Tennessee Subscriber

A

The ISO commercial general liability policy does not specifically exclude sexual abuse or molestation. However, the first exclusion on the policy reads as follows:

This insurance does not apply to: “a. Expected or Intended Injury — 'Bodily injury' or 'property damage' expected or intended from the standpoint of the insured. This exclusion does not apply to 'bodily injury' resulting from the use of reasonable force to protect persons or property.”

This intentional injury exclusion comes into play when sexual molestation coverage is sought under the standard CGL policy. In general the courts have ruled that sexual abuse or molestation is intentional and, therefore, excluded under the CGL policy for the perpetrator.

Coverage for the employer or supervisor of the perpetrator may be available under the CGL form under the theory that the employer or superior did not “intend” for the injury (the sexual abuse) to occur. Therefore, there could be coverage under the CGL form for the superior's vicarious liability if a person under his or her direction sexually molested or abused a third party. Details of the specific incident, however, would have to be reviewed to be sure that the intentional injury exclusion would not apply to the superior, as well.

There is an additional endorsement that may be attached to the CGL form that specifically excludes coverage arising from sexual abuse or molestation for both the perpetrator and the employer/supervisor. This endorsement, CG 21 46 07 98, states that the insurance does not apply to bodily injury, property damage, advertising injury, or personal injury arising out of 1) abuse or molestation of anyone while in the “care, custody or control of any insured,” or 2) for the negligent employment, investigation, supervision, reporting or failing to report, or retention of a person for whom any insured is or was legally responsible and whose conduct would be excluded under part one of the endorsement. Therefore, endorsement CG 21 46 specifically excludes sexual abuse or molestation coverage for both the perpetrator and any insured who is responsible for the his or her actions.

Separate coverage for sexual abuse and/or molestation is available in the market place. Therefore, we believe that you are taking reasonable precautions in requiring that both CGL coverage form and sexual abuse coverage are provided by those who use your employer's facilities.