"Murder Insurance" declared illegal in Washington State

[TXAZ]

Saw a couple of articles on this, and it's confusing on what reality is.

It appears the state of Washington is going after CHL holders who carry legal insurance, by declaring "Murder Insurance" is illegal. (Their term not mine)

Various articles (1 of many below) have claimed brokers of CHL legal services insurance are:

1) Going out of business
2) Encouraging murder
3) Illegal under state and / or federal law
4) Are now under attack by 'many' states AG's and "Murder Insurance" will soon be illegal across the country
5...N) etc, etc.

On the other hand, US Law Shield and USCCA both seem to be in business, including in the state of Washington.


So to the legal eagles on the forum, what's the real deal and where is it going / not going?

"Murder Insurance" deemed illegal in Washington State

[LeverGunFan]

This is the reason given in the article as to why the insurance is illegal:

The plans are in violation of state law because they could cover upfront expenses for mounting a criminal defense, even if the policyholder later pleads guilty to charges or is convicted, the Insurance Commissioner Office said in its news release announcing its decision.

Just guessing (INAL), but if the policies only offered reimbursement for a successful defense, would they be allowed? If so, why wouldn't a defendant be allowed to have funds available mount a criminal defense? Do the other service providers only offer legal assistance until the trial is concluded, then they pay for expenses?

[Aguila Blanca]

Most of those programs are not insurance. They are pre-paid legal services programs.

The program that is insurance is the NRA's Carry Guard program, and that's the program that was attacked by the State of New York on the basis that you can't insure yourself against the consequences of an illegal act.

But it's not illegal to defend yourself against criminal charges, or against a civil lawsuit. My non-lawyer dinosaur brain draws a clear distinction between the cost of paying your lawyer versus the award of any monetary damages you might be ordered to pay to a victim (or his family) if you make a "bad shoot." Mounting a defense in court is a Constitutional right, and it doesn't seem at all acceptable to me for any state to argue that you're not allowed to enter into a contractual agreement that only covers how you will pay for the cost of exercising your Constitutional right to legal representation.

Why are they singling out guns (again)? [That's a rhetorical question.] We all (I think) have automobile insurance. Let's say you're involved in an accident in which someone is killed. Let's say you are charged with vehicular manslaughter (don't know why, but that's the charge.) Does the State of Washington say that your automobile insurance company CAN'T pay for defending you in court, because you might be found guilty of a criminal offense?

[JN01]

The plans are in violation of state law because they could cover upfront expenses for mounting a criminal defense, even if the policyholder later pleads guilty to charges or is convicted, the Insurance Commissioner Office said in its news release announcing its decision.

So the State of Washington wants to ensure that "guilty" people (and anyone using a gun must be one of the "guilty") will have trouble covering the expense of their defense or will have to rely on state appointed counsel?

[Rangerrich99]

Originally Posted by JN01

So the State of Washington wants to ensure that "guilty" people (and anyone using a gun must be one of the "guilty") will have trouble covering the expense of their defense or will have to rely on state appointed counsel?

This.

Had a conversation with some people about this subject last year. They were mostly anti-gun/gun control advocates, and their main contention was that gun owners that ended up in a shoot should be completely exposed to civil suits etc. That "murder insurance" would make people more inclined to draw their weapons and shoot indiscriminately, thereby injuring and killing more people.

Essentially the anti-gun crowd wants to make "murder insurance" illegal as yet another weapon against gun owners to try and force us to reconsider owning guns at all.

[Bartholomew Roberts]

The political answer is that NRA Carry Guard funds NRA and allows them to keep fighting politically. U.S. Law Shield and USCCA don’t have a political component so the attorneys general in those states do not care what they do except as they may be incidental victims to the real target.

Authoritarianism relies on coercion and “deplatforming” disfavored viewpoints. It frequently doesn’t rely on state coercion directly; but simply on the state looking the other way while third parties provide the coercion. If you are pursuing that strategy, you want to increase the costs of your target population defending themselves from their fellow citizens.

And currently, our legal system provides lots of opportunities to be both ruined and acquitted.

[Glenn E. Meyer]

Here is an interesting question. We are now seeing teachers being able to carry on some K-12 and college campuses. In some cases, you have to go through mandated courses, in others - all you need is a license or permit.

Let's say you have to engage the bad person. Maybe you shoot an innocent in friendly fire. I wonder if the professional malpractice policies would cover you?

Here's one, I had when I was working: https://www.aaupmercerinsurance.com/...liability.html

[Bartholomew Roberts]

In Texas, I believe the Civil Practice and Remedies Code caps damages at $250,000 per person and $500,000 per occurence for school districts. Given the rarity of the event, it probably makes more financial sense to pay out rather than carry insurance.

[Frank Ettin]

There are two basic insurance principles involved: (1) losses resulting from intentional acts aren't insurable; and (2) losses resulting from illegal acts aren't insurable.

I think some of the technical, insurance issues can probably be handled by the carrier reimbursing criminal defense costs only when the defense is successful. (Which is still better for the insured than not getting anything, ever.) But it doesn't resolve the public perception issue.

Originally Posted by Aguila Blanca

....Let's say you are charged with vehicular manslaughter (don't know why, but that's the charge.) Does the State of Washington say that your automobile insurance company CAN'T pay for defending you in court, because you might be found guilty of a criminal offense?

I can't imagine that any automobile insurance policy will cover the defense of e vehicular manslaughter charge. All the policies I've seen exclude such expenses and cover only defense of civil suits and damages awarded in civil suits.

And IIRC Washington State as a strong self defense immunity law. If one is charged criminally as a result of a use of force claimed by the defendant to have been in self defense, and if the defendant is acquitted, the defense costs are recoverable from the State.

I'm not going to look at up now, but I seem to recall some discussions along those lines here or at THR.

[spacemanspiff]

In the link of the OP, is another link to a sample policy, and after reading thru that, I do not believe that this type of policy would ever respond the way the Washington insurance commissioner believes it would. That is evident by reading thru the Exclusions of the policy.
As for the policy responding in the aftermath of a self defense shooting, it does indicate that there is some coverage if criminal charges arise from said self defense. But it doesn't go into detail about what that would be. In my un-lawyerly mind, perhaps its a criminal charge of something like 'discharging a firearm in city limits', or maybe a charge for possessing a firearm in a place where they are not allowed.

This is where I see vague wording. But it does not seem to be the intent of the policy to defend against "murder".

A problem with the issue though, is that insurance divisions in these states that are fighting this type of policy, are relying on the statements from gun control groups that say this insurance will "foster more violence and give gun owners a false sense of security to shoot first and ask questions later", and that it "encourages gun owners to take action and not worry about the consequences".

If an insurance policy could actually do that, there would be evidence to support such a statement from looking at how policy holders behave with virtually any other type of insurance coverage. The entire concept of insurance is to REDUCE RISK for the policy holder. A business doesn't obtain workers comp insurance and then go on to maintain an unsafe work environment. A bar doesn't obtain liquor liability insurance and then go on to serve alcohol irresponsibly. A contractor doesn't obtain liability insurance and then go on to perform shoddy work. And if any of these examples do occur, its evident by looking at their claim history, and carriers are quick to get off these policies.

[DaleA]

So what would be the difference between having an insurance policy that would pay for your legal costs to defend you in court and having a law firm on retainer to defend you in court?

Disclaimer: I am not now, nor have I ever been a lawyer but I own and have watched every episode of "Ally McBeal". (I'm pretty sure there is a difference between insurance and retainers but I appreciate one of our legal folk to explain it.)

[Frank Ettin]

Originally Posted by DaleA

So what would be the difference between having an insurance policy that would pay for your legal costs to defend you in court and having a law firm on retainer to defend you in court?...

Without insurance, you'd by paying your lawyer with your own money. So your personal assets are at risk -- without any limit. (The retainer is just a prepayment of a portion of any legal fees you might have to pay for the lawyer's services. One pays a retainer to establish the lawyer-client relationship and assure that the lawyer will be available to you. If you use the services of the lawyer, you're on the hook for his full fees, but the amount of the retainer you paid is credited toward your bill.)

With insurance, a third party, the insurer, will be paying your bills, and your financial exposure is limited to the amount of the insurance premiums you pay.

[Spats McGee]

Originally Posted by Frank Ettin

. . . .With insurance, a third party, the insurer, will be paying your bills, and your financial exposure is limited to the amount of the insurance premiums you pay.

. . . . up to policy limits, right?

Also, if you go the insurance route, you pay the premiums to the insurance company, but in the event of litigation: (1) the insurance company picks the lawyer; and (2) the decision of whether to settle (a civil case) or go to trial belongs to the insurance company.

[zukiphile]

Originally Posted by Spats McGee

Also, if you go the insurance route, you pay the premiums to the insurance company, but in the event of litigation: (1) the insurance company picks the lawyer; ...

One of the very valuable aspects of insurance.

Originally Posted by Spats McGee

...and (2) the decision of whether to settle (a civil case) or go to trial belongs to the insurance company.

I understand some medical malpractice policies have, or once had, provisions that required the consent of the insured for settlement. Some docs take the record of a malpractice settlement personally.

What is a an intentional tort is a curious thing. In my state, there is a class of workplace injury in which the employer had violated a workplace specific safety requirement (VSSR). Employers were once allowed to insure against the risk, but then the Ohio Sup Ct decided that since the violation of a specific bit of administrative code is an intentional act, the risk is uninsurable.

Whether one focuses on the intentional act in a string of acts that result in an injury seems to determine whether the tort is insurable; it isn't obvious to me that the mere occurrence of an industrial safety requirement is really what we would ordinarily determine to be an intentional act.

Originally Posted by Aguila Blanca

We all (I think) have automobile insurance. Let's say you're involved in an accident in which someone is killed. Let's say you are charged with vehicular manslaughter (don't know why, but that's the charge.) Does the State of Washington say that your automobile insurance company CAN'T pay for defending you in court, because you might be found guilty of a criminal offense?

If one of the things for which you are being sued is getting behind the wheel drunk and causing the accident, many states do prohibit insurance coverage of that judgment, the idea being that driving drunk is such a malicious act that you might as well have intended the result.

[Aguila Blanca]

Originally Posted by zukiphile

I understand some medical malpractice policies have, or once had, provisions that required the consent of the insured for settlement. Some docs take the record of a malpractice settlement personally.

Not just doctors.

Case in point: A long time ago, in another universe, I worked for an A/E (architecture and engineering) firm. We were hired to design repairs to the roof of a shopping mall that was damaged in a fire.

A couple of years later, we (along with about ten thousand other defendants) were sued by one of the volunteer firefighters who had fought the fire. Apparently, he showed up at the fire drunk, fell off a ladder, and injured himself. Naturally, it wasn't his fault so he was suing everybody to see who wanted to pay him.

We were not hired until after the fire, but our professional liability insurer wanted to settle rather than defend us because they thought it would be cheaper. And, of course, if we had allowed them to settle, our premiums would have increased because the company would have lost money "because of our actions."

The boss actually had to sue our insurance company to force them to defend us. Once that was done, we were dismissed from the case in short order. (As we should have been at the outset.)

[dreaming]

California also does not allow intentional acts to be insured for loss, but just what is the loss from an intentional act. A driver may be intentionally violating a speed law, but civil losses are insurable; both damages for personal injury, property damages, and costs, including attorney fees. What about criminal losses?

If you are charged with speeding for the same incident, I don't believe the fine is an insurable loss, but can't you insure against attorney fees? Forget that some self defense policies deny any payment if you admit or are convicted of a criminal act. As long as you have only been accused, innocence is presumed.

As for the insurer selecting the defense attorney, isn't there an inherent conflict of interest if the insurer's obligation to pay defense costs is dependent on not being found guilty? It may have changed since I retired, but the law in my state allowed the insured to choose the attorney in a civil case if coverage turned on the outcome of the case.

[TXAZ]

You have to admit, these are some pretty creative approaches by anti-lawful-gun-ownership bureaucrats...

[Rob228]

I thought compulsory insurance was one of the things that the gun control crowd wanted gun owners to have.

[doofus47]

Yeah, I'm as confused as Rob228...

[Aguila Blanca]

I thought compulsory insurance was one of the things that the gun control crowd wanted gun owners to have.

No, they don't want us to have it. They want us to be required to have it. If insurance is a prerequisite to owning firearms, and you can't get (or can't afford) the required, mandatory insurance ... then you can't have guns.

Which is what they really want.

[OPC]

They want firearms insurance to cover damages to others (bystanders, wrongful injury/death, etc.), but not to be used to pay for the owner's legal defense.

[silvermane_1]

Originally Posted by Frank Ettin

There are two basic insurance principles involved: (1) losses resulting from intentional acts aren't insurable; and (2) losses resulting from illegal acts aren't insurable.

I think some of the technical, insurance issues can probably be handled by the carrier reimbursing criminal defense costs only when the defense is successful. (Which is still better for the insured than not getting anything, ever.) But it doesn't resolve the public perception issue.



I can't imagine that any automobile insurance policy will cover the defense of e vehicular manslaughter charge. All the policies I've seen exclude such expenses and cover only defense of civil suits and damages awarded in civil suits.

And IIRC Washington State as a strong self defense immunity law. If one is charged criminally as a result of a use of force claimed by the defendant to have been in self defense, and if the defendant is acquitted, the defense costs are recoverable from the State.

I'm not going to look at up now, but I seem to recall some discussions along those lines here or at THR.

The bolded part is true IIRC, but it could have been changed recently.