By Greg Moran
San Diego Union-Tribune
July 25, 2004

http://www.signonsandiego.com/news/state/20040725-9999-1m25clergy.html

Already fighting against a surge of lawsuits that could result in multimillion-dollar payouts, the Roman Catholic Church in California has opened a new front, quietly going on the offensive and attacking the very law that put it in legal and financial jeopardy.

Lawyers representing scores of plaintiffs who have sued dioceses across the state say the move has little chance of succeeding.

Still the offensive – led by the giant Archdiocese of Los Angeles – has opened a small window into some of the critical issues facing dioceses as they move forward, especially the key issue of how the church's insurers are reacting. Since all the cases have been tied up in court-ordered, secret mediation, little has been revealed about these issues.

Some plaintiffs' lawyers say the legal maneuver is the latest indicator of a tougher, sharper-edged approach to the avalanche of litigation threatening the dioceses.

"My perception is there has been a shift in strategy, and that strategy is consistent across the state," said Larry Drivon, who represents 450 plaintiffs suing dioceses up and down California. "Up until seven or eight months ago, cases were settling. But there's been a change in strategy, and because of that no cases have settled."

The lawsuit at issue was filed by a Colorado man against a priest and the Diocese of Davenport, Iowa. The unidentified plaintiff says he was molested by the priest while both were on a trip to San Diego in 1968.

The suit was filed in San Diego Superior Court to take advantage of a state law which lifted, for one year, the statute of limitations for bringing decades-old claims of sexual abuse.

Lawyers for the Iowa diocese moved the case to federal court May 25, and filed a countersuit attacking the constitutionality of the state law. A favorable ruling from a federal judge would knock out all the suits, including the roughly 100 claims that have been filed against the Diocese of San Diego.

Now, the Archdiocese of Los Angeles is trying to enter the Davenport case. In a nearly 100-page filing in federal court, the archdiocese says it should be allowed to intervene because it has the most at stake in any decision.

The move is supported by the San Diego diocese, said chancellor Rodrigo Valdivia. In a July 13 letter to local priests, San Diego Bishop Robert Brom called the law "fundamentally unfair."

Los Angeles is facing the greatest number of suits – about 500 – of any diocese in the nation. The filing contends the Roman Catholic Church in California – and the archdiocese in particular – were the "primary intended targets" of the law lifting the statute of limitations.

In unusually sharp language, the motion points the finger at a "media frenzy" of stories on the emerging abuse scandal and a small cabal of plaintiffs' lawyers who "specialize in suing the church" for passage of the law.

Soon after the motion was filed, the Catholic Bishops of California endorsed the attempt to overturn the law. In a statement, the bishops said the Legislature singled out the church, and the law "was designed to transfer massive amounts of the church's assets to self-interested attorneys."

The pointed language is typical of a change in the bishops' stance of late, said Del Mar attorney Irwin Zalkin, who represents scores of plaintiffs in suits against the San Diego diocese.

"There is more of a circle-the-wagons, let's not roll over so quickly and put up some obstacles," Zalkin said. "It's a palpable difference in the way things were being dealt with before."

Drivon and other plaintiffs' lawyers dismissed the bishops' attacks and said the Davenportchallenge has little chance of success. The law was modeled after one that allowed lawsuits against insurers for victims of the Northridge earthquake, even after the legal time limit had expired, Drivon said.

State and federal courts have upheld that law over the past several years.

Drivon denied the law was anti-Catholic, noting that organizations such as the Boy Scouts have been sued under the same law.

"The statute applies to all people," he said. "The word 'Catholic,' the word 'church,' does not appear."

Plaintiffs got a further boost July 16 when a state Superior Court judge in Alameda County tentatively ruled that the statute was not unconstitutional on its face.

But the judge also ruled the law may be invalid when applied to the specific facts of an individual case.

That issue is "one of the most significant contentions" of the Davenport suit in San Diego, said Donald F. Woods Jr., a lawyer for the Los Angeles archdiocese.

Woods also noted that the judge in Alameda County is a state court judge, and the case in San Diego is a federal challenge that will be heard by a federal judge.

Church officials, in Los Angeles and elsewhere, have continued to say they want to settle cases without a trial. San Diego lawyer Andrea Leavitt said challenging the validity of the law in federal court is counter to those assurances.

Leavitt said the church was trying an "end-run around the orders imposed on them by the state court," which have halted all litigation by either side while mediation talks continue.

Woods dismissed such criticism.

"The Davenport case will go forward with or without our participation and will become a legal precedent that will influence or bind all of our cases," he said. "If we want any input in the court reaching the proper result, we must intervene."

Aside from the legal strategy, the court documents also illuminate insurance coverage issues facing the Los Angeles archdiocese, and others as well.

Many claims go back decades, making it difficult for the archdiocese to track all of its coverage, according to a declaration from the insurance lawyer for the Los Angeles Archdiocese.

Records are incomplete, some insurers are denying they wrote policies, and a handful of companies that had insurance policies during years when priests allegedly abused victims are no longer in business.

At least one insurance company is balking at covering its portion of the claims, saying that had it known of the extent of the problem of priest abuse the church was dealing with, it would have reduced its exposure, the filing says.

The role of insurance companies in any settlement is crucial.

Last week, settlement negotiations between lawyers and the Diocese of Orange broke down. The lead plaintiffs' lawyer, Raymond Boucher, said insurers were holding up the settlements.

"The carriers are basically saying, not so quick," said plaintiffs' attorney Zalkin. "It's a squeeze-play position now. Plaintiffs are saying we want X dollars. The insurance companies are saying we don't have to pay these claims. And in the middle of that is the church, which is not willing to part with its assets."

A hearing on the Davenport challenge is set for Aug. 30 in San Diego federal court.

Greg Moran: (619) 542-4586; greg.moran@uniontrib.com