The verdict is in: School districts can be held liable for the criminal behavior of bus drivers and aides who abuse students in their charge. In recent news reports about sexual-abuse lawsuits involving the Olympia (Wash.), North Branch (Minn.) and Newburgh (N.Y.) School Districts, the operative terms are “negligent” and “failed to prevent.”
In California, the San Joaquin County Superior Court imposed a record settlement of $4.75 million against Lodi USD, finding the district 90 percent liable for failing to properly screen a convicted sex offender who sexually assaulted a 10-year-old girl with special needs.
“This settlement provides some small measure of justice for a little girl who suffered horrible abuse at the hand of a school bus driver who should never have been hired,” said victim’s attorney John Manly. “It also sends a clear message to every school district in California — protect our children from dangerous predators or suffer the consequences.”
These cases are merely a drop in the bucket of sexual abuse lawsuits, yet many school districts do not have this type of liability coverage in their insurance policies, according to Jeff Carlson, executive vice president of Capacity Coverage. In STN’s 2014 School Administrators Survey, 76 percent of respondents said they don’t know if their district’s insurance policy includes liability coverage for sexual abuse cases involving employee and/or student perpetrators.
“The big issue right now is sexual molestation and the lack of insurance coverage for (liability) claims,” said Carlson, whose firm insures some 200 school bus companies nationwide. “I’ve been involved in claims for one to two million dollars in liability … and so many claims involve drivers and/or aides. It’s going to get even uglier as more claims come in.”
He added that many boards of education have their heads in the sand when it comes to the potential risk of sexual abuse liability claims. In his experience, when school board members publish insurance specs for contractors, few ask for molestation and abuse liability coverage.
“It’s a real problem because contractors who buy insurance from agents may not have the product knowledge. More importantly, boards of education are asking for certificates of insurance, but they aren’t asking the right questions,” Carlson said, noting that Capacity Coverage offers a sexual molestation sub-limit as part of a general liability policy for school bus contractors.
Keystone Insurers Group offers molestation and abuse liability coverage to school bus contractor members of the National School Transportation Association (NSTA) and Pennsylvania School Bus Association (PSBA) and is the endorsed insurance provider to both associations.
The Keystone school bus insurance program offers critical abuse and molestation protection, including corporal punishment, peer-on-peer coverage and student-to-student protection, with higher liability limits that can help pay for costly legal defense.
Tammy Jones of Central Insurers Group in State College and Tim Weaverling of Reed, Wertz, and Roadman Inc. in Bedford are just two of several Keystone agents who sell this program. They report that school bus contractors are aware of specific coverage for abuse and molestation, and they do seek it.
“I estimate about 75 to 80 percent of my clients are aware of the coverage,” Jones said. “However, their knowledge of the coverage and its increasing importance may vary depending on the size of the operation.”
“Most urban and suburban bus contractors are aware of the coverage, and some are even required to have it. In my experience, bus contractors are more confused about how and when the coverage applies — and my response is: As long as the children are in their care, custody or control, they are responsible for their safety and well-being,” explained Weaverling.
Jones added that in her experience, such claims submissions have been settled out of court, with all monies for defense costs paid.
“Most bus contractors are not aware that abuse and molestation coverage is excluded on many carriers’ commercial auto policies. Keystone’s insurance program routinely builds coverage for sexual abuse and molestation into their proposals. That’s how strongly we feel this coverage is needed,” she said.
Weaverling emphasized that he always recommends a bus contractor include sex-abuse liability coverage, even if a school district does not require it.
“The incident not only impacts a child’s life forever but also can devastate a bus contractor and their business. The scenario is real. As agents, we need to help a bus contractor be prepared should this type of event happen,” he said.
Prepare to Prevent
Cynthia Langill, loss control manager at Utica National Insurance, told STN the firm specializes in underwriting both public and private schools. Utica’s school district legal liability policy (SDLL) may or may not include sexual abuse liability coverage depending on client preference.
“There is definitely more awareness about this issue in light of recent cases with huge settlements,” she remarked. “Customers are concerned about this. It’s a discussion we have every year at renewal. They have to balance what is the cost of the insurance, what’s the cost of the risk if they don’t insure it, and what kind of risk management techniques do they have in place to reduce risk. I would say almost of all of them have some form of the SDLL.”
In her department, agents recommend certain risk-management techniques to make it a “better” risk, Langill said, such as making sure school officials are showing due diligence by conducting required background checks, contacting references and reporting any suspicious behavior or relationship.
At the TSD Conference in March, expert witness Linda Bluth told student transportation professionals it is their duty to report suspected sexual abuse of bus riders in her presentation “Are Your Eyes Open to Sexual Abuse?” She told STN it took three months for her to prepare this presentation, which highlighted several cases of molestation perpetrated on students by their bus drivers, monitors and fellow students.
Bluth, who is the special initiatives education specialist within the Maryland Department of Education, said perpetrators target students with special needs more often than regular-education students because they were never considered credible witnesses.
Now the growing prevalence of video cameras on school buses has given the most vulnerable children a voice, she added. With the Lodi, Calif., case and others like it, video evidence has proven key to supporting testimony by students who are mentally impaired and may be verbally challenged.
“What I think is an interesting factor is you take nonverbal, intellectually limited kids who can’t stand up for themselves so they make terrible witnesses and they’re an easy target. But now with the video surveillance, they’re not so easy a target … That’s a big industry change,” she emphasized.
During her recent presentation, Bluth pointed to other game-changers that better support allegations of children with disabilities, including DNA evidence, increased media coverage and police investigation practices. There are three reporting methods: direct disclosure (statement), indirect methods (witness) and school bus video confirmation (visual).
She also shared the statistic that 61,472 children aged 1 to 21 reported they were victims of sexual abuse, according to 2011 data from the Child Abuse Prevention and Treatment Act (CAPTA).
To prevent further victimization, Bluth recommended that student transportation personnel watch for common signs of sexual abuse like aggressive or anti-social behavior, as well as depression, identity confusion, sudden loss of self-esteem and psychological problems in their student riders.
Even though school bus drivers may not feel comfortable reporting their suspicions about a student, she said that transportation managers should encourage their employees to speak up even they only have a “gut feeling.” Once they report it, managers should involve a principal, school administrator, social worker and even law enforcement to investigate. Management should also train staff to be especially watchful, for example, when students gather in a group at the back of the bus — out of the driver’s sight. Last, it is crucial that transportation directors know, and understand, state laws regarding their obligation to report any abuse.
Peggy Burns, Esq., of Education Compliance Group agreed that children with special needs are more likely to be sexually abused and noted there is ample data to support this. She said sex crimes such as those in Olympia, Wash., and Lodi, Calif., do not surprise her anymore.
Burns said the Lodi case is interesting because the bus driver was deemed eligible to drive a school bus despite his 2000 criminal conviction for lewd conduct on the job when he was a deliveryman.
“So, the first question is: Did the district do a criminal background check on this driver? Two, if they did not, would a check have turned up fact that he was held criminally liable for that event? Not if it’s a misdemeanor. Three, how remote in time was the original sex allegation from his hiring by a contractor?” Burns continued. “There are so many questions there. I can understand why the insurance company settled because all of these questions would have to be answered.”
