Prepare for Claims Brought Under State Reviver Statutes
It’s likely that if your jurisdiction passes a “reviver statute,” claims will be unavoidable. Proper preparation, however, will give your school, college, or university a chance to respond effectively and put its best foot forward.
Reviver statutes are state legislation enacted to allow adult survivors of childhood sexual abuse to bring civil claims — often negligence or assault and battery — after the statute of limitations has passed. Increased understanding about ramifications of abuse has driven passage of these statutes. Studies show that most children who experience sexual abuse don’t disclose it, or significantly delay disclosure, leaving many adult victims of childhood sexual abuse without recourse.
State laws’ windows and parameters for bringing claims vary, but most allow re-filing of civil claims previously dismissed on statute of limitations grounds. They also allow claims that are out of time to be filed for the first time. Moreover, some states have proposed extending or eliminating the statute of limitations for all child sex abuse civil claims. The most significant passages have occurred in New York, New Jersey, and California.
Consult With Counsel
The first and most important step to prepare for possible claims is working with an attorney experienced in investigating or handling claims of sexual abuse by employees. If your school’s regular counsel does not have experience in these claims, seek out an attorney who does.
Inventory Past Claims and Known Bad Actors
Review past sexual abuse allegations that were investigated, dropped, settled, or dismissed. This will help determine if some of these claims may return (in the case of dismissal for statute of limitations reasons) or if other possible victims were not identified at the time but may come forward during the reviver statute window.
Consult with counsel about these actions:
- Contact former administrators for information. Specifically, ask about rumors, other relevant investigations conducted, or other potential victims. Also ask about notes or other records former administrators might have that should be shared with the school. They may know the whereabouts of records you suspect are missing from school archives. Work with counsel to determine if additional investigations into this information are necessary.
- Reach out to former attorneys for possible files that could be useful in investigating or defending claims.
Opinions differ on whether institutions should proactively reach out to the overall school community requesting that child sexual abuse victims come forward. Any communication in this vein should occur after careful consultation with counsel and in the least intrusive manner possible so past victims are not re-traumatized.
Search for Documents
Many past sexual abuse claims pre-date the online recordkeeping era. If school personnel, student, or investigation files have not already been digitized, they may be in out-of-the-way or forgotten storage locations — assuming they haven’t already been discarded according to the school’s records retention policy. Do your best to locate these old physical files, then carefully search personnel and student files for relevant information. Something as simple as a list of personnel with dates of employment could prove useful in litigation. Preserve files you locate that may be relevant to a claim, discussing with counsel whether you can or should digitize them.
Understand Your Insurance Coverage
These claims of sexual abuse may implicate coverage that expired long ago. It is, therefore, important to gain as clear a picture as possible of the school’s past insurance coverage, including tracking down old paper policies, some of which may have been issued through a carrier or broker that no longer exists. It may take time to gain a full sense of possible insurance coverage. Your current broker may be able to help identify past coverage.
If you cannot easily locate policies, you may need to employ an insurance archeologist. These professionals are skilled in tracking down old policies and tracing coverage from one insurance carrier to another. Your counsel or insurance broker can help you contact the right person for your situation.
Engage a Crisis Communications Firm
Be prepared to respond to your school community and press inquiries if a claim is filed against the institution. Because reputational risk is such an important issue, striking the right tone and balance is key to any response. To effectively respond, proactively engage a crisis communications firm and develop a crisis communications plan.
Follow Legal Developments
The status of reviver legislation in states changes with each legislative session. Even when reviver statutes fail to pass, they may be introduced again. Further, some states are considering amending recent reviver statutes to expand the claims window or revise the statute of limitations. Finally, state-specific court challenges may impact the reach of these laws. It is important to work with your counsel to monitor changes that may affect your school.
Proper preparation takes time. Your state may have already passed a reviver statute — in that instance, you may have little time to take the steps outlined above. However, if legislation is pending in your state, begin these preparations now so you are ready when legislation passes and the claim window opens. Proper preparation may not stop claims, but it can provide your school a chance to respond effectively.
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About the Author
Heather Salko, Esq.
Manager of Risk Research
Heather oversees the development of risk research publications. Her areas of expertise include employment law, Title IX, and student mental health. Before joining the Risk Research team, she practiced employment and insurance coverage law and handled UE liability claims for more than a decade.