[62coltnavy]

These proposals have been floating around various state legislatures for a number of years, and none have passed,; but that may change this year. California has a proposed mandate, and I suspect Connecticut will go that route as well. Leaving aside the fact that this bill will never make itout of the House, and maybe not even the Senate, let us look at what is sought to be achieved, and whether these proposals have any realistic chance of achieving those goals.

The purpose of this type of law is, according to the sponsors, to insure against the billions of dollars of medical costs incurred annually to pay for gun shot injuries, much of which cost is borne by public entities. The thought is that if the owners of guns were insured, there would be an avenue available to recover these costs. Seems simple enough in the abstract, but does it work in the real world?

In insurance lingo, first parties are the insureds, third parties are the folks suing the insureds. This distinction is particularly important as it explains where these bills go astray. Liability insurance protects the first party insured from liability claims asserted by third parties; it is not protection for the benefit of the third parties. Yet this is what these bills assume--that liability insurance protects the interests of the person shot, rather than the interests of the person doing the shooting.

Instead, these policies will provide coverage only where the insured acts negligently; intentional torts are specifically excluded in policies, and by states in the various states that bar insurers from insuring for intentional torts, the idea being that criminals should not be indemnified by insurance companies for their wrongful acts. In other words, if I shoot you because I don't like the way you look, or your race, gang affiliation, whatever, a conviction of intentional assault and/or battery and/or murder will preclude indemnity (payment of damages) from my carrier against third-party claims. On the other hand, if I shoot you negligently e.g., a hunting or training accident, these policies will provide coverage. Imperfect self-defense will likely fall within the scope of coverage, because the elements of this defense are a negligent belief in the right to use deadly force. But murder is clearly out. Gang shootings are out. The vast majority of shootings are out. This insurance mandate will therefore have little if any meaningful effect on the costs associated with "gun violence" in America today.

Do the proponents of these bills know this? They must. So they have invented a backdoor to create a basis for negligence liability of gun owners whose firearms are lost or stolen, with an escape hatch (just to be fair). If your guns are lost or stolen and not reported to the police/state/government within a specified period of time after such knowledge is gained, then the gun owner is potentially liable for any later criminal act perpetrated with that firearm. The "safe harbor" is the reporting of the loss of the firearm within the statutory period.

It is unclear whether this would be a strict liability or a negligence liability, but he better view is a newly established negligence liability. How would this work? Typically, once out of possession, one is not liable for what someone else did with the gun, particularly if it is an "intervening criminal act." Since it just doesn't seem fair to hold a gun owner liable for what a thief did with the gun, the bills create negligence liability through imposing requirements for "proper" storage of the firearm, i.e, gun safes. If you fail to "properly secure" your firearm in your home (no matter what the Supreme Court said in Heller about the constitutionality of such a requirement), then the subsequent criminal act is "foreseeable" and the gun owner liable in whole or in part. While you are probably liable in most states now if a child gets a hold of one of your guns and shoots himself or another in your home, this law would extend that liability outside the home to wherever the gun ends up and in whoever's possession--unless it is reported stolen. And because insurers are bound to defend where there is a potential claim under the policy, carriers will be more likely to indemnify owners in these cases for their negligent failure to secure their arms. To make it short and sweet, this plan creates a new liability for gun owners and then requires them to buy insurance for it. Cute, huh?

Do we have such coverage now under our homeowner's or renter's policies? Unfortunately, there is no one right answer, because the coverage clauses of different policies are worded differently; while one policy might cover you for a self-defense shooting, others will not; when you shoot someone in self defense, the shooting is intentional, and many carriers will seek to avoid coverage. Claims for accidental shootings are likely to be covered now, so these new insurance requirements will not buy you something you did not already have. But it is clear that your homeowner's carrier will not defend any criminal action brought against you--those are the province of the special policies issued by a number of organizations, including USCCA and the NRA. This is important coverage to obtain, especially if you carry a concealed weapon, as your criminal defense attorney will cost you dearly. These policies are not expensive.

Do these proposed laws result in de facto gun registration? Arguable. If you own expensive firearms, you should probably have them listed (scheduled) on you homeowner's policy any way because of limitation on the insurance for certain valuables. Will insurers decline to insure because you have firearms? Only if there is a strict liability imposed (as there is with dog bites in many places, which is why they will not insure vicious breeds). Otherwise, there are 100 million firearm owners in the US, and someone will gladly insure this market, particularly where the circumstances where claims are actually payable are not drastically different than they are today.\

So the ultimate conclusion that must be reached is that the proponents of these bills--not sure who they are--are more interested in disincentivising gun ownership, not in "doing good" by protecting the "innocent gunshot victims."