A new lawsuit resulting from the 2012 tragedy at Sandy Hook Elementary is raising questions about how product and personal liability insurance policies dovetail with Second Amendment rights.
According to a Wall Street Journal report, nine families of victims killed at Sandy Hook and one survivor filed suit against the manufacturer of the Bushmaster Model XM15-E2S rifle used by gunman Adam Lanza in the attack.
The families claim the rifle differs only slightly from the M16, a military-grade weapon civilians cannot legally own. Attorney Joshua Koskoff argues that while the military must abide by strict requirements relating to the storage and use of the weapon, there is no comparable oversight for civilians.
“There is so much ample evidence of the inability of the civilian world to control these weapons, that it is no longer reasonable to entrust them to for that purpose,” Koskoff said.
The families are suing under an exception to the 2005 Protection of Lawful Commerce in Arms Acts which allows for negligent entrustment lawsuits in which one party may be held liable for entrusting a product to another party, who then causes harm to a third party.
The outcome of the case will have interesting implications for product liability coverage for gun manufacturers. Currently protected from many lawsuits under the 2005 law, a successful petition from these 10 families may have the power to change that.
The Sandy Hook shooting also sparked conversation on potentially requiring gun owners to purchase liability insurance. However, two insurance law experts doubt this model has any real root in practicality.
According to George Mocsary of Southern Illinois University School of Law and Peter Kochenburger of UConn, the current model for liability insurance would neither deter gun violence nor provide adequate compensation for victims.
“The last year has seen a number of calls for legislation requiring would-be gun owners to maintain liability insurance,” said Mocsary, an assistant professor at SIU’s School of Law. “The idea is that it would serve as a private regulator of guns and compensate victims of gun violence. There’s good reason to believe, however, that insurance would fall short of both of these goals.”
Mocsary noted that under the current liability insurance model, nearly all intentional criminal actions are excluded from coverage.
Nearly 20% of gun violence victims are shot by criminals while committing a crime themselves, Mocsary said, while Kochenburger added that roughly 97% of deaths caused by firearms are the result of suicide or homicide—neither of which fall under liability policies.
Additionally, negligent entrustment and negative storage—which are sometimes used in attempt to provide coverage for criminal acts--aren’t recognized by many jurisdictions, “especially where a gun was stolen and then used in a crime.”
“And that accounts for a great deal of guns used in crime,” Mocsary said.
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