May 21, 2013 Articles

Gun and Shooting Liability Claims: A Brief Survey of Selected Coverage Issues

The principles governing the existence of coverage for shooting are already well established in most states

by Rina Carmel [1]

In the wake of the horrific tragedy at Sandy Hook Elementary School have come calls for mandatory gun liability insurance. As of February 2013, lawmakers in California, Connecticut, Maryland, Massachusetts, New York, and Pennsylvania, among others, have proposed legislation requiring gun owners to buy liability insurance.[2] Although the political merit of whether the insurance industry can effect gun safety makes for an interesting debate in its own right,[3] the more prosaic reality is that the principles governing the existence of coverage for shooting are already well established in most states.

Common fact patterns for shooting claims, as reflected in the case law, include domestic violence;[4] people shooting at each other for fun, for sport, or to teach someone a lesson;[5] disputes between neighbors;[6] and self-defense.[7] Not infrequently, alcohol is involved.[8] The homeowners’ policy—and sometimes the auto policy—of the shooter, or his or her parents, are at issue. If the shooting happens at a business, church, or school, that location’s general liability policies may also be at issue.[9]

The fundamental coverage issue is whether the shooting constitutes an occurrence, a coverage requirement for claims of bodily injury or property damage,[10] or conversely, whether a policy exclusion for intentional acts bars coverage. Although a first instinct might be to argue that the outcome of this coverage issue depends on the facts, this is not necessarily so, because cases in several states have deemed pointing a loaded gun at someone to be intentional, meaning that many shootings are not covered, as discussed below. At the other end of the spectrum, the Montana Supreme Court has stated that “‘accidents’ that result from the unsafe use or mishandling of firearms are an all too frequent ‘occurrence’ in this State—and, more importantly, are an insurable event unless otherwise expressly excluded under an insured’s personal liability policy.”[11] In the middle of the spectrum, many states apply a subjective or objective test to measure the insured’s intent for coverage purposes.

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