A group representing claimants alleging childhood sexual abuse want New York courts to take steps to alleviate the backlog of lawsuits brought under the state’s Child Victims Act (CVA), including possibly setting up dedicated courts or dockets to handle only CVA cases.
A report issued by ChildUSA estimated that 10,587 lawsuits were filed under the VCA, and the Coalition for Just and Compassionate Compensation (CJCC) estimates that roughly 94% of those claimants are still awaiting their day in court.
“This delay is causing immense distress and frustration among the survivors we represent, many of whom have already endured prolonged periods of suffering and trauma,” CJCC’s lawyers said in a letter to Joseph A. Zayas, the chief administrative judge of the New York State Unified Court System. Members of the CJCC include attorneys who represent sexual abuse survivors in litigation against public and private entities.
The group maintains that the judiciary now needs to prioritize the resolution of CVA cases.
“Unfortunately, the current pace at which these cases are being processed is undermining the very purpose of this important legislation. Survivors are feeling re-victimized by the slow-moving legal process, and some have even passed away before seeing their cases addressed,” claims the letter signed by Stephen Jimenez, a survivor and advocate, and David Catalfamo, CJCC executive director.
New York’s CVA allowed survivors of child sexual abuse to file civil lawsuits against individuals or institutions up until their 55th birthday. This “lookback window” to file lawsuits was closed in August 2021.
Of the 10,857 CVA lawsuits filed before the August 2021 deadline, ChildUSA determined that that an estimated 51% have been filed against religious organizations, 15.7% against youth services organizations, 15% against individuals, 2.3% against government entities and 1.9% against corporations.
CJCC acknowledges that the COVID pandemic probably contributed to court delays, as has what is sees as a shortage of judges and court staff. However, the victims’ group contends, the main problem is the tactic being deployed by private insurers, primarily Chubb, and to some extent the state itself for not stopping Chubb.
“A lack of judges and court staff is certainly a contributor, but it is our belief that the main reason these cases have been stalled is because of the outright refusal by insurers like Chubb to pay, bolstered by the Department of Finance’s continued inability to enforce their own guidance,” CJCC told Insurance Journal.
But Chubb rejects the argument that it is to blame for cases not moving forward. “The principal obstacle to victims receiving compensation is the Archdiocese of New York itself. Insurance covers accidents, not conduct that was tolerated or hidden,” the company said in a statement to Insurance Journal. “In these cases of alleged horrific sexual abuse, the Archdiocese has refused to provide documentation to what they knew about the abuse, when they knew it, and the lengths they went to cover it up. The Archdiocese has substantial financial resources to pay just compensation to victims today but has instead pursued a path of delay and attempting to shift away blame for their own acts.”
In cases involving the Archdiocese of New York, Chubb has balked at settling, maintaining that the alleged incidents of sex abuse do not trigger coverage because they were not accidents or occurrences caused by negligence but were instead the result of intentional, known or expected occurrences and thus fall outside of their policies. Chubb has also argued that coverage is not available because the church has not cooperated in its insurers’ efforts to assess the claims.
The New York archdiocese is facing more than 3,000 lawsuits alleging negligence concerning sexual abuse by clergy, lay people, teachers and others from the 1950s through the 1980s. Chubb has been defending 2,770 of the VCA lawsuits under a full reservation of rights.
The insurer recently succeeded in convincing a state appeals court that its arguments have merit and should not have been rejected by a lower court in cases involving the archdiocese.
“The relevant inquiry is whether the Archdiocese’s actions fall within or without the operative policies,” the appeals court said in an April ruling reinstating Chubb’s action seeking summary judgments that the lower state court had thrown out. “The complaint sufficiently alleges that recovery would fall outside the scope of plaintiffs’ duties to defend and indemnify if the Archdiocese had knowledge of its employees’ conduct or propensities.”
Chubb insurers have cited media reports, admissions by church leaders, investigations by 20 state attorneys general, and the underlying lawsuits themselves as evidence that the church “knew about the sexual abuse of minors, failed to stop it, covered it up, and then lied about it.”
The appeals court found that Chubb’s complaint also sufficiently pled a noncooperation defense.
The archdiocese has accused Chubb of seeking to “avoid financial responsibility based on an ‘Alice in Wonderland’ claim that proof of negligence is actually proof of intentionality.”
CJCC worries that if it is upheld on further appeal, the ruling favoring Chubb “represents the absolute opposite of the spirit” of the CVA and could put every CVA case covered by an insurance company at risk, resulting in even further delays for claimants.
CJCC is also frustrated with what it believes is the state’s inaction. In September 2019, the state Department of Financial Services issued a circular letter to inform all authorized property/casualty insurance entities that it expects them to “cooperate fully with the intent” of the CVA and “assess their exposures and act in good faith to address their liabilities.” The DFS guidance further states that all insurers with potential exposure to CVA-related legal claims are expected to “act promptly and in utmost good faith and to exercise best practices with their prior and current policyholders, and their respective claimants, including properly performing any and all duties to defend CVA-related claims.”
CJCC has for months called upon DFS to enforce its guidance and has also for the state attorney general and lawmakers to investigate insurers. But it says its appeals to the state have been met with silence.
“Five years after the passage of the CVA, when will it be our turn for justice?” asked CJCC’s Jimenez.
The CJCC has asked the courts to consider several proposals to address the backlog. They include:
- Set Trial Dates: Expedite trial dates for as many cases as possible.
- Increase Judicial Resources: Assign additional judges and court staff specifically to handle CVA cases.
- Establish A Dedicated CVA Court: Consider creating specialized courts or dockets solely for CVA cases.
- Regular Status Reports: Implement a system for regular status updates on the progress of CVA cases.
Topics New York
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