HELENA — Attempts to settle allegations that hundreds of Montanans were sexually abused as children by Roman Catholic clergy have been stymied by challenges from the church's insurers over which claims they are obligated to cover.
So attorneys representing the 360 alleged victims, along with lawyers for the Helena diocese, the Ursuline Sisters of the Western Province and District Judge Jeffrey Sherlock began laying out plans Wednesday for the first of what could be many trials beginning in December.
Attorneys for both sides said the outcome of the initial trials — unless the cases are resolved first — could act as a bellwether to gauge the extent to which Montana jurors would find the church liable and penalize it. That, in turn, could lead to settlements for the remainder of the cases.
The plaintiffs claim they were abused by priests, nuns and agents of the diocese between the 1930s and the late 1970s. The diocese and the Ursuline sisters knew of the abuse but did not stop it, the plaintiffs claim.
From the outset, all sides pledged to work to settle the lawsuits, which were filed in 2011. There have been three mediation sessions, the last one on Monday, but the case can't be settled without funding from the insurance providers, diocese attorney Mike Patterson told Sherlock.
"Although we are still on the train, it is not moving as quickly as we thought it would," Patterson said.
The diocese has filed claims with 16 insurers. Several insurers have filed lawsuits challenging those claims, saying they should not have to pay damages for abuse that occurred before their policies went into effect.
Sherlock had previously set the first trial for December, so with prospects of a settlement looking dimmer, the judge held a hearing Wednesday to discuss just how to manage jury trials for 360 people.
The sides agreed the first trial would consist of just one or two plaintiffs from the first of the two lawsuits filed, followed by additional trials about every six months with six or eight plaintiffs each.
But before that first trial happens, attorneys for both the diocese and the plaintiffs are awaiting a ruling by Sherlock on the scope of the insurers' coverage that may speed up a resolution.
The diocese is asking Sherlock to adopt a "continuous trigger" rule that would put the insurance companies on the hook for physical and emotional injuries caused by the clergy abuse, even if the actual abuse happened before the policies went into effect.
The physical and emotional injuries caused by sex abuse are continuous and progressive after the initial abuse occurred, attorneys for the diocese argued. They compared it to asbestos-related diseases in which an injury from breathing in the toxic fibers slowly grows and may not manifest for years.
"As with an asbestos related injury, if left untreated, being sexually abused as a child causes continuous and progressive bodily injury throughout the course of the victim's life," diocese attorney William Driscoll wrote in his June 14 court filing.
The insurance companies say that while the "continuous trigger" has been applied in asbestos cases, no court has ever used it in a sex-abuse claim.
Sex abuse has a definitive beginning and end, and an insurance company should not have to cover abuse that happened years before its policies took effect, St. Paul Fire and Marine Insurance Co. attorney Patrick Sullivan said in his response to the diocese's request.
Sullivan compared it to a victim in an explosion or a car accident. The person may suffer physical and emotional injuries over several years, but that doesn't trigger insurance coverage from policies that were put in place after the accident, he said.
He asked the judge to dismiss the diocese's request and rule that St. Paul has no duty to defend or indemnify the diocese for claims before its policies went into effect in 1973.
"The diocese's failure to purchase insurance and/or maintain its records cannot justify the extreme, unfair, and unprecedented result for which it advocates," he wrote.