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(Article from Insurance Law Alert, January 2018)

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A West Virginia federal district court ruled that claims alleging sexual and physical abuse, malnourishment and educational neglect constitute multiple occurrences.  Brotherhood Mutual Ins. Co. v. Bible Baptist Church, 2017 WL 6061979 (S.D.W.Va. Dec. 7, 2017).

Two students at a boarding school run by the insured church filed separate complaints alleging abuse, malnourishment and educational neglect.  Both complaints also alleged that the church was negligent in its hiring and supervision of the school staff.  Brotherhood Mutual, the church’s insurer, sought a declaration that the students’ claims constitute one occurrence under the policy.  The court disagreed, ruling that the claims constitute five separate occurrences under West Virginia law.

The court applied a “triggering approach” that focuses on “the event for which the insured becomes liable, not some antecedent cause of the injury,” in order to determine the number of occurrences.  The court reasoned that each student’s sexual abuse claim constituted a separate occurrence because the victim and alleged perpetrator were different in each case.  The court further explained that the events that triggered liability were the acts of each alleged perpetrator, rather than the church’s negligent supervision.  However, the court ruled that “each subsequent instance of sexual abuse by one perpetrator against one child falls under the same occurrence as the first instance of sexual abuse.”  In so ruling, the court relied on the policy’s definition of “occurrence” (“an accident and includes repeated exposure to similar conditions”) as well as a separate policy provision stating that multiple sexual acts will be considered a single act if undertaken by the same perpetrator.  

The court also held that the physical abuse claims constitute a separate occurrence from the sexual abuse claims.  The court reasoned that the physical abuse claims did not arise out of the same conditions as the sexual abuse claims and were based on the alleged conduct of a different staff member.  However, unlike the sexual abuse claims, the court determined that all physical abuse claims comprise a single occurrence because liability was triggered by a single source – the abusive behavior of a single individual.  Applying the same reasoning, the court concluded that the malnutrition claims and the educational neglect claims were separate occurrences from the sexual and physical abuse claims, but that all malnutrition claims were a single occurrence (based on the alleged failure to feed the students) and all educational neglect claims were a single occurrence (based on the school’s implementation of an improper curriculum).