Over the past several years, the United States has suffered multiple mass shootings. Most of the shootings occurred at schools, places of worship or other public places. After each shooting, one side calls for gun control and increasingly strict regulations while the opposing side argues that arming more people for the safety of all is the way to address the situation. From time to time the issue of liability insurance arises, should gun owners be required to maintain some sort of liability insurance?
This idea has a number of flaws; the main one being that insurance does not provide coverage for intentional harm to others. Specialty carriers may provide coverage for defense when the insured acts in self-defense due to fear for his life. The National Rifle Association (NRA) has a policy that provides coverage for accidental shootings that occur while hunting, at hunt or gun clubs, or on supervised ranges. That policy also does not provide coverage for intentional acts to cause harm. While the basic liability policy does not cover self-defense, the coverage can be added by endorsement. Fearing for one's life and defending oneself is seen differently than randomly and intentionally shooting others. This coverage includes legal defense for charges arising from shooting another person in self-defense. An insured may be criminally charged until the case is reviewed. Here lies the rub.
The insurance policy was developed in April 2017 and the NRA developed an aggressive campaign to market the insurance. A gun-advocacy group noticed the insurance and believed that the NRA was illegally acting as an insurance broker, and filed a complaint with the New York Insurance Department. Upon investigating, the department stated that the program broke the law as it was protecting against “acts of intentional wrongdoing”. As a result, the program was shut down in New York, and the carriers who were underwriting and issuing the NRA policies, Lockton Companies and Chubb, were fined $7 million and $1.3 million respectively. Both companies have severed relations with the NRA. The NRA's stance is that this review by the insurance department stems from the views of Governor Cuomo and his displeasure with the NRA as a whole. The NRA has sued Lockton alleging breach of contract.
New York is not the only state looking at the policies. In September, the California Insurance Department issued a cease and desist order to the NRA, alleging that the NRA marketed insurance in California without being licensed to do so. The order states that the NRA sent emails to those subscribed to the NRA mailing lists advertising the policy and outlining policy details. The California Insurance Code specifically states that a person may not solicit or negotiate insurance policies without a valid license. As the NRA has never held an insurance license in California, it is in violation of these state regulations.
Washington State has also banned the sale of the NRA self-defense policies. The Washington department says the policies are illegal because they are insuring unlawful activity. The policies were being underwritten by Illinois Union Insurance Company, and were sold by Lockton Affinity on behalf of the NRA. The Insurance department is fining Illinois Union $102,000 for selling the illegal policies and fining Lockton $74,000. The companies have until February 14, 2019 to respond to the department by requesting a hearing or agreeing to pay the fines. As in California, the NRA is alleged to have solicited the policies without having an insurance license, which violates state law. The NRA has modified its website in order to address the department's concerns. New Jersey is yet another insurance department looking into the NRA's insurance policy. The insurance department reviewed the findings of the New York insurance department and began its own investigation into how the product was being advertised and sold. The NRA program is not the only one being investigated by New Jersey; the department is investigating other providers as well to ensure state regulations are being followed. No press releases have been issued regarding this topic since August 2018.
To date these are the only departments we are aware of that are investigating the NRA's Carry Guard insurance. Whether more states will review the situation remains to be seen. Those calling for liability coverage for gun owners overlook or are unaware of the difficulties in providing such coverage.
As stated above, intentional harm is uninsurable; the homeowners policy specifically excludes expended or intended injury by an insured. The only exception is the use of reasonable force to protect persons or property. There is no definition of reasonable force, so it is left to interpretation. Is it reasonable for an insured to shoot an unidentified person out in the backyard at night? Should the insured have tried to determine who the individual was? What if the insured is showing a new gun to a friend and accidentally shoots the friend? While handling a gun can be considered a dangerous activity, and the risk of injury could be considered expected in some views, the injury in this situation is not intentional so coverage might be provided.
The issues surrounding gun ownership are many and difficult. While insurance has been suggested as a possible solution, the fact that intentional harm cannot be insured negates that thought. While it seems to make sense, the reality is more complicated. If a policy was developed, any insurance policy must be approved by the state insurance departments and those selling the coverage must adhere to state regulations.
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