (age 18) or from knew or should have known (i.e., the discovery rule).  In the Lewis case, the sexual abuse was known before the victim reached 18 leaving the 18 year old six years to file a lawsuit.  But, the victim did not file a lawsuit until nine years after reaching age 18.

 

The victim argued that the alleged fault of the church was not discovered until some years after the abuse which should have extended the statute of limitations under the discovery rule.  However, because the abuse occurred in the home of the wrongdoer and the victim was not present in the home of the wrongdoer on a church function, the church had no duty monitor the wrongdoer (or ability to monitor).  The victim was in the home of the wrongdoer through no fault of her own, or her parents, but that did not mean the church had control over the wrongdoer in the wrongdoer’s home.  Had the abuse been on church property or at an official church function, there might have been a question of fact for a jury to consider regarding the responsibility of the church.

 

 This outcome would have been the same for secular organizations like schools and day care providers.  Just because two families meet at some organization like a church or school and develop a relationship outside of the purview of the organization that leads to sexual abuse does not usually alone represent “agency” or “control.”  “Here, the Court can discern no evidence that True was continually subjected to the will of … the Congregation … .”

 

One lesson churches should take from these cases is that liability insurance (which will pay the legal fees to defend the case) should be maintained year in and year out with no gaps and for these types of cases should have very long “tails,” if needed.  Well trained insurance agents understand and can solve these issues affordably.  Any doubt should be resolved by consulting a second insurance agent independent from the first or legal counsel that is knowledgeable about insurance policy lore.

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