Should Gun Owners Have Insurance

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Insurance is a double edged sword that offers protection even as it invites lawsuits. Every day in my Tacoma law practice our associate attorneys and I decide which civil cases to accept based simply on this bottom line: How much is the case worth, and how likely are we to collect?

Insurance coverage factors in heavily roughly 99% of the time as the insurance company’s pocket is the only pocket from which we are likely to collect any money, especially if the defendant can bankrupt out of any future judgment.

What does insurance do? In certain cases the insurance contract obligates the insurance carrier to defend the insured and indemnify, or pay damages for, the insured if a court so orders. Incidentally, if your case actually makes it to trial, which is rare, the jury will likely never hear about your insurance protection because there are rules prohibiting mentioning your insurance and any prior claims by or against you.

When I was on the insurance defense side of the law, I would routinely ask the court to remind the ambulance chaser across from me that he and his witnesses could not mention insurance coverage in front of the jury. Again, very, very few cases ever make it in front of a jury as most are settled by the insurance company and the plaintiff well before trial.

Some insurance claims have what’s referred to as “nuisance value,” which means that even if the underlying case is weak, the carrier might just pay a token amount of money to make a covered claim go away. Nuisance value is generally the minimum amount of money that an insurance defense attorney would charge to defend a case. In Washington State when I was on the defense side of the table in the late ’90s the nuisance value of a typical car accident was about $2,500. This was because of the fact that if I started working on a case, $2,500 was the minimum amount of money that my firm would bill for my work.

Many weak, meaning “defensible,” cases were settled for $2,500 just to make the plaintiff go away because at the end of the day, that was probably the least expensive way of getting rid of a case with the least amount of risk. Remember the grandma burned by hot coffee who sued McDonald’s and got enough money to buy an Eastern European country? So does the average insurance adjuster, and they’re still gun shy about it.

If the carrier is paying a settlement on your behalf, life is good because that generally ends the case against you.

Unfortunately, what insurance will not do is cover intentional acts such as a self-defense shooting. That means they won’t defend the shooter, and won’t pay even the nuisance value of a claim to protect him. If you’re the shooter in a self-defense case, and you get sued, you’ll likely have to pay for an attorney out of your own pocket.

Let’s start at the beginning with how my firm analyzes a case, and what factors we think are important. Our lawyers basically consider four questions along with the existence of insurance coverage to decide whether to take on a case. If we can answer yes to each of these questions, we will likely offer our representation.

1) Duty of Reasonable Care. Was there some reasonable Duty of Care to the victim? The most obvious example of a duty is the duty to stop at a stop sign. We have a duty to stop at a stop sign, and to avoid running into other drivers, even accidentally, to the greatest extent possible. If someone runs a stop sign and smashes into you, that driver has probably violated a Duty of Reasonable Care, which simply means he didn’t do what a “reasonable person” would have done to preserve your safety. As shooters, we have a Duty of Reasonable Care to others that requires us to adhere to basic safety standards (e.g. weapons are always considered loaded, don’t point at anything you aren’t willing to destroy, finger off the trigger until you’re ready to shoot, etc.). An accidental discharge (AD), for instance, that injures another person, or damages property might be a breach of the Duty of Reasonable Care.

2) Breach of Duty of Reasonable Care.

The breach of a Duty of Reasonable Care occurs when someone has a Duty of Reasonable Care that he knows about, or should know about, but fails to live up to that obligation the same way a reasonable person would. Think of an AD following a shooter’s failure to obey basic shooting safety principles that the rest of us obey. If someone is injured as a result of these failures, and the victim was in a place where he belonged and should have been reasonably safe, then there was probably a breach of duty of care. In fact, the law might go so far as to label this accidental shooting “Res Ipsa Loquitor,” which is Latin for “the thing speaks for itself” meaning someone obviously screwed up, and that that screw up obviously caused damage to an innocent person.

3) Damages. Was the person damaged? To keep things simple we’ll just look at damages that include medical bills, pain and suffering, and lost wages. Back to the AD example we can safely predict some possible damages a victim might suffer. He will likely have medical bills, pain and suffering, and lost wages. Medical bills and lost wages are pretty easy to calculate, but pain and suffering can be a little tougher. Obviously, the longer someone suffers, the greater the potential damages, but there are a lot of variables here. The second most important damages consideration is whether they are substantial enough to justify the investment of my firm’s time. The most important part of damages, however, is whether they were caused by the Breach of Duty of Reasonable Care.

4) Causation. Did the breach of duty cause the damages at issue? In the AD scenario, the question is whether being shot caused the damages complained of by the victim.

Things get muddled in real life, and cases are rarely perfectly clear, so we sometimes have to spend some time and money figuring out whether the damages were caused by the breach of duty at issue. In the shooting scenario, imagine if the victim had a heart attack the day after the shooting, and the heart attack required an expensive medical procedure. I could find an expert witness to testify that the heart attack was more probably than not related to the shooting and the medical bills should be paid for by the accidental shooter. The other side could likewise find an expert who would convincingly opine that there is absolutely no way to say with any degree of medical certainty that the shooting and heart attack were related. Some witnesses and some cases are obviously stronger than others.

So, let’s say that my personal injury attorneys and I have analyzed the case and we think that the tortfeasor (person who caused damages) had a duty to the victim, breached that duty, and that the breach directly caused damages, what do we look at next? Money. What’s the case worth, and who’s going to pay our client, and us? Although, we occasionally take pro bono cases, that’s not a business model that will keep my lawyers and staff paid, so we look for the “deep pockets” we can reach into to extract enough money to make our client whole, and pay our staff for time worked on the case. We describe reaching into deep pockets as performing a “cashectomy.” Insurance is a vital component of almost all of our deep pocket cashectomies.

Deep pocket, incidentally, is an American slang term that usually means “extensive financial wealth or resources.” In the personal injury context it is usually used in reference to insurance coverage. Some individuals, and/or businesses are deep pockets, but more often than not, those people/businesses are not going to pay out of their own pockets in any event.

As I pointed out above, even if a tortfeasor is reasonably financially successful, he still might be able to avoid paying our client by filing for bankruptcy protection. If, however, there is insurance, then my client will get paid even if the tortfeasor files for bankruptcy protection. Obviously, we always want to see insurance coverage for every defendant’s actions, so that we know our client will be paid.

Interestingly, however, insurance isn’t obligated to pay for all possible claims. Under an insurance policy, which is a contract, the insurance carrier is only required to defend, and pay damages on, very specific types of claims as outlined in the policy. Within the firearms world, the most common coverage issue arises from the “intentional act” exclusion.

Intentional Act Exclusion. Insurance coverage is only triggered by certain non-intentional acts. The exclusion of insurance coverage for intentional acts actually goes back hundreds of years, so there’s nothing new here. As a result of this long history, intentional shootings are generally excluded from insurance coverage. An AD, however, would probably be covered by insurance even if the shooter was doing something exceptionally stupid when the hammer dropped. Juggling loaded Glocks with rounds chambered would be stupid, but it might still be covered under a policy if the juggling resulted in injury to someone. If, however, a shooter intends to put a round into a person, the shooter will almost certainly not enjoy insurance coverage for that event. It is important to be very familiar with your policy and ensure that it does not exclude coverage for all firearms events. In other words, make sure your policy is gun friendly.

Here’s an example of a shooter I defended after an insurance carrier refused to: A local business owner was assaulted by a half dozen Crips gang members at his Tacoma business. He ran to his van, Crips in pursuit with pool cues and God knows what else.

hings get muddled in real life, and cases are rarely perfectly clear, so we sometimes have to spend some time and money figuring out whether the damages were caused by the breach of duty at issue. In the shooting scenario, imagine if the victim had a heart attack the day after the shooting, and the heart attack required an expensive medical procedure. I could find an expert witness to testify that the heart attack was more probably than not related to the shooting and the medical bills should be paid for by the accidental shooter. The other side could likewise find an expert who would convincingly opine that there is absolutely no way to say with any degree of medical certainty that the shooting and heart attack were related. Some witnesses and some cases are obviously stronger than others.

So, let’s say that my personal injury attorneys and I have analyzed the case and we think that the tortfeasor (person who caused damages) had a duty to the victim, breached that duty, and that the breach directly caused damages, what do we look at next? Money. What’s the case worth, and who’s going to pay our client, and us? Although, we occasionally take pro bono cases, that’s not a business model that will keep my lawyers and staff paid, so we look for the “deep pockets” we can reach into to extract enough money to make our client whole, and pay our staff for time worked on the case. We describe reaching into deep pockets as performing a “cashectomy.” Insurance is a vital component of almost all of our deep pocket cashectomies.

Deep pocket, incidentally, is an American slang term that usually means “extensive financial wealth or resources.” In the personal injury context it is usually used in reference to insurance coverage. Some individuals, and/or businesses are deep pockets, but more often than not, those people/businesses are not going to pay out of their own pockets in any event.

As I pointed out above, even if a tortfeasor is reasonably financially successful, he still might be able to avoid paying our client by filing for bankruptcy protection. If, however, there is insurance, then my client will get paid even if the tortfeasor files for bankruptcy protection. Obviously, we always want to see insurance coverage for every defendant’s actions, so that we know our client will be paid.

Interestingly, however, insurance isn’t obligated to pay for all possible claims. Under an insurance policy, which is a contract, the insurance carrier is only required to defend, and pay damages on, very specific types of claims as outlined in the policy. Within the firearms world, the most common coverage issue arises from the “intentional act” exclusion.

Intentional Act Exclusion. Insurance coverage is only triggered by certain non-intentional acts. The exclusion of insurance coverage for intentional acts actually goes back hundreds of years, so there’s nothing new here. As a result of this long history, intentional shootings are generally excluded from insurance coverage. An AD, however, would probably be covered by insurance even if the shooter was doing something exceptionally stupid when the hammer dropped. Juggling loaded Glocks with rounds chambered would be stupid, but it might still be covered under a policy if the juggling resulted in injury to someone. If, however, a shooter intends to put a round into a person, the shooter will almost certainly not enjoy insurance coverage for that event. It is important to be very familiar with your policy and ensure that it does not exclude coverage for all firearms events. In other words, make sure your policy is gun friendly.

Here’s an example of a shooter I defended after an insurance carrier refused to: A local business owner was assaulted by a half dozen Crips gang members at his Tacoma business. He ran to his van, Crips in pursuit with pool cues and God knows what else.

C) Negligent Entrustment. Loaning a firearm to a person known to do stupid things with firearms might expose you to liability for acts done by that person with your gun. I don’t advocate entrusting a weapon to anyone even a degree less responsible than you. If you’re giving lessons to kids, have a system in place before you get to the range, follow the systems and the rules diligently, and assume that the kid is going to do something stupid that you must prevent. Even with all that, you might still be liable for something the kid does with your firearm. As an aside, I’m curious to see what will happen with the nine year old Arizona girl who accidentally shot her firearms instructor with an Uzi. I suspect the range will have some liability for the kid’s emotional trauma as the event arguably comes close to Res Ipsa Loquitor. Before you all send me hate mail about this, I’m not passing judgment or blame.

This was a heart breaking tragedy that has devastated two families. I’m only offering the range’s potential liability as a possible example of negligence. You can be assured that a slew of other attorneys are doing the same thing right now in anticipation of potential litigation. If you are sued for negligently entrusting a firearm to someone, your insurance might cover this claim.

D) Failure to Secure. This is similar to Negligent Entrustment, except that instead of giving the firearm to someone untrustworthy, you simply leave it where a known untrustworthy person accesses it and does something stupid with it. You can expect to see more criminal charges and more civil suits against parents who leave a firearm accessible to a child who uses the weapon to accidentally injure another person.

The gun grabbers love these stories and they have allies in many prosecutors’ offices and law firms. Nonetheless, insurance might cover this type of event.

E) Intentional Assaults. As pointed out above, intentional assaults are not generally covered by insurance policies. Nonetheless, if you are sued for any sort of offense, your first task would be to speak with a lawyer before anyone else. Your second task is to call your insurance carrier. Interestingly, if the attorney suing you has any experience at all in such suits, he will allege facts that should trigger insurance coverage by alleging that your acts were negligent, or reckless instead of intentional. Like I said, we all want to be able to perform a “cashectomy” on an insurance company because those are the deepest pockets to pick.

There are as many potential firearms issues as there are firearms owners, but the above represents my experience as a Tacoma criminal attorney and personal injury lawyer. Although, we generally won’t take a case unless there is insurance coverage, I don’t want you to think that you are safer from a lawsuit without insurance. You aren’t. The main reason for this is that there are a lot of lawyers who are dumb enough to take a bad case, but smart enough to make your life hell for quite a while. I’m insured and you should be, too.