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Navigating Sexual Battery and Other Intentional Tort Claims

How to avoid litigation and severity landmines

September 14, 2021 Photo

Intentional tort claims are flooding news outlets with tales of horrific instances of sexual abuse occurring in the health care industry. These acts fall within many different categories of civil litigation, resulting in various theories of liability and causes of action, oftentimes escalating to criminal charges.

From a litigation standpoint, the intrigue of these types of claims primarily stems from the enhanced damages available to plaintiffs and their attorneys, including penalties, punitive damages, and attorneys’ fees. As an added incentive, there typically is no cap on non-economic damages, leaving an unlimited amount of non-economic damages to add to the verdict or settlement. Plaintiffs’ lawyers are motivated by the collection of attorneys’ fees and can readily rack up an average of $800,000 to $1 million in fees prior to trial, with little evidence required to establish fee rate. Naturally, opposing counsel are also eager to establish necessary elements to warrant penalties and punitive damages.

Of course, the fear of publicity and the resulting damage creates an urgency in resolution of these claims in the face of a public relations nightmare. The victims certainly elicit great empathy, which also impacts the value of the exposure. The cases are nearly impossible to defend. In the face of these issues, it is important to timely determine a plan of action for resolution and correction.

Claims and Litigation Considerations

When faced with litigation involving sexual abuse or other extreme intentional torts, one must consider the facts as a whole to determine the circumstances of the incident. It is important to determine whether the perpetrator is an employee or independent contractor since this will play an important role in determining whether coverage issues exist. Coverage counsel should be consulted to determine whether a viable reservation of rights exists.

In some states, the standard of “course and scope” may be an effective argument to an insured’s liability. However, in other states, this standard is regarded very loosely and, often, the argument will fail, given that the tortious conduct indeed occurred while the employee was acting in their capacity as a caregiver.

Further, many complainants will bring causes of action for negligent hiring, training, and supervision, as well as causes of action for respondeat superior, vicarious liability, and agency theory. Thus, the employer may not escape the lengthy and costly litigation process regardless of the employment status and actions of the tortfeasor.

Once coverage has been established, it is important to explore whether there are any facts favorable to the defense. An evaluation of the parties must be considered to determine the credibility of each.

One must also consider whether the venue is one that will be favorable or present a danger to the defense of the case. Some venues may be more “plaintiff-oriented,” and may be prone to award runaway verdicts. If there is an arbitration clause in the contract, then consider whether enforcing the agreement will provide a chance at a better outcome and less costly result versus a jury trial.

Efforts should be made to curb the discovery process to prevent disclosure of damaging evidence. Oftentimes, the perpetrator may have a negative background or may have left employment on hostile terms. Early mediation with appropriate selection of a mediator will be essential to ensure that the neutral is strong enough to influence the party with client-control issues.

Many of these cases require referral to counsel specializing in administrative proceedings, such as a medical board investigation, as well as criminal counsel. Prior to engaging in discovery, criminal counsel can prevent the introduction of self-incriminating evidence. Additionally, moving for a stay on proceedings will also be crucial if a criminal investigation is underway.

Analysis of Liability Exposure

A strong public relations team is necessary in the case of a social media blitz. The employer must take immediate measures to ensure that the tortfeasor has been removed from employment and that training of all other employees is instituted. Should settlement attempts fail, more media coverage can be anticipated, making it more likely that it will be difficult to obtain a fair and impartial jury.

Early evaluation of damages is necessary, as well. Physical harm versus emotional harm can be just as costly in the face of litigation. In the case of sexual assault, the victim may be unlawfully touched and humiliated with no physical harm, but, nevertheless, the impact of the conduct can result in a settlement or verdict well into the six figures. The victim and circumstance will also play a role. The previous scenario can yield seven-figure settlements or verdicts if the victim is elderly, ill, or otherwise falls into a special class of protected individual pursuant to the Americans with Disabilities Act. Again, licensure and criminal concerns must also carry weight in the evaluation of exposure risks.

Risk Management Considerations

Careful screening during time of hire is essential. A recitation of references does no good unless one proactively contacts the references. Use of web services to run background checks also is useful. Once hired, training with a “no tolerance” policy must be mandated. Orientation, along with ongoing in-service training on the topics of ethics, anti-harassment, and anti-discrimination is necessary. Education as to civil and criminal punishment may also lead to a decrease in untoward behavior. If employees are aware that surveillance cameras exist throughout the common areas, then it can be assumed that negligent or intentional behavior will be significantly reduced.

Once litigation is in place and the allegations leaked to the news or public outlets, risk management must engage in mitigation tactics. Quick reaction, acknowledgment of responsibility, and no tolerance as well as a plan for corrective action are the essential ways to deflect the negative press attached to shocking ill behavior.

With the current trend in sexual assault matters, which is now providing victims with a much-deserved voice, litigation will be on the rise. Litigation involving intentional torts can translate to thousands, if not millions, of dollars. With the ever-changing laws and the increasing damages potential for plaintiffs and their attorneys, we can expect the number of claims for sexual assault and other intentional acts will continue to escalate. Proactively educating your staff and engaging in preemptive risk management education as outlined will assist in reducing litigation and claims severity in these horrific scenarios. 

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About The Authors
Multiple Contributors
Constance Endelicato

Constance Endelicato is partner at Wood Smith Henning & Berman LLP. cendelicato@wshblaw.com

Gary Leonard

Gary Leonard, MA, AIC, CCP, is senior vice president – director of account management at Gallagher Bassett Specialty.  gary_leonard@gbtpa.com

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