(WV)
By Common Consent [Salt Lake City UT]
April 12, 2025
By Sam Brunson
Yesterday, Fox13 reporter Ben Winslow reported on a court ruling in the church’s lawsuit against its insurers demanding that they reimburse it for a portion of the church’s settlement with a number of victims of sexual abuse in West Virginia.[fn1]
I have a vague memory of the case, but haven’t looked at it closely. So my summary is going to come from the case. And the summary is this: in 2013, 12 children and their parents sued the church, a number of church leaders, and Michael Jensen and his parents. The plaintiffs alleged that Jensen had, during his teens and twenties, sexually abused the children, a crime for which Jensen was found guilty and sentenced to 35-75 years in state prison and 50 years of probation after being released.
Why the plaintiffs sued Jensen should be obvious. Why did they sue the church and several leaders in the West Virginia ward and stake where he lived? They alleged a number of things, including that they had failed to warn families about Jensen’s sexual abuse, that they had coordinated his living with families in the church, that the church had failed to report a reasonable suspicion of child sexual abuse, and that it had failed to adequately train its agents. As part of their suit, they alleged that the church had received several warnings about what Jensen was doing.
None of these details are incredibly important to the decision that was just handed down, though. In 2018, the church settled with the victims for an undisclosed amount.[fn2] It then requested that its insurers cover a portion of the settlement (or, if it lost on that, at least, reimburse its legal fees).
I want to raise two critical points right here. First, this case deals purely with the language of insurance contracts. There is no religious/First Amendment issue at all. This makes the case particularly interesting to me, because I’m particularly interested in the interaction of religion with the law when that interaction is unmediated by constitutional questions.[fn3] There is no claim that the First Amendment requires the insurance companies to pay, or that somehow it exempts the church from liability for an agent’s sexually abusing a child. This is straight-up contract intepretation.
Second, I’m not an insurance law attorney. I don’t think that’s critical here, because the court’s answer doesn’t appear to me to turn on anything insurance-specific. But I wanted to be clear about that.
So with those, what happened in this case?
The Church Lost
First things first: both the church and its insurers (National Union Fire Insurance Company of Pittsburgh, Pennsylvania and ACE Property and Casualty Insurance Company) filed motions for summary judgment. (Summary judgment is granted when one of the parties can show that there is no material disagreement about the underlying facts and that under the law they’ll win. It happens before a case goes to trial.) The court denied the church’s motion and granted the insurance companies’.
What Was the Dispute?
The dispute was over the meaning of the word “occurrence.”
Seriously.
See, the church’s insurance policies with the two companies obligated the companies to pay amounts in excess of “retained limit” that the church had to pay as a result of causing “bodily injury.” (There seems to be no controversy over the proposition that sexual abuse constitutes “bodily injury.”) And the contracts defined “retained limit” to mean payments in excess of a (redacted) amount for “each occurrence” of bodily injury.
For our purposes, then, the “retained limit” is basically like a deductible (though the court points out that, as a legal matter, there is a difference; that difference is immaterial for this blog post, though).
So What Does “Occurrence” Have to Do With All of That?
Both the retained limit and the amounts of the settlements are redacted, but the case is clear that jointly, the settlement exceeds the church’s retained limit. But each settlement, standing on its own, is lower than the retained limit.
So if all of the sexual abuse done by Jensen is one “occurrence,” the insurance companies are obligated to kick in some money. But if they’re separate occurrences, well, the church hasn’t met its deductible(-like amount), and the insurance companies have no obligation to pay.
So Why Is This a Hard Question?
Largely, because it’s a new question in Utah. It could theoretically go either way, and there’s no in-state precedent to guide the court or the parties.
So the court (and the parties) look to precedent from outside of Utah. And they find it, in large part from sexual abuse cases brought against various Catholic dioceses.
What Do the Parties Claim Constitute “Occurrences”?
The church’s position is that the liability arose because of the church’s negligence. That negligence was a single (in)action by the church. It compares its negligence to a previous case dealing with an electric utility company. Over a six-year period, a trucking company stole a portion of its oil. Even though each theft was a separate occurrence, and even though the various thefts happened during different one-year contracts, the court held that the various thefts over the six-year period constituted a single “occurrence.” Similarly, the church said, the sexual abuse of multiple children over several years constituted a single occurrence.
By contrast, the insurers argued that Jensen’s abuse of each child was a separate occurrence.
You Already Said the Church Lost. So Did the Court Adopt the Insurance Companies’ Theory?
I mean, that would be too easy, right?
The court looked at a number of jurisdictions, but ultimately really liked the Seventh Circuit’s test. The Seventh Circuit[fn4] didn’t adopt an all-or-nothing (that is, all abuse by a priest is one occurrence vs. the abuse of each separate child during each separate year is a separate occurrence) test. Rather, it adopted a presumption that each abused child represented a separate occurrence. But that presumption could be overcome, basically if the church didn’t have any warning.
That is, if a priest abused a number of children, but nobody told his superiors, that would represent a single occurrence. But if he abused children, the superiors found out, and they didn’t stop him, then abuse would be separate occurrences.
And that, the court said, is what happened in this case: the church was or should have been aware of Jensen’s actions, and didn’t stop him or warn other members. So the abuse of each child was a separate occurrence.
(There’s a little more nuance here, actually: the children and their parents had sued. The court said that because any recovery by the parents was traceable to Jensen’s abuse of their children, the recovery of the parents and children would be bundled into a single occurrence. As a practical matter, though, it didn’t make any difference—even bundling recoveries, no family received more than the retained limit amount.)
Anything Else?
There’s a short question about ambiguity. Basically, the church says that to the extent the definition of “occurrence” is ambiguous, Utah law requires the court to read it in a way that favors the insured. The court disagrees, saying the meaning of “occurrence” is unambiguous, so there’s no presumption in favor of the church.
So Where Does the Church Go From Here?
It has a couple choices. The first is to accept the district court’s ruling and eat the costs.
Alternatively, it could appeal to the Tenth Circuit, arguing that the district court was wrong to deny its motion for summary judgment or wrong to grant the insurance companies’.
Is that a good move? Well, like I said, I’m not an insurance law expert. To my eye, the vast majority of the opinion was pretty convincing. (The ambiguity part feels to me like the weakest part of the opinion, but it may be that I’d think differently if I knew insurance law better.)
Still, the opinion isn’t unassailable. It’s adopting a test from a different state and from a different circuit. That makes sense—where there’s no law on point, that’s how courts decide. But it means that there’s at least a chance that an appeals court would have a different view.
I have no inside information about what the church’s next move will be. The church told Fox13 that it’s reviewing its options. So we’ll see what happens next.
[fn1] I said this on Bluesky, but I’ll reiterate here: Ben is consistent in embedding judicial rulings in his stories. Including in this story. And I truly appreciate being able to both read his story and read the opinion itself. If you want to take a look yourself, you can scroll down to the bottom of his story and it’s there.
[fn2] The court did its redactions right, too. When I was in practice in the aughts, there was a minor scandal when somebody (I don’t remember whether it was a court or an attorney) filed a redacted document, but it turned out that if you highlighted and pasted the blacked-out portion, you could see the words. This court did it right, so I don’t know what the dollar amounts we’re dealing with are.
[fn3] In fact, this type of non-constitutional relationship between church and law is a major theme of my recent book, Between the Temple and the Tax Collector.
[fn4] I’m being a little imprecise here. The circuit courts are federal courts, while the law governing contract language is state law. So technically, the federal courts are predicting how they believe the relevant state supreme court would rule. But that’s going to be awkward to lay out every time, so I’m using imprecise shorthand.