17/12/2019
In recent years, an increasing number of victims have asserted claims against schools, athletic organizations, Olympic governing bodies, and religious institutions, alleging sexual abuse and sexual misconduct. As a result of the influx of abuse claims (many of which allege abuse dating back many years or decades), most states have introduced legislation and/or enacted laws amending statutes of limitation for sexual abuse claims. In 2019 alone, forty-one states introduced legislation to reform their current statutes of limitations, and a total of twenty-four states have enacted new laws amending the statute of limitations for filing sexual abuse lawsuits.
New Jersey’s Amended Statute
Most recently, on December 1, 2019, a statutory amendment came into effect in New Jersey significantly expanding the limitation period for claims by adults who were sexually abused while minors. Adult victims are permitted to file civil claims within seven years of the date of discovery of their injury. The prior law, which had been in effect for decades, limited victims of sexual abuse to filing civil claims within two years of their eighteenth birthday, or within two years of the date of discovery of the abuse. The new law permits minor victims to file civil claims until the age of fifty-five, or seven years from the time they become aware of their injury, whichever is later.
The new law also creates a one-time, two-year window allowing victims to file previously time-barred suits alleging sexual abuse. Victims who were foreclosed from filing suits based on the prior two-year statute of limitations may now commence civil actions for sexual abuse at any time between December 1, 2019 and November 30, 2021, even if they are over the age of fifty-five.
Due to the “particular circumstances, source of injury and its discovery and damages relating to each occurrence or occurrences of sexual assault,” the law does not permit lawsuits alleging sexual abuse to proceed as class actions. Victims are required to seek relief on an individual basis.
In addition to expanding the statute of limitations, the new law includes carve-outs potentially exposing certain entities and organizations to liabilities for which they were previously immune. The new law amends New Jersey’s Charitable Immunity Act, NJSA 2A:53A-7, by increasing the potential civil liability of nonprofit organizations, as well as individuals, under certain circumstances. Pursuant to the law, nonprofit organizations “organized exclusively for religious, charitable, educational or hospital purposes” and their directors, officers, employees, agents or volunteers can be held liable for “willful, wanton or grossly negligent” acts or omissions resulting in sexual abuse. Thus, nonprofit organizations may face liabilities for negligent hiring, supervision, or retention of an employee, agent, or volunteer that led to sexual abuse. This amendment to the Charitable Immunity Act applies retroactively and, therefore, works in conjunction with the changes to the statute of limitations.
Finally, the law also creates a carve-out for the New Jersey Tort Claims Act, NJSA 59:1-1, et seq., which strips public entities, such as the State, school districts, and local government entities, from immunity for claims of sexual abuse. Thus, public entities may be held to the same standard of liability as applied to nonprofit organizations with regard to sexual abuse.
Comment
Based on this statutory amendment, dozens of new lawsuits alleging sexual abuse and misconduct have already been commenced in New Jersey courts. Many more are expected. To compare, in August 2019, New York State enacted its Child Victims Act, a similar statute of limitation reform, which permits a one-year revival window for previously time-barred civil sexual abuse actions. In the first three months following the enactment of the Child Victims Act, more than 900 new sexual abuse lawsuits were commenced in New York State.
Particularly, we can expect a flood of civil lawsuits against religious institutions, schools and universities, municipal and government entities, and employers within New Jersey, many of which will likely allege ongoing abuse that dates back years, if not decades. Such organizations are likely to seek coverage under general liability, directors and officers, and/or errors and omissions polices.
A number of potential coverage issues arise out of these sexual abuse claims including, but not limited to, timing of the injury, number of occurrences, allocation, knowledge-based defenses (i.e., lack of an occurrence, known loss, expected or intended exclusions), application of sexual abuse exclusions and coverage grants, and contractual indemnification. Although New Jersey courts are yet to extensively address such coverage issues in the context of sexual abuse claims, we believe that the newly-enacted sexual abuse legislation will provide the courts with an opportunity to affect coverage law in this area.
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