Unearth Coverage for Lawsuits: Dig for Historical Records, Plan for the Future
Many states have enacted legislation to expand their statute of limitations for child sexual abuse claims. Children aren’t always able to come forward at the time of abuse and are doing so now as adults. More and more cases are likely to come to light as victims of abuse and sexual misconduct feel supported, in some cases decades after the abuse took place.
Legal claims almost always include the organization a predator used to gain access to victims, whether as an employee, volunteer, coach, or teacher. Litigation can be very costly for an organization, even in cases that are ultimately dismissed.
Many organizations have insurance coverage to help defend against abuse allegations and pay for settlement costs. However, if the abuse happened years ago, it may not be the organization’s current insurance policy that covers the costs. Some organizations may find that coverage isn’t available at all. Other organizations simply may need to dig a little bit to find it.
The relevancy of changing statutes of limitations
Statute of limitation laws create a timeframe in which someone can initiate a legal proceeding from the date of an alleged offense. For victims who are minors, the statute of limitations for bringing a claim usually doesn't start until they turn 18. Today, states continue to enact legislation to expand their statute of limitations for child sexual abuse claims. A state may even decide to eliminate its statute of limitations.
Some states have created “revival windows” that reopen the statute of limitations for a set amount of time, allowing a survivor of abuse to bring a lawsuit for past sexual abuse1.A revival window can be created for a specific age limit (like 55), a specific time period, specific types of claims, or all three. It’s meant to counteract laws with a short statute of limitation so that abuse survivors can come forward when they are ready. It could be years before someone files a civil claim for child sexual abuse.
Dusting off old insurance policies to unearth coverage
With sexual misconduct claims, knowing the type of insurance you had when the alleged actions took place—occurrence or claims-made—could help you locate funds to pay for legal proceedings.
Even if an organization switched insurance carriers or a policy expired, there may be coverage if the alleged incident occurred within the policy period.
For a claim to be covered, it matters what type of insurance policy the organization had. A claims-made policy only covers accidents and incidents submitted while the policy was in effect. An occurrence policy provides coverage for accidents and incidents that occur during the policy period, even if the policy has since expired.
Think of it this way: with a claims-made policy, you are renting the coverage for a set time period. With an occurrence policy, you own the coverage for that time period forever.
If you cancel the policy or switch carriers, you likely would not have coverage for a current allegation that references a decades-old incident with a claims-made policy unless you purchased tail coverage, an expensive extension of the reporting period for your expired or canceled policy. But you likely would have coverage for a current allegation referencing a decades-old incident if you had an occurrence policy with sexual misconduct coverage at the time of the incident.
Here’s an example of how it works: Following years of therapy, a 50-year-old man is ready to file a claim that he was abused as a child in 1982. In his state, the statute of limitations expires at age 25. Recently, his state opened a 2-year revival window, allowing the survivor to bring his claim forward regardless of his age or the date of the alleged abuse.
If an organization knows it had an occurrence policy in 1982 with sexual misconduct coverage, there likely would be coverage to respond to the claim.
If an organization knows it had claims-made coverage in 1982, it likely won't have coverage under that policy.
Good documentation helps mount a good defense
Many abuse cases reference decades-old incidents. This means you may need to locate the historical documentation required to mount a defense. To prepare a defense for a lawsuit, the organization will be tasked with finding all relevant documents that pertain to the alleged incident.
To begin, think about how the organization has evolved over time. Look at changes to:
Leadership and employees.
The role of who’s responsible for recordkeeping.
How vendors, insurance policies, employment records, and other operational matters are documented.
A physical location, or operations expansion and mergers.
Any of these changes can impact how documents were stored, who stored them, and how consistently items were cataloged.
Get Organized: Become a document archaeologist
Think of unearthing old insurance policies and other essential documents as a gift to the future of your Christian organization. For example, when facing a claim, an organization may be tasked with locating all relevant documents, including:
The insurance carrier and the coverage in effect at that time.
Background checks, attendance sheets, and employment and volunteer applications.
Organizational policies and procedures.
Whatever the condition of your historical archives, there’s much you can do to organize what you can find and prepare for the future. The task is made easier if you understand the tools of the trade: what to keep and for how long.
WHAT TO KEEP Insurance policies. Researching historical insurance policies and other documents is called insurance archeology. When it comes to insurance policies and coverage, retain multiple copies of the policy and declarations pages whenever possible. If you find part of an old insurance policy or simply just the declarations pages, keep them even if the information is incomplete.
Locating all relevant insurance policy information often pays off. Even if specific coverage forms cannot be located, try to find any items or persons involved with the organization’s insurance. Look for an agent name, an insurance bill or receipt, proof of insurance, or documentation related to a previous claim filed. Former leadership and even real estate documents may prove fruitful in your search. Vendors that your organization worked with in the past may have required proof of insurance. A public library may be able to offer research tips, too.
Screening materials. Effective screening of an employee or volunteer consists of an application, background check, references check, and in-person interview. Instead of keeping all screening materials forever, consider creating a single master document. This document would include the person’s name, the length of employment or volunteer work, the screening procedures used, and whether the person passed all phases of screening.
Policies and procedures. Retain a dated copy of your policies and procedures, specifically related to screening and supervision. Be sure to save each version of your policies and procedures as you update the document throughout the years. You may need to explain what screening procedures were used during a set time period.
FOR HOW LONG
You may be tempted to store other essential documents forever, but that quickly can overwhelm staff resources and storage space.
Instead, consider creating a document retention schedule. Start with these resources:
Document Retention Schedule offers a list of personnel, payroll, corporate, and financial records to consider including in your records retention program.
Need more help?
The goal is to make it easy for any authorized persons in your organization to catalog, store, and find essential documents, both paper and electronic. It may be helpful when creating a historical archive to break your project into smaller goals. Give yourself time and grace to accomplish your objectives.
1 “Open Revival Windows & Age Limits Helping Adult CSA Survivors Today.” CHILD USA, 2021 CHILD USA, Philadelphia, PA. Updated November 1, 2021. https://childusa.org/wp-content/uploads/2021/01/Revival-Laws-Helping-Survivors-in-2021.pdf
Posted April 13, 2022 The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
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