Age of Allegations, Balky Insurance Carriers Could Vex Lawyers Filing Sex Abuse Suits
The scouts, Catholic dioceses and parishes and other defendants are expected to settle many cases. But lawyers bringing these cases will have to contend with a variety of obstacles first.
December 05, 2019 at 05:53 PM
7 minute read
The Boy Scouts and the Catholic Church are the chief targets of dozens of lawsuits filed in New Jersey after a relaxed statute of limitations for child sex abuse suits took effect Monday.
As lawyers continue to file cases in the coming weeks, the sheer volume of litigation could have a massive impact on the Boy Scouts, the Roman Catholic dioceses and its parishes, and others as these entities struggle to defend themselves from the onslaught of lawsuits. Lawyers who represent abuse victims say their clients are compelling witnesses who are prepared to discuss the gut-wrenching story of how the abuse impacted their lives.
The Boy Scouts of America was named in at least 14 suits, and various Catholic dioceses in New Jersey and Pennsylvania were named in at least another 28 filed around the state between Monday and Thursday. Other entities hit with lawsuits include the Linden school district, Salem County, Westfield Area YMCA, and the defunct Admiral Farragut Academy boarding school.
Many of the cases are expected to settle, but lawyers bringing these new cases will have to contend with a variety of obstacles.
Monday was the effective date for legislation signed into law by Gov. Phil Murphy to permit civil suits for alleged sexual abuse that occurred decades ago. The new law provides:
- A two-year window for the filing of a civil case alleging adult or minor sexual abuse that occurred in the past.
- That anyone under 18 who has been sexually abused in the past be able to bring a cause of action within the next two years.
- That those who were sexually abused in the past as minors and who miss the two-year filing window be able to bring their cause of action until age 55.
- That those 55 and older who allege delays in connecting past abuse to damages have an opportunity to seek justice through the courts, a period of seven years from the point they made that connection.
New Jersey joins 14 other states that have waived the statute of limitations for victims of child sexual abuse.
The plaintiffs filing suits in New Jersey are nearly all male, and most are in their 50s and 60s. The suits detail abuse that occurred as far back as the 1960s in which many of the alleged abusers are dead. Some of the complaints are nonspecific about when the abuse occurred.
The new crop of lawsuits can be expected to trigger a round of disputes between the defendants and the various insurance companies that provided coverage at the time the alleged abuse took place, said Robert Chesler, an insurance lawyer at Anderson Kill in Newark. First, defendants may have trouble finding a copy of their policies from the relevant period decades ago, Chesler said. Those parties can use ledger entries and canceled checks to show they had coverage, he said.
New York state enacted a law similar to New Jersey's in August. There, the Archdiocese of New York filed a suit in July against roughly three dozen insurance companies that provided it coverage at various times, seeking a declaration that they're obligated to provide coverage and a defense against sex abuse claims filed under the new law.
The archdiocese filed that suit as a proactive measure after one insurance company, Indemnity Insurance Co. of North America and its parent company Chubb Group of Insurance Companies, notified the archdiocese that they didn't plan to defend the church against a lawsuit brought by a child sex abuse victim in April, and wouldn't provide coverage for the claims.
"There's going to be huge fighting between the defendants and their carriers," said Bruce Nagel of Nagel Rice in Roseland. His firm filed about a dozen child sexual abuse suits this week and expects to file another dozen shortly. Insurance disputes will likely prolong the resolution of the cases, since defendants are reluctant to settle without the agreement of their insurance carrier, Nagel said.
In addition, lawyers representing church-affiliated defendants will hope to extract an advantage based on the advanced age of the allegations, said Perry Dane, a professor at Rutgers Law School-Camden who studies religion and the law. Plaintiffs lawyers may find records are sparse when they seek to corroborate allegations of abuse from 50 years ago, said Dane.
"In some cases, even if a case is very old, they'll be able to find documents, or the victims will be able to testify in ways that will be credible, but there might be other cases where it's much harder to prove something that happened 20, 30, 40 years ago. That's the first line of defense," Dane said.
Lawyers filing sex abuse cases on behalf of plaintiffs in New Jersey this week say they aren't concerned about making a case based on 50-year-old abuse allegations.
"The names and dates are sometimes a little fuzzy, but the specifics of the abuse never are. That's what gives you the credibility," said Jay Silvio Mascolo of Rebenack, Aronow & Mascolo in New Brunswick. Mascolo expects to file 38 suits, which are being brought in conjunction with a Seattle firm, Pfau Cochran Vertetis Amala, that has extensive experience handling sex abuse cases.
"The challenge is not so much in proving what occurred," Mascolo said. "These guys are credible, they have therapy records, sometimes even witnesses. The challenge is legal liability against the [defendant] entity. You do need to establish notice," he said.
Any records of abuse allegations occurring before the abuse to the plaintiff is key to liability, and some institutions have such records, said Mascolo. Where such allegations exist, plaintiffs can often show the institution failed to deal with the issue in a direct manner.
A second line of defense for church defendants might be to argue that the legislation extending the statute of limitations is unconstitutional, said Dane. Lawyers for Catholic churches have made that argument in sex abuse suits filed in other jurisdictions, and they are likely studying it here, he said.
An extreme measure for the Boy Scouts, church-related entities and other defendants in response to the deluge of suits is bankruptcy, a step that a handful of Catholic dioceses around the country have taken in response to sex abuse litigation. The Boy Scouts are rumored to be considering bankruptcy, but "that may create a real problem," said Nagel.
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