When a survivor of sexual abuse brings a claim against an alleged perpetrator as well as a claim of negligence against the alleged perpetrator’s employer, the employer’s liability insurance is often one of the primary sources of monetary relief, enabling the survivor to obtain a meaningful recovery. However, insurance companies will sometimes try to avoid paying claims by saying the employer “expected or intended” the alleged abuse to occur—a coverage defense that should not apply in most situations.

Various laws establish that the insurance company bears the burden of proof when attempting to deny coverage based on an exclusion for “expected or intended” harm. These exclusions often specify “this policy does not apply to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” As the New York Court of Appeals ruled in Tonoga, Inc. v. New Hampshire Insurance Co. in 2022, an insurance company attempting to deny coverage on such grounds must establish that the exclusion, subject to no other reasonable interpretation, unambiguously applies to preclude coverage.

In the absence of an exclusion, some insurance companies argue that the policyholder has the burden to prove that it did not expect or intend an injury to occur. However, even without an express exclusion, the insurance company still bears the burden of establishing that the policyholder expected or intended the harm caused. As the Vermont Supreme Court ruled in 2001 in State v. CNA Insurance Companies, “if no evidence of intent to harm exists, then the policy is construed in the light most favorable to the insured.”

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