How has the law changed? How does this change in law affect you? Will this impact other states’ laws? On April 26, 2010, Florida lawmakers passed a bill removing the statute of limitations (or time limits) for victims of child sexual abuse wishing to file a civil lawsuit. The Florida governor is expected to sign the measure into law. Though the new legislation encompasses more than a simple removal of the civil statute of limitations, this analysis will address only the civil limitations issues.

Due to our work in sexual abuse litigation and prevention, our firm closely watches legislative trends and changes in law related to child sexual abuse, particularly changes which may impact our church and non-profit clients. The passing of Florida’s HB 525 tracks an important legislative trend sweeping the United States, the proactive lifting of statutes of limitations; time limits within which a litigant must file a lawsuit in civil courts.

Florida: Abuse Defined

In Florida, “Sexual Battery” is defined as any oral, anal, or vaginal penetration or union with the sexual organ of another, or the anal or vaginal penetration of another by any other object, excluding reasonable medical procedures. (§794.011, F.S.)

Florida: Old Law

Florida’s old Statute of Limitation (§95.11, F.S., §95.031, F.S. and §95.051, F.S.) requires that a victim file a civil lawsuit on or before his or her 22nd birthday, with limited exceptions.

Florida: New Law

HB 525 amends §95.11, F.S., providing no time limitation for a civil cause of action for Sexual Battery (as defined above), when the victim was under the age of 16 at the time of the offense. The bill applies to all actions except those which would have been time barred on or before July 1, 2010.

Impact of the New Law

With rare exceptions, Florida abuse victims who have passed their 22nd birthday cannot bring a civil lawsuit under the old or new law. Abuse victims presently under age 22, abused before reaching 16 years of age, have no time limit within which to commence a civil action. As an example: a child victim of Sexual Battery at a church or child care facility in 1997, at the age of 5, has no deadline within which to file a civil lawsuit; the cause of action will never be time-barred. Under the new law in Florida, the possible liability exposure will never expire.

Other states will pattern legislative changes to follow this model. The Texas legislature considered the same bill last session, and will probably do so again in the upcoming session.

California and Delaware

Virtually every lawmaking body in the United States has, is or will address the issue of child sexual abuse time limitations. Legislative initiatives have come in many forms, some meeting strong opposition from religious organizations, insurance lobbies and other groups.

In California and Delaware, legislation involved the lifting of statutes of limitations for civil litigation made the effect retroactive, such that a victim could file suit regardless of age, notwithstanding that the suit would otherwise have been time-barred.

Understandably, insurance companies responded negatively to the retroactive measures. Underwriting decisions are largely based upon an insured’s potential exposure and risk. This legislation opened the door to countless lawsuits never considered during underwriting evaluation. And these lawsuits were cases tending to yield the highest payouts to plaintiffs.

The Roman Catholic Church was heavily impacted by the retroactive limitations removal in California. The settlement of clergy sexual abuse claims cost the Roman Catholic Church $660 million for the Los Angeles Diocese alone. The Catholic Church has lobbied heavily against legislative efforts that would revive time-barred claims or remove limitation periods. A bill similar to those passed in California and Delaware has failed to pass both houses of the New York legislature. Lobbying efforts on both sides of the issue have been enormous.

Legislative Trend?

In the recent past, lawmakers—like Florida—have been sensitive to the business concerns of insurance companies, while resisting the positions of religious lobbies. Florida’s HB 525 is an example of this balancing act: legislation lifting civil statutes of limitation without reviving time-barred claims. This response, though not optimal for insurance companies, allows an analysis of prospective claims during the underwriting process, rather than reviving claims in policy periods considered “closed” by brokers. Florida underwriters have the ability to evaluate risk moving forward, but must factor in Sexual Battery claims which will never be time-barred.

Florida entities must understand that exposure for sexual abuse liability claims will not expire. Entities outside of Florida need to understand that there are many other state legislatures considering legal changes similar to those just passed in Florida.