C.a. Revives Sex Abuse Suit, Citing Insurance Code Provision

By Kenneth Ofgang
Metropolitan News-Enterprise
August 28, 2012

http://www.metnews.com/articles/2012/doe082812.htm

An alleged victim of childhood sex abuse victim who received assistance from the defendant’s insurer years ago may claim the benefit of an Insurance Code provision that tolls the statute of limitations, the Court of Appeal for this district ruled yesterday

Div. Eight revived an action brought against official of the Roman Catholic Church by a man who claims he was abused by a parish priest in 1987 and 1988 when he was 12 or 13 years old. He retained counsel in 2008, he alleged, the same year he discovered that the molestation had caused adult-onset psychological injuries.

The plaintiff, identified as John Me Doe, further alleged tolling of the statute of limitations under Insurance Code Sec. 11583. The statute provides that an advance or partial payment of damages by an insurer is not an admission of liability, but that if the injured party is not represented by counsel, the insurer must advise that party in writing of the statute of limitations.

Failure to do so, the law says, tolls the statute until notice is given.

Went to Counselor

Doe claimed in his complaint that in 1988, the priests encouraged him and his parents to see a counselor, which he did. The one and only session was with a therapist sympathetic to the church, he alleged, and was paid for by the church’s insurer.

The session, he pled, was part of a design to protect the priest, whose activities were known for some time and who the church encouraged to flee before he could be arrested.

The defendants demurred, contending that the claim was time-barred because it was not filed during the one-year revival period.

Under the 2002 amendment to Code of Civil Procedure Sec. 340.1, victims of childhood sexual molestation whose claims were otherwise time-barred—generally those over 26 years of age—were allowed to sue responsible entities during the year 2003.

Demurrer Sustained

Los Angeles Superior Court Judge Emilie Elias sustained the demurrer.

Justice Laurence Rubin, however, said the 2002 legislation did not render Sec. 11583 inapplicable to claims of childhood sexual abuse.

The trial judge, he said, misread Quarry v. Doe I (2012) 53 Cal.4th 945. The case held that the plaintiffs, who missed the 2003 window, could not rely on earlier versions of the code section to plead that their claims were timely.

There is “no inconsistency” between Sec. 340.1 and the Insurance Code provision, the justice said, because Sec. 340.1 did not deal with tolling.

“A tolling provision is not inconsistent with a statute of limitations – it simply stops the time period from running under certain specified conditions,” he explained. “If Insurance Code section 11583 applies, it too will stop the clock from running under Code of Civil Procedure section 340.1.”

Statute Explained

The justice went on to say that the allegation that the insurer paid for the one counseling session was sufficient to plead the applicability of Sec. 11583.

“If the plaintiff in an auto collision case had a wound that left a scar, and the defendant told the plaintiff to consult with a plastic surgeon about removing the scar, surely the defendant’s payment of the surgeon’s bill would be advance partial payment of the plaintiff’s damages,” Rubin said. “An offer of counseling like the one defendants allegedly made in this case was inferentially made in recognition of the fact that the plaintiff suffered some emotional scarring, which the counseling might alleviate.”