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Insurance Coverage Law
The Sexual Abuse Survivors Statutes And the Missing Insurance Policy
In response to changing attitudes towards sexual abuse survivors and reporting, many states have passed laws eliminating, or significantly expanding, the statute of limitations for civil sexual abuse claims and/
or providing revival periods during which victims can bring previously time-barred claims. These “Child Victim Acts” (CVAs) provide a remedy for sexual abuse victims who, for a variety of reasons, were unwilling or unable to confront their abusers within a more traditional limitation period; they simultaneously
create significant issues for institutional defendants and their insurance companies who are now being compelled to track down potentially decades-old liability policies to evaluate coverage for the newly- revived claims.
At least twenty-four states have enacted revival statutes and/or expansive statutes of limitations laws,
and similar bills are pending in myriad others2. Perhaps most recently, the “Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022” (Public Law No. 117-176) was signed by President Biden on September 16, 2022; this Act became effective on September 16, 2022, and abolished the statute of limitations for over a dozen federal civil causes of action relating to child sex abuse. Experts believe this federal legislation may prompt state legislatures, previously reluctant to consider such acts, to respond in kind. At least one advocacy group has called for all U.S. jurisdictions to adopt the “gold standard,” which they describe as the elimination of all criminal and civil SOLs and the revival of all previously-expired civil claims3.
In practice, revival claims are being brought against not only the abusers, but also the entities that had employed them, including churches, school districts, and other employers. Because commercial general liability (CGL) insurance is occurrence based, these entities are turning to insurers for coverage based on policies in effect when the abuse occurred. In cases alleging abuse that occurred decades prior to reporting, any relevant materials would have been created long before electronic recordkeeping had become common practice and years beyond the document retention period for most companies. Accordingly, the potentially applicable policies might no longer be available.
2 See https://childusa.org/wp-content/uploads/2022/07/12.16.2022-2021-SOL-Report-FINAL.pdf
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FDCC ANNUAL INSIGHTS 2023