Tuesday, August 13, 2019

Child Victims Act Actions -- Insurance Coverage Considerations

At midnight tonight (August 14, 2019), New York's Child Victims Act (CVA) takes effect.  The Act's summary states:
Provides that the statute of limitations for criminal prosecution of a sexual offense committed against a child shall not begin to run until the child turns 23 years of age; provides that a civil action for conduct constituting a sexual offense against a child, shall be brought before the child turns 55 years of age; revives previously barred actions related to sexual abuse of children; grants civil trial preference to such actions; eliminates the notice of claim requirements for such actions when the action is brought against a municipality, the state or a school district; requires judicial training relating to child abuse and the establishment of rules relating to civil actions brought for sexual offenses committed against children.
The Buffalo News published a good "What you need to know" review of the new law here.  Give it a read if you're not already conversant with the CVA's provisions.

Some years ago, New York's civil courts went electronic.  Bracing for the expected surge or torrent of CVA-revived suit filings, the New York State Courts Electronic Filing (NYSCEF) website posted this notice earlier today:

By the time you wake up and read this tomorrow, there will likely have been filed thousands of CVA lawsuits in New York's Supreme Court.  But you don't care, because your company (or any of its predecessor companies) never insured any diocese of the Roman Catholic Church, or the Boy Scouts of America, or any local New York school district, right?


The CVA revives previously time-barred civil actions not just against large institutions or organizations, but against anyone or any entity that is alleged to committed, been complicit in or directly or indirectly liable for acts of sexual abuse or molestation.

Like people who had homeowners policies when the alleged acts occurred.  Homeowners policies that most likely afforded occurrence-based liability coverage.  Homeowners policies that may have been issued by companies that no longer exist.  Homeowner policies that may have been lost.  Or destroyed.

Insurers receiving CVA lawsuits will need to make what may be a very difficult coverage review.  Considerations may include:
  • Was there a policy in effect at the time of the alleged injury?
  • If so, what were its limits and terms and provisions? 
  • Was there an "occurrence"?
  • Was there "bodily injury"?  
  • Did the alleged "bodily injury" occur over more than one policy period and, if so, how does that impact the coverage picture?
  • Any exclusions apply?
  • Late notice?
Policies dating back to 1963 (2019-[55+1]) may be implicated.  Do you still have records of such policies?  What if you don't but someone says your company (or one of its predecessors) covered one or more of the CVA suit defendants?  Whose burden is it to prove the existence and terms of the lost policy?  And to what quantum of proof?  

Over the next few weeks I'll be surveying New York case decisions addressing these considerations in the context of CVA actions.  Stay tuned.  

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