Child Abuse Crimes, Civil Claims, and Homeowner’s Insurance
Posted on by Michael Lowe.
In some Texas child sex abuse cases, the circumstances may provide for homeowner’s insurance coverage of resulting civil personal injury damage claims.
In Texas, according to the Children’s Advocacy Centers of Texas, statistics show that 1 in 10 of the children residing in our state will be sexually abused before their 18th birthday. Of course, any time of sexual behavior or contact with a minor is a crime. We’ve discussed various aspects of Texas child sex crimes before, see, e.g.:
- Sexual Performance of a Child: Criminal Charges under Texas Penal Code § 43.25;
- The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c) Part Two of Two: Is Texas’ Version of Jessica’s Law Unconstitutional? and
- Sex Crimes with Kids: Teachers and Students – It’s a Serious Felony in Texas.
However, of importance regarding these situations involving child sex abuse are the civil damage claims that may be available to the victim. Among them is the very common scenario where the abuse happens at the child’s home, with the mother’s boyfriend as the perpetrator.
Sadly, many Texas child sex abuse cases involve minor victims where the mother has allowed a known child predator to abuse her child (or children). Both the mother and the boyfriend may face criminal charges upon discovery of this crime. The mother will likely face an independent action filed by the Texas Department of Family and Protective Services (aka Child Protective Services or CPS) to terminate her parental rights, as well.
In these circumstances, if any abuse took place in the home or residence and there is a homeowner’s policy in place, then there may also be a third lawsuit in play. Here, a civil action may be filed alongside the criminal charges and the action to terminate parental rights. This third case is not a criminal matter. It is a civil claim filed in a Texas Judicial District Court on behalf of the minor child against the parent as defendant and policyholder.
Texas Supreme Court Ruling in King
The key case in this area of law is a 2002 decision by the Texas Supreme Court in King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002). King is the definitive case that deals with insurance policy coverage in these types of civil injury claims. It provides that the insurance policy carrier had a duty to defend its policyholder in a claim brought by the victim of an intentional assault on the policyholder’s premises. King, 85 S.W.3d at 193.
While the facts of King did not involve the sexual abuse of a child, the King ruling can be applied in cases where sexual assault was involved. King dealt with an employer’s insurance coverage for damages resulting from an employee’s criminal assault.
In a child sexual abuse matter, there is an analogous intentional, criminal assault brought about by the negligence (as well as gross negligence and negligence per se) of the policyholder, who is this instance is the parent and policyholder with homeowner’s coverage.
Of note, five sister state cases holding that sexual abuse of a child was an “occurrence” establishing coverage under the policy were argued by the plaintiff in the lower appellate decision, see King v. Dallas Fire Ins. Co., 27 S.W.3d 117, 125-126 (Tex. App. 2000) (quoting from the lower opinion):
- Roman Catholic Diocese of Springfield v. Maryland Cas. Co.,139 F.3d 561 (7th Cir.1998) (holding, under Maryland law, liability insurer had duty to defend Roman Catholic Diocese against allegations of parents that former priest abused their children, the court finding that the plaintiff’s alleged injuries were a kind of accidental occurrence);
- Silverball Amusement, Inc. v. Utah Home Fire Ins. Co.,33 F.3d 1476 (8th Cir.1994) (holding, under Arkansas law, an insurer is required to provide coverage and legal defense where complaint alleged employer’s acts of negligent hiring and supervision, even though employee committed intentional tort of sexual molestation of a child);
- Lutheran Benevolent Ins. Co. v. National Catholic Risk Retention Group, Inc.,939 F.Supp. 1506 (N.D.Okla.1995) (holding, under Oklahoma law, a church’s alleged negligence in retaining a priest after learning the priest had sexually molested a child was an event covered by the church’s liability policy that defined the term “occurrence” as an accident);[
- S. Fidelity & Guar. v. Toward,734 F.Supp. 465 (S.D.Fla.1990) (holding, under Florida law, insurer had duty to defend against allegations of negligent hiring and/or supervision of teachers who allegedly molested their students because alleged negligence was an “occurrence” within the policy definition); and
- Hanover Ins. Co. v. Crocker,688 A.2d 928 (Me.1997) (holding, under Maine law, insurer had duty to defend a mother against allegations she had negligently failed to prevent husband’s sexual abuse of their daughter).
Occurrence in the Policy Definitions
How does this work? It involves interpreting the policy’s contract terms, based upon the language of the insurance policy, as it applies in the abuse situation. Specifically, the interpretation of the term “occurrence” as defined in the insurance policy.
In Texas, an “occurrence” is defined in a standardized homeowner’s policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.”
The intentional assault of the minor child by the perpetrator (boyfriend) in the mother’s residence, as covered by the homeowner’s policy, constitutes “continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage,” and therefore an “occurrence” under the policy’s defined terms.
Importance of Proper Civil Pleading on Behalf of Child Sex Crime Victim
Of importance in these civil matters are pleading particulars which not only circumvent statutory caps in these cases, but also succeed in tapping the homeowner insurance coverage to cover the child’s damage claims. Consider the following:
1. Pleadings Can Incorporate Criminal and Quasi-Criminal Investigations
In addition to the investigations undertaken by law enforcement for the sex crime charges, there will investigations and the gathering of evidence by investigators for the Texas Department of Family and Protective Services. This evidence will be admitted into the judicial proceeding where the state seeking termination of parental rights based upon “abuse” as defined in Texas Family Code §261.001(1)(B)(D)(E)(F)(H) and Texas Family Code §261.109 (failing to report).
Findings in the termination case can support the civil pleadings, including establishing negligent acts by the defendant, such as alleging in the civil case for damages that the Defendant was negligent in the supervision of the minor Plaintiff by such things as:
- Placing or failing to remove the child from a situation that a reasonable person would realize requires judgment or action beyond the child’s level of maturity to protect himself from that results in bodily injury and a substantial risk of harm;
- Placing the child in or failing to remove the child from a situation in which the child is exposed to a substantial risk of sexual conduct harmful to the child; and
- Placing the child in or failing to remove her from a situation in which the child is exposed to acts of abuse committed against another child.
2. Damages Elements in the Petition
Damages may be pled pursuant to Texas Rule of Civil Procedure 47(c) with reference to Chapter 41 of the Texas Civil Practice and Remedies Code.
The plaintiff may seek damages of any kind, both economic and non-economic, as well as exemplary damages. Punitive damages can be sought that are uncapped because the parent-policyholder was criminally responsible for the sexual assault crimes on the minor (now Plaintiff).
Monetary relief can be requested for each year that the minor suffered sexual abuse (e.g., “10,000,000.00 or $1,000,000.00 for each year the minor Plaintiff was sexually assaulted”).
Additionally, penalties, costs, expenses, prejudgment interest, and attorney’s fees may be requested as part of the damages sought by the minor Plaintiff.
Exemplary damages can be recovered in these cases as an exception to the general rule found in Texas Civil Practice & Remedies Code Section 41.005, because the parent-Defendant’s acts and omissions make her a party to the perpetrator’s crimes under Texas Penal Code Chapter 7.02(3), having a “legal duty to prevent commission of the offense(s) and action with intent to promote or assist its commission, failed to make a reasonable effort to prevent the commission of the offense (i.e., sexual abuse/assault).”
No Cap on Punitive Damages
Under Texas Civil Practice & Remedies Code Section 41.008(c)(5)(6)(7) and (16), there is no cap on punitive damages recoverable for sexual assault, aggravated sexual assault, injury to a child and continuous sexual abuse of a child.
3. Care in Pleading: Homeowner Insurance Coverage
The facts that are pled in the Plaintiff’s Original Petition must include details, no matter how invasive or troubling they may be perceived by the reader. Included in the factual allegations in order to establish the acts are within the definition of “occurrence” in the homeowner’s policy are the following:
- Minor Plaintiff is the son or daughter of the parent-Defendant
- Date the sexual abuse began
- Age of the minor when the sexual abuse began
- Time period of the sexual assaults
- Number of times assaults occurred during this time period
- What the assaults involved (i.e., penetration, etc.)
- Where these assaults took place (specific addresses)
- Place of assaults as residence or home of the parent-Defendant
- Outcry by the minor to the parent-Defendant
- Failure of the outcry to be reported
- Outcry by the minor to third party (when, to whom)
- Report of the outcry to authorities
- Arrest of the perpetrator
- Conviction of the perpetrator.
Homeowner’s Insurance Policy Limits in Civil Child Sex Abuse Cases
In these civil child abuse case scenarios, once properly pled and supported with admissible evidence to prove up the elements of the civil action, settlement negotiations often occur. These discussions may happen prior to any advanced discovery (e.g., depositions) and without much courtroom litigation.
An aggressive attorney representing the child’s interest may convince the defense attorney and the insurance company representative to pay policy limits to avoid the case proceeding further.
Importance of the Stower’s Doctrine in Civil Claims for Child Sex Abuse Damages
In Texas, a longstanding legal doctrine called “the Stower’s Doctrine” is important for the child-Plaintiff in these kinds of civil child sex abuse cases. In short, it defines the legal duty of an insurer to exercise ordinary care in the settlement of claims to protect its insureds against judgments in excess of policy limits, as established almost 100 years ago in Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.Comm’n App.1929, holding approved).
It is time-honored Texas law (“the Stowers doctrine”) that insurance companies must settle civil injury cases within the policy limits if a reasonable settlement offer has been made. They have a legal duty to do so.
If the insurer fails to do so and refuses the plaintiff’s reasonable settlement offer, then the insurance company itself is liable not only for the policy limits stated in the homeowner’s insurance policy, but the company itself is responsible to pay the child-plaintiff any and all monies that are awarded over that policy limit amount.
In other words, in these cases should the insurer fail to respect a reasonable settlement offer, it may well pay the millions of dollars awarded by a jury in exemplary and punitive damages after a jury trial.
Child Abuse Civil Claims in Texas Courts
In Texas, after a conviction for sexual abuse of a child, there may be circumstances where an independent court case is filed seeking monetary relief for the child. These cases may involve significant damages with coverage available through a homeowner’s insurance policy.
Not every child sex crime criminal matter will have a parallel civil case seeking financial damages for the minor. However, each child sex crime criminal matter should be investigated to determine whether or not the minor has the possibility of a civil damage award.
For more information, please read: Sex Crimes in Texas: Criminal Defense Overview.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, ”Top 10 Mistakes In Sexual Assault And Indecency With A Child Cases.”
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