Don’t Shoot The Messenger
Examining the Applicability of Liability Policy Exclusions to Shooting Incident-Related Claims
By Michele Detherage
Shootings, both on an individual and large-scale level, have become a growing reality in the United States in recent years. In the wake of such events, homeowners and business owners alike have increasingly turned to their liability insurers, seeking coverage for bodily injuries sustained by victims. However, certain exclusions contained in many liability insurance policies often preclude coverage for injuries arising from these violent incidents – even in cases involving claims of negligence.
Assault and Battery Exclusions
One important exclusion that courts around the country have held to absolve insurers of any duty to defend or indemnify their insureds in cases involving gun-related injuries is the typical liability policy exclusion for assault and battery. For instance, the recent Eighth Circuit appeal in Scaglione v. Acceptance Indem. Ins. Co. involved a coverage dispute that arose from a shooting incident in St. Louis, Missouri.1 By way of background, in June 2019, a customer of a downtown bar was struck by a stray bullet when a dispute broke out among other bar patrons.2 The victim suffered serious injuries and subsequently sued the bar’s owner who, at the time of the incident, had a commercial general liability policy with Acceptance Indemnity, which provided bodily injury coverage, subject to certain exclusions.3 One such exclusion stated that the policy coverage did not apply to: “A. Any claims arising out of Assault and/or Battery . . . or . . . B. Any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of you, your employees or volunteers, patrons or any other persons.”4 The insurer declined to defend or indemnify the bar owner in that action and coverage litigation ensued after the victim obtained a judgment and filed an equitable garnishment action against both the owner and the insurer.5
The insurer then filed motions to dismiss the claims asserted by both the victim and the insured bar owner, contending that the assault and battery exclusion barred coverage.6 The district court ruled in favor of the insurer, finding that the exclusion “plainly encompassed the definition of assault and battery” and that the injuries at issue “plainly arose out of that assault and battery.”7 In doing so, the district court rejected the victim’s arguments that (a) the exclusion did not apply to innocent bystanders but, rather, only to intended victims; and (b) the owner’s negligence, not the assault and battery, was the cause of her injuries.8 Ultimately, the Eighth Circuit Court of Appeals, applying Missouri law, held that the lower court did not err in granting the insurer’s motions to dismiss.9 Other courts have held likewise.10
Intentional Act Exclusions
In addition to assault and battery exclusions, various courts have found that intentional act exclusions contained in many liability insurance policies preclude coverage for shooting-related injuries. For example the case of N.C. Farm Bureau Ins. Co. v. Hague involved an insured who had a physical altercation with another individual which ended in the insured taking out a handgun and firing multiple shots, some of which struck and ultimately killed the other man.11 The victim’s estate brought a wrongful death suit against the insured.12 The perpetrator’s insurer, in turn, filed a declaratory judgment action seeking a finding that the liability policy that it had issued did not provide coverage for the claim, in relevant part, because it contained an intentional act exclusion.13 Pursuant to that exclusion, the policy did “not apply to bodily injury or property damage which results directly or indirectly from . . . [a]n intentional act or injury resulting from an intentional act of an insured or an act done at the direction of an insured.”14
In opposition, the insured argued that because the underlying action “allege[d] different theories of recovery, including grossly negligent acts by [the insured], it cannot be ascertained whether [the insured] acted with intent to injure…”15 The appellate court in Hague disagreed with this contention, opining that “the action of firing a pistol in the direction of another is conduct from which the actor should expect the probability or certainty of a resulting injury.”16 Accordingly, the court found that the insured’s conduct constituted an intentional act and that the corresponding exclusion relieved the insurer of any obligation to defend or indemnify against the underlying wrongful death action.17 18
A Look to the Future
While exclusions such as those discussed above have traditionally precluded coverage for the majority of shooting-related claims, an uptick in recent years of deadly assaults has resulted in an increased market appetite for shooting-related coverages. For perspective: According to an April 2023 publication, in 2022, the Federal Bureau of Investigation designated 50 shootings – which occurred in 25 states and the District of Columbia and resulted in 313 casualties, including 100 deaths – as active shooter incidents.19, 20 In the wake of the disturbing new reality of mass shootings, some insurers have begun to offer products that provide affirmative coverage for certain shooting events – e.g. endorsements and stand-alone policies providing coverages for active shooter incidents as well as for war and terrorism.21 Accordingly, moving forward, coverage litigation arising from shooting-related claims can be expected to focus increasingly on policy provisions that provide insurance coverage for injuries caused by assailants through the use of deadly weapons. That said, liability policy exclusions such as those for injuries arising from assault and battery and intentional acts will likely continue to play a significant role in coverage analysis of shooting-related claims.
1 75 F.4th 944 (8th Cir. 2023).
2 Id. at 947.
4 Id. at 948.
7 Id. at 948-49.
8 Id. at 949.
9 Id. at 953.
10 See, e.g., Alea London, Ltd. v. Woodlake Mgmt., 365 Fed. Appx. 427 (3d Cir. 2010) (affirming an insurer’s right to deny coverage to an insured apartment building owner following the shooting of a victim at that building by an unknown assailant, based on the unambiguous applicability of an assault and battery exclusion); Certain Underwriters at Lloyd’s London v. Karma Corner, LLC, Case No. 6:10-cv-830-Orl-28GJK, 2011 U.S. Dist. LEXIS 33105 (M. D. Fla. Mar. 28, 2011) (finding that an insurer had no obligation to defend or indemnify an insured against allegations that arose from a deadly shooting in the parking lot of the insured’s nightclub under a policy containing an assault and battery exclusion); First Fin. Ins. Co. v. Larosa, 49 Mass. App. Ct. 901, 901 (2000), rev. denied, 2000 Mass. LEXIS 467 (Mass. 2000) (affirming lower court holding that “the assault and battery exclusion in [a] liability policy issued by the insurer unambiguously denied coverage to the insured . . . as to the negligence action brought against it in connection with an intentional shooting, by independent persons, of a visitor to its premises”).
11 283 N.C. App. 215, 217 (2022).
13 Id. at 218.
14 Id. at 217.
15 Id. at 222.
16 Id. at 221.
17 Id. at 222.
18 Accord Chubb Nat’l Ins. Co. v. Estate of O’Block, No. 6:20-cv-03288-MDH, 2022 U.S. Dist. LEXIS 37401 (S.D. Mo. Mar. 3, 2022), appeal dismissed, 2022 U.S. App. LEXIS 37356 (S.D. Mo. May 31, 2022) (finding that an intentional act exclusion barred coverage for an underlying lawsuit arising from a death cause by a shooting perpetrated by the plaintiff’s insured); Auto-Owners Ins. Co. v. Harrington, 455 Mich. 377 (1997) (holding that an intentional act exclusion in a homeowner’s insurance policy applied to action undertaken by an insured in shooting an individual who was scaling the insured’s garage – even if that action was adopted in self-defense).
19Active Shooter Incidents in the United States in 2022, authored by the Federal Bureau of Investigation in collaboration with the Advanced Law Enforcement Rapid Response Training Center, https://www.fbi.gov/file-repository/active-shooter-incidents-in-the-us-2022-042623.pdf/view , at p. ii.
20 “The FBI defines an active shooter as one or more individuals actively engaged in killing or attempting to kill people in a populated area.” Id. at p. 1.
21 See e.g. https://www.fbi.gov/file-repository/active-shooter-incidents-in-the-us-2022-042623.pdf/view; https://www.libertyspecialtymarkets.com/product/war-and-terrorism-insurance-US.
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