There is an ongoing national trend to revive time-barred civil child sexual abuse claims which will likely result in insurers continuing to receive a large number of sexual abuse claims in 2020. One recent result of this trend is the filing on January 6, 2020 of the lawsuit captioned Does v. Boy Scouts of America, Case No. 20-cv-00017, in the U.S. Dist. Court for the District of Columbia. In the Does Lawsuit, eight plaintiffs seek to recover damages from BSA for abuse the plaintiffs allegedly suffered at the hands of BSA scoutmasters or scout leaders. 

The plaintiffs admit that they were abused outside of the District of Columbia and that their claims may be time-barred under the statute of limitations applicable in the states where the abuse occurred. However, the plaintiffs are asking the District Court to apply the District of Columbia’s revival statute, which recently opened a “window” for filing previously time-barred civil child sexual abuse claims. The “window” stays open until May 3, 2021 (D.C. Law 22-311).

According to the plaintiffs, BSA was founded in the District of Columbia, BSA is a corporation chartered by Congress in the District of Columbia, BSA is domiciled in the District of Columbia as a matter of law, and BSA is statutorily required to report to Congress in the District of Columbia. Therefore, the plaintiffs allege, the District of Columbia has an interest in applying its own revival statute to provide justice to abused individuals, who would otherwise be denied a remedy by the happenstance of where they were abused. If the District Court agrees that the District of Columbia revival statute applies to BSA-related abuse that occurred in other jurisdictions, then there will likely be a flood of litigation in the District of Columbia by individuals who allege they were abused by scoutmasters or scout leaders. 

The District of Columbia is only one of several jurisdictions that have recently revived time-barred civil child sexual abuse claims. Several of the “windows” close in 2020, which means that plaintiffs have a strong incentive to bring their claims soon. The states that have passed revival statutes opening a “window” for filing previously time-barred civil child sexual abuse claims include:

These revival statutes are generating a significant number of new lawsuits.  For example, news reports indicate that, in New York alone, over 1,300 child sexual abuse claim lawsuits were filed from the date the “window” opened on August 14, 2019 until the beginning of 2020. See, e.g., Cayla Harris, Bill Would Give Survivors Another Year To File Child Victims Act Claims, Albany Times Union, January 5, 2020.

At least one defendant, the Diocese of Rockville Centre, has challenged the revival statute. The Diocese has moved in 44 related cases to dismiss allegedly revived claims based on the argument that the revival statute violates the due process clause of the New York State Constitution (see, e.g., Ark3 Doe v. Diocese of Rockville Center, Case No. 900010/2019, pending in the Supreme Court of the State of New York, Nassau County). Specifically, the Diocese has argued that the due process clause of the New York State Constitution only permits the revival of time-barred claims in exceptional circumstances where the claimants were previously prevented in some specific manner from asserting timely claims.  Briefing on the Diocese’s motions is ongoing, and reply briefs are to be submitted by January 24, 2020.

Finally, Vermont has gone a step further than creating a revival “window;” in a bill signed on May 13, 2019, Vermont completely abolished the statute of limitations for civil child sexual abuse claims (12 V.S.A. § 522). The new statute provides that the elimination of the statute of limitations is fully retroactive, which means that an action based on childhood sexual abuse may be brought at any time, even if it would have been barred by the prior statute of limitations. However, if the defendant is an entity (rather than an individual), the plaintiff can recover only if there has been gross negligence on the part of the entity.

BatesCarey is presently engaged in assisting clients handling numerous high exposure child sexual abuse claims. In fact, last year the U.S. Court of Appeals for the 9^th Circuit affirmed a summary judgment ruling holding that BatesCarey’s client was entitled to recover over $3.3 million from another insurer that had refused to participate in BatesCarey’s client’s settlement of several related sexual abuse claims. If you have any questions about insurance issues related to the revival statutes referenced herein, please contact Michael H. Passman.