An insurance company covering Penn State has asked a Philadelphia court to declare it should not have to provide coverage or cover the university’s defense costs in a lawsuit stemming from the Jerry Sandusky sex-abuse scandal unless the abuse in the underlying case started in what appeared to be a narrow time frame.
According to a complaint seeking declaratory judgment filed by the Pennsylvania Manufacturers’ Association Insurance Co. in Philadelphia Common Pleas Court Tuesday, the insurer pointed to an “abuse or molestation exclusion” in the second of three consecutive general liability policies that the company said would excuse it from paying for the school’s legal costs.
That is, assuming that particular policy was triggered by the underlying lawsuit — Doe A v. The Second Mile . However, the insurer acknowledged, if it was established that alleged abuse by Sandusky, the Penn State football team’s former defensive coordinator, in the case started before March 1, 1992, then Penn State could claim coverage under a previous policy. Two other policies from 1992 and 2004 barred coverage, it said, despite contentions to the contrary in the university’s claim for coverage.
In Doe A — the first civil suit filed against Sandusky, the university and the coach’s The Second Mile charity — the 30-year-old alleged victim accused Sandusky of sexually abusing him “over 100 times” between 1992 and 1996. It does not mention a specific date when the alleged abuse started.
So, if the court agrees with PMA — and if the complaint in the underlying lawsuit alleges correctly — that would appear to leave Penn State with a two-month window to collect coverage for its defense in the case.
However, the complaint said, to the extent that Doe A alleges or proves “intentional acts” on the part of Penn State resulted in the abuse, an exclusion from the university’s “1991 Policy” would bar coverage “for such acts” as well.
One of Doe A’s attorneys said he is the only alleged victim she knew of claiming abuse before 1993.
Penn State initially sought coverage under its 2004 policy, claiming a “‘continuous trigger’” theory, according to the complaint, meaning that allegations in Doe A’s lawsuit triggered coverage under any policy from the time the victim was allegedly first molested through the time period in which he suffered as a result of the abuse.
“To the contrary, PMA contends the allegations of the Doe complaint trigger only one policy, the policy in place when the abuse of Doe A by Sandusky commenced and injury to Doe A was manifested,” the complaint said.
The complaint also points out that each count of the Doe A complaint seeks punitive damages, which it noted were not insurable under Pennsylvania law. None of the policies it provided Penn State provided such coverage, it added.
Jeffrey R. Anderson, a St. Paul, Minn.-based attorney representing Doe A, said he did not know the specific dates of his client’s alleged abuse, nor would he disseminate them if he did.
“We never really focus on precision of dates,” Anderson said. “Insurance companies do because they write contracts.”
“That’s not what we expect [our clients] to do; we expect them to work on the symptoms,” he added.
Anderson said his client would only take a position on the dispute between Penn State and PMA if it would benefit his case.
“If it becomes important to the best interest of our client to make sure there’s insurance coverage, we’ll certainly weigh in,” he said. “This is not likely a dispute that we’re going to take a position on.”
Doe A is the only alleged victim claiming abuse by Sandusky before 1993, according to Marci A. Hamilton, who is working with Anderson on the case.
Hamilton said that details such as the exact timing of the alleged abuse would come out through discovery, which, along with the rest of the civil advancements against Sandusky, is stayed pending the outcome of the coach’s criminal trial.
However, Hamilton added, the exact timing of her client’s case would not be the only factor in the outcome of the insurance company’s battle with Penn State.
“You really have to wait until all the paperwork comes before you know where the boundary lines are going to be drawn,” Hamilton said. “In my experience in sex-abuse cases around the country, it really comes down to contractual language.”
Steven J. Engelmyer, of Philadelphia firm Kleinbard Bell & Brecker, represented the insurance company and declined to comment on the insurance company’s complaint.
The complaint in the Doe A case was short on specific details. At a press conference in November, Anderson said several times that he wanted to protect the victim and avoid compromising any ongoing criminal investigations.
The plaintiff was a participant in one of the programs sponsored by The Second Mile, according to the complaint.
The complaint alleged Sandusky “recruited, groomed and coerced” the plaintiff, “showering him with gifts, travel and privileges.”
The complaint alleged Sandusky sexually abused the plaintiff “over 100 times” over four years “within Pennsylvania and outside Pennsylvania; in the facilities of Penn State, particularly the football coach’s locker room; at times within Philadelphia County; at facilities out of state connected with a Penn State bowl game; and at the Sandusky home.”
According to Anderson, during one of the alleged incidents in Philadelphia, the plaintiff told Sandusky he was going to go to the authorities and Sandusky threatened to harm him and his family if he did.
The plaintiff wrote in a statement read by Anderson at the press conference two months ago that he decided to come forward only after news of the grand jury report outlining the charges against Sandusky became public and he realized other children had been harmed.
When asked then whether he felt the suit was premature given the ongoing criminal investigations into the scandal at Penn State, Anderson said he believes a civil suit “can only help” those investigations.
Ben Present can be contacted at 215-557-2315 or email@example.com. Follow him on Twitter @BPresentTLI. •