New York Law Journal

  • Published On: May 10, 2024

In 2019, the New York State Legislature passed the Child Victims Act (CVA), and in 2022, it passed the Adult Survivors Act (ASA). Each statute created a “look back” period within which victims of sex abuse could bring previously time-barred claims against both (1) their abusers and (2) institutions legally responsible under various theories of secondary liability, including negligence in hiring, retaining and supervising the abuser. Thousands of CVA and ASA lawsuits have since been instituted, and—consistent with the statutes’ purposes— most of those lawsuits deal with abuse allegedly committed many years ago.

Responding to CVA and ASA claims requires the utmost care and sensitivity, so that past abuses can be meaningfully redressed and so that victims can achieve a measure of closure. The defense and resolution of an abuse case can also be a very expensive process. There have been multi-million-dollar awards, and the cost of litigating can by itself be quite substantial. Institutional defendants therefore must look for insurance coverage to meet these costs. Indeed, because many CVA defendants are charitable institutions with finite means, insurance coverage can be essential in order for victims of abuse to have a chance at a significant monetary recovery and in order for socially valuable charitable institutions to avoid bankruptcy.

For claims from the more distant past, defendants will typically look to their comprehensive general liability (CGL) policy for the year or years in question for coverage. Historical CGL policies are especially valuable to the policyholder in abuse cases, because historical CGL policies often have fewer exclusions and limits on liability.

However, it is often difficult for the defendant/ policyholder and for its insurance company to find an insurance policy issued decades ago. That is especially true where either party has since undergone a merger or the like. Similarly, it may be hard to find old policies where document retention policies call for the periodic destruction of old files, where offices have moved, where knowledgeable employees have retired, or where computer systems have been updated. For all these reasons, old policies may be missing or permanently lost.

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