Recently Enacted New York Adult Survivors Act Presents Costly Perils for Policyholders and Their Insurers
On May 24, 2022, less than one year after the revival window of the New York Child Victims Act (CVA) closed, Gov. Kathy Hochul signed into law the Adult Survivors Act (ASA) that the New York Assembly passed one day earlier.
The Adult Survivors Act works in much the same way as the CVA—it opens a one-year revival window commencing on Nov. 24, 2022, for adult sexual abuse survivors to bring previously time-barred claims against their abusers and/or the institutions that allegedly allowed the abuse to happen. Unlike the CVA, however, which opened the window only to survivors of child-aged sexual abuse, the ASA opens the window to file suit for all survivors who were 18 or older at the time of abuse. The ASA will thus impact any entity that regularly engaged with adults in any capacity.
Potential ASA defendants will include those types of organizations already impacted by the CVA but will also encompass a much broader range of businesses: hospitality[1], entertainment[2], manufacturing, retail, health care[3], professional services firms, and the list goes on. The ASA will further escalate the existing trend of “vicarious liability” claims brought against parties other than the abuser under various theories, such as negligent hiring, negligent security, premises liability, and common law negligence, as well as aiding and abetting the abuse, transporter liability, and civil RICO violations. In the past, these types of claims were often dismissed but that is no longer the case in New York, and companies should proceed accordingly. New York courts are allowing sex abuse “vicarious liability” claims against institutions to proceed past the motion to dismiss stage[4] and even to verdict[5], and the passage of the ASA is likely to see more claims similarly overcome early motion practice.
To appreciate the seismic shift that the ASA will likely cause in the landscape of potential liability, one only need consider that defendants in CVA cases were largely limited to institutions that regularly engaged with children, such as schools, camps, religious organizations, and healthcare providers. Yet even within this circumscribed universe, the CVA’s impact on New York institutions and courts has been dramatic. When the CVA window closed on Aug. 13, 2021, nearly 11,000 lawsuits had been filed across New York state and federal courts.[6] The volume and expense of resolving these claims has led some organizations to file for bankruptcy, especially when insurance coverage is unavailable.
Likewise, the courts have been and will continue to be significantly impacted by survivor statutes like the ASA. The COVID-19 pandemic and the sudden onslaught of cases made an already slow process even slower. Whereas at the outset of CVA the courts aspired to have the cases trial ready within one year,[7] the current docket presents a far different outlook that does not fare well for survivors who prefer to pursue expedited litigation. As of July 2022, only a few CVA cases have made it to trial, and some estimates suggest that it will take several more years for the remaining CVA cases to work their way through the system. Similarly, the ASA directs the chief administrator of the courts to promulgate rules for the timely adjudication of revived actions, but if the progression of CVA cases is any indicator, the ASA cases are likely to experience a similar gridlock.[8]
If the number of cases filed pursuant to the CVA is any harbinger, companies need to prepare for a potential onslaught of similar cases brought by a much larger population of plaintiffs who will be represented by an experienced and aggressive stable of plaintiffs’ firms. These firms will be emboldened by the successful litigation strategies and multimillion-dollar verdicts and settlements coming out of the CVA and, like with the CVA, target those defendants with the deepest pockets—i.e., largest actual or perceived insurance assets.
Because defendants facing serious ASA claims can expect to expend sometimes tens if not hundreds of millions of dollars investigating, defending, and resolving sex abuse claims, much of which may be covered by insurance, insurance coverage considerations must play a significant role in every institution’s response to the ASA. A host of wide-ranging insurance issues must be tackled early on to maximize insurance recovery—efforts that will range from locating historical policies, to dealing with insurance companies that may now be in runoff, to charting a settlement or defense strategy with which an insurance carrier disagrees, to pushing back against coverage defenses raised by the carriers to avoid having to pay claims.
Even innocent mistakes on any one insurance coverage issue can, by itself, result in the reduction or even elimination of insurance, and navigating coverage issues becomes all the more difficult when set in motion at the same time as the investigation and defense of ASA claims, which can move quickly at the outset even if subsequently bogged down in the onslaught of new cases. In other words, proactively addressing the issues discuss below before the ASA takes effect is the key to success for insurers and insureds alike.
Types of Coverage That Will Typically Respond to Revived Adult Sex Abuse Claims
Entities and organizations facing potential liability for historical sexual abuse claims often face allegations that they negligently hired, supervised, or retained the perpetrator of sexual abuse. The most common type of insurance coverage likely to respond to these claims is an institution’s commercial general liability insurance (CGL). CGL policies are “occurrence based,” meaning the policy that was in effect when the alleged abuse took place will apply to the claim, rather than the policy in effect when a claim or suit was brought.
CGL policies generally provide coverage for bodily and personal injury caused by a company’s employees or as part of its services or business operations. A CGL policy typically covers the costs of a company’s legal defense and will pay on its behalf all damages for a reasonable settlement or judgment up to the limits of the policy. Many historical policies do not contain aggregate limits of liability, which significantly increases the coverage available. Moreover, many historical liability policies do not include defense costs within the limits of liability, so limits will remain intact despite mounting defense costs. Since the cost of defense can be substantial in sexual abuse cases, defense cost coverage can provide significant benefits to insureds. Even more beneficial for insureds facing potential ASA claims is that, unlike newer CGL policies, older policies from before the 1980s and 1990s that may be triggered for ASA claims do not contain sexual abuse exclusions.
Some claims-made policies, such as Directors & Officers (D&O) and Employment Practices Liability (EPL) policies may also respond to ASA claims. D&O policies provide coverage for “Wrongful Acts” of an institution or organization’s directors and officers. EPL policies provide coverage for claims asserted by employees based on employment-related misconduct of their superiors or co-workers. These policies are usually claims-made policies, meaning the policy that is in effect when the claim is brought controls. Unlike historical policies that usually do not include sexual abuse exclusions, present day claims-made policies often include exclusions that could preclude coverage for sexual abuse claims, including ASA claims. These policies also generally include exclusions for bodily injury and intentional acts. Nevertheless, depending on the language of the policy and exclusions, D&O and EPL policies may provide coverage for certain sexual abuse claims. See USA Gymnastics v. Liberty Insurance Underwriters, No. 20-1245, 2022 U.S. App. LEXIS 5185 (7th Cir. Feb. 25, 2022) (holding that D&O insurer was obligated to defend USAG in claims related to sexual abuse by Larry Nassar, where the intentional acts exclusion required a final adjudication, and Nassar was only adjudicated guilty as to some claimants, and the bodily injury exclusion contained an exception for certain claims alleging emotional distress and mental anguish).
Locating Historical Policies and Understanding Secondary Evidence Burdens
Because the CGL policies covering claims for sexual abuse will likely be as many years old as the claim itself, these policies will often not be available at the click of a computer button and will take time and effort to track down. Insurance coverage counsel and insurance archeologists can be efficient resources for conducting policy investigations. Often, companies will only be able to locate parts of insurance policies, such as a declarations page, or will only find references to old policies in old correspondence. All is not lost even if historical policies cannot be located; an institution should not assume that it does not have coverage just because it does not have its policy in hand.
New York courts generally allow policyholders to prove the existence of insurance through secondary evidence. Before being allowed to offer secondary evidence, however, the policyholder must establish that the loss/destruction of the policy was not in bad faith and that it has been “unable to locate the claimed policies, despite diligent searching and inquiry.” Once the insured has made this preliminary showing, courts may consider a wide range of secondary evidence, such as renewal policies from adjacent years, form policies from the relevant time period, excess policies that refer to primary policies, certificates of insurance, portions of policies, endorsements, letters discussing coverage, board of director meeting minutes, and more. Id. at 614; Burroughs Wellcome Co. v. Commercial Union Ins. Co., 632 F. Supp. 1213, 1216 (S.D.N.Y. 1986).
Recognizing that historical sexual abuse claims often raise missing policy issues, in response to the CVA, the New York Department of Financial Services called for insurers to “take the initiative to be cooperative so that victims may be compensated.”[9] Insurance Circular No. 11 also “encourages Insurers to do more than the minimum required” and “to act in utmost good faith to preserve and provide any relevant records to policyholders and other entitled persons, whether in connection with any lawful discovery process or otherwise.” We do not know yet whether the Department of Financial Services will issue a similar directive for the ASA, but policyholders who are concerned about locating historical policies should be on the lookout for such a directive.
Determining the Number of Occurrences
Once a policyholder has located policy evidence (be it primary or secondary), it will have to evaluate how much coverage is available. Depending how the number of occurrences is determined, a policy’s limits of liability can be multiplied many times over, resulting in a substantial amount of insurance coverage. The greater the number of occurrences, the greater can be the amount of coverage. In Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Co. of Pittsburgh, Pa., 21 N.Y.3d 139 (2013), New York’s highest appellate court determined that under the “unfortunate events test” that controls the number of occurrences in New York, each instance of abuse is a separate occurrence, resulting in significantly more coverage for the insured. The court explained: “[W]here, as here, each incident involved a distinct act of sexual abuse perpetrated in unique locations and interspersed over an extended period of time, it cannot be said … that these incidents were precipitated by a single causal continuum and should be grouped into one occurrence.” Id.
Insurers, particularly primary insurers with no self-insured retentions, frequently reject the position that sexual abuse claims against an organization constitute multiple occurrences to avoid paying additional limits of liability. Insurers are even more likely to argue that there is a single occurrence where they face huge potential exposure under historical liability policies that do not contain aggregate limits. To limit their liability, primary insurers contend that the relevant occurrence for purposes of determining the number of occurrences is the supervision, training, or hiring of the perpetrators, such that only one limit of liability applies.[10]
Common Insurance Coverage Defenses Raised by Insurers
Expected or Intended/Willful Acts Exclusions. Insurers also frequently raise both public policy (i.e., statutory schemes) and insurance policy exclusions to attempt to disclaim coverage for sexual abuse claims on the basis that they are uninsurable intentional acts. Among the most common insurance policy exclusions relied on by insurance carriers seeking to disclaim coverage for historical sexual abuse claims is the “expected or intended” exclusion. Most CGL policies exclude coverage for acts that were “expected or intended” from the standpoint of the insured.
When considering whether this exclusion applies, New York courts focus on the insured’s subjective expectations and intent from the standpoint of the insured.[11] Under this standard, New York courts generally hold that sexual abuse is not “expected or intended” where the insured defendant is an institution being sued for negligently hiring, supervising, or retaining an alleged perpetrator. See NYAT Operating, GAN Nat. Ins. Co., 46 A.D.3d 287, 287 (N.Y. App. Div. 2007) (“because [the insured’s] liability in the underlying action was based on its negligent hiring and retention … the sexual assault was covered … and the exclusion for injuries expected or intended from the standpoint of the insured does not apply.”).
In anticipation of this defense, and in response to ASA claims in general, companies would be wise to assemble and revisit both historical and modern internal policies addressing the identification and reporting of sexual harassment and assault of any kind and any related internal communications about said policies and/or reports made pursuant thereto. Concomitant with this effort, short of an internal investigation which is normally prompted upon receipt of a formal demand or suit, companies should also undertake efforts to get to know their own files and employees, both past and present. Speaking to internal counsel, risk managers, and human resources representatives can be an efficient starting place to understand where some potential liabilities may exist, which can then direct next steps in any informal investigation. Companies should expect that ASA plaintiffs (and insurers) will seek fulsome and burdensome discovery on matters like notice and expected/intended issues, and knowing your files before those time-sensitive requests come in is vital.
Late Notice. Insurers will often argue that notice is untimely if the insured knew of the claim sooner but did not report it. Under NY Insurance Law §3420, with respect to policies issued on or after Jan. 17, 2009, an insurer must demonstrate that it was prejudiced in order to disclaim coverage for late notice. For policies issued before this date, however, an insurer is not required to demonstrate prejudice. In the sexual abuse context, insurers may try to deny coverage by arguing that the insured was aware of the alleged sexual abuse before the passage of the revival statute but failed to notify the insurer. However, whether an insured’s notice obligations were triggered is a fact-specific analysis. McPartlon v. Continental Cas. Co., 2017 WL 4286280 (N.D.N.Y. Sept. 26, 2017). Accordingly, the first thing an insured should do when it learns of a claim or potential claim is notify the insurer to protect itself from such a coverage defense. The insured should provide the insurer with as much information about the claim as it can (e.g., complaints, demand letters, etc.), as this will facilitate a more efficient and meaningful discussion with the insurer over coverage.
Lack of Cooperation. Most policies contain cooperation clauses, which require an insured to cooperate with the insurer in the defense of the claim. If an insured fails to cooperate with an insurer, the insurer may attempt to disclaim coverage or pursue a declaration to this effect in court.[12] In analyzing whether an insured breached a cooperation provision, courts look at whether the insured made “truthful disclosures in reporting the [accident],”[13] whether the insurer “undertook efforts that were reasonably calculated to bring about the cooperation of the insured,” and whether the insured’s attitude after such cooperation was sought was one of “willful and avowed obstruction.”[14]
Even in jurisdictions with clear law as to the proper scope of the policyholder’s duty to cooperate, policyholders can fight back by arguing that unreasonable demands made in the name of the duty to cooperate are inconsistent with the carrier’s policy obligations, including its obligation of good faith and fair dealing.
Lack of Consent. Many insurance policies contain provisions prohibiting an insured from making any payments without the consent of the insurer. This consent requirement often covers both defense costs and settlement costs. If your insurance policy includes such a provision, avoid incurring any costs without obtaining prior consent from your insurer.[15] In other words, from “dollar one” and where applicable under the terms of the policy, insureds should work with insurers to select defense counsel and thereafter to seek the insurer’s approval on claim and investigation strategy that contemplates significant legal expenditures.
If the policyholder wishes to settle an ASA claim and the insurer refuses, generally speaking, there are three options for the policyholder, none of which are without risk, however: (1) offer to contribute the portion of the settlement the insurer will not fund; (2) settle the action with no insurer contribution, inform your insurer of your intent to do so, ask to waive any “voluntary payments” clause provision, and consider suing the insurer for breach of contract and where warranted, bad faith; (3) proceed with litigation but protect yourself from an excess judgment by assigning a bad-faith claim to the third-party claimant and asking them to agree not to execute against your assets.
Policyholders should proceed with any of these options with extreme caution. Liability contracts may expressly prohibit policyholders from making voluntary payments toward the defense or settlement of any claim or suit in any form. Also, policies may contain provisions that state that if the insured does not consent to a recommended settlement, the ultimate liability of the insurer can be capped to not exceed the amount recommended. Before you proceed with any of these options, you should always consult an experienced insurance coverage attorney.
Conclusion
What has become undeniably clear in the wake of the CVA is that companies fare best when they are prepared for a sex abuse claim before one is filed. Knowing in advance what liabilities may exist, what insurance may cover those liabilities, and which legal counsel you want to represent your interests will prove invaluable to ensuring your first response to any ASA claim is immediate, decisive, and impactful.
"Recently Enacted New York Adult Survivors Act Presents Costly Perils for Policyholders and Their Insurers," by Natasha Romagnoli, Steven J. Roman, Anna K. Milunas, and Amit Roitman was published on September 1, 2022 in the New York Law Journal.
Reprinted with permission from the September 1, 2022, edition of the New York Law Journal © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
Endnotes:
[1] A number of women have alleged sexual assault at the Harvard Club of New York by movie director James Toback between 1980 and 2012. The claims seek to hold the Harvard Club and the University accountable for failing to remedy the years of misconduct by Toback. Hayley Glatter, Five Women Say Director James Toback Sexually Harassed, Assaulted Them at Harvard Club, Boston (March 20, 2018, 11:40 AM).
[2] Dozens of women have also accused CBS of negligent supervision and retention arising from allegations of sexual abuse and misconduct by CBS chairman Leslie Moonves and CEO Harvey Weinstein. Mae Anderson, Former CBS Chief Moonves accused of more sexual misconduct, AP News (Dec. 5, 2018).
[3] One of the best-known examples in New York is that of Robert Hadden, the gynecologist who was employed by Columbia University Irving Medical Center and New York-Presbyterian Hospital. Dozens of patients, including minors and adults, alleged that they were sexually abused by Hadden and that that the institutions that employed him were warned about his dangerous propensities but failed to act accordingly. See, e.g., Jane Doe #3 et al. v. Columbia University et al., No. 154237/2019 (N.Y. Sup. Ct. April 23, 2019).
[4] See, e.g., PB-36 Doe v. Niagara Falls City School District, 152 N.Y.S.3d 242, 245 (denying motion to dismiss claimant’s negligent hiring, retention, and supervision claim); M.C. v. State, 163 N.Y.S.3d 741, 753 (N.Y. Ct. Cl. 2022) (same).
[5] Andrew Denney, Upstate NY Jury Awards $25M Verdict in Child Victims Act Suit, New York Law Journal (March 31, 2022).
[6] A Preliminary Report on the Child Victims Act, Child USA (Aug. 23, 2021).
[7] N.Y. Comp. Codes R. & Regs. tit. 22 §202.72
[8] S.66A/A.648A.
[9] Insurance Circular Letter No. 11 (2019), Department of Financial Services, New York State.
[10] See Mt. McKinley Ins. Co. v. Corning, 903 N.Y.S.2d 709 fn. 6 (N.Y. Sup. Ct. 2010) (denying insurer’s argument that all asbestos claims constitute a single occurrence).
[11] See Olin v. Lamorak Ins. Co., 332 F. Supp. 3d 818, 844 (S.D.N.Y. 2018) (“[T]he focus is on whether Olin subjectively expected and intended the specific damage that resulted from its waste-disposal practices.”); Jubin v. St. Paul Fire & Marine Ins. Co., 236 A.D.2d 712, 713 (3d Dep’t 1997) (despite claimant’s allegation that she “sustained serious and permanent physical injury and extreme emotional distress,” harm was not expected or intended where insured “did not mean any harm and ‘was just kidding around’”).
[12] Liberty Mut. Ins. Co. v. Roland-Staine, 21 A.D.3d 771, 773 (N.Y. App. Div. 2005) (reversing lower court’s decision that held that insured failed to cooperate with its insurer and therefore insurer had a right to disclaim coverage).
[13] Greater New York Mutual Insurance Company v. Utica First Insurance Company, 102 N.Y.S.3d 175, 177 (1st Dep’t 2019) (holding that insurer has no duty to indemnify because insured failed to “make fair and truthful disclosures in reporting the [accident],” which “constitutes a breach of the cooperation clause”).
[14] See Utica Mut. Ins. Co. v. Gruzlewski, 217 A.D.2d 903, 630 N.Y.S.2d 826 (1995).
[15] Federal Ins. Co. v. Stechman, 192 A.D.2d 531, 531 (N.Y. App. Div. 1993) (holding that insured was not required to obtain insurer’s consent before settling where there was no provision in the policy requiring such consent).