Voluntary Insurance and Strict Liability as Good First Steps

Much of this blog is about how insurance should be designed and how it would work if an ideal insurance mandate was in place.  Opponents of such a mandate point out real and imagined problems that would prevent such insurance from working.  When the possibilities are examined the problems turn out only to apply to particular models of insurance and can be avoided by designing the insurance for the particular nature of guns and gun violence.

But there are also transitional problems that could block adoption of an insurance mandate that would work well once it was in place.  The most important of these problems is the fact that gun insurance that would protect victims does not exist currently.  The insurance that is designed to protect gun owners from accidental or self-defense incidents is very narrow and is not adapted to the need to protect victims even to the extent that existing liability laws could allow the redress in the courts.

Prior to the adoption of an insurance mandate for motor vehicles in Massachusetts in 1927 or New York in 1957, most motorists had voluntarily purchased insurance.  Voluntary in the sense that no law required insurance but coerced by the financial responsibility laws of the time.  A motorist who was involved in a crash could be required to put up a bond until the responsibility or damages resulting from the crash was resolved in the courts.  In the meantime an uninsured motorist could be denied the privilege of driving. This possibility caused 85% of the car owners in New York State to have insurance prior the adoption of the insurance mandate.  Because of the quasi-voluntary nature of this insurance; it was very lightly regulated, sold only to responsible motorists and very profitable to the insurance companies.  The insurance companies strongly opposed, then and now, the mandate.

Because of this history and situation, there was no problem knowing that insurers could and would supply suitable insurance to the motoring public when the mandate was adopted.  The situation with guns is very different.  Current gun liability and self-defense insurance is narrowly written so that a gun owner must be found to be negligent but not to have broken any laws in order for the insurance to make payments.  This is a very narrow zone and does not provide meaningful protection for shooting victims.

In order to move forward on the path to protection for gun violence victims, it would be very helpful for states to adopt some simple changes in existing laws.

  • Adopt absolute liability for the owner of a gun that is similar to the absolute liability for dog bites in California and about half of the states.
  • Make clear that a gun remains the property for the purpose of liability of an owner until it is transferred to another legal owner, especially in cases where control is not maintained over the weapon due to loss or theft.
  • Establish a duty for a gun owner or user to prevent accidental discharge of a gun or the striking of an unintended person by a projectile.  This is to create a presumption of negligence similar to the presumption of fault by a driver striking another vehicle in the rear or in many places striking a pedestrian.
  • Require that insurance sold in the state including group or affinity insurance not exclude intentional acts unless intentional from the viewpoint of the person injured.

These provisions will greatly increase the ability of the courts to provide meaningful recompense to gun victims.  They will also provide an incentive for gun owners to voluntarily buy insurance.  Without insurance in place, most attorneys will admit it is not economically practice to find recourse in the courts for injured persons.

Meaningful voluntarily purchased insurance would be a great benefit to society in itself as well an important step to insurance that protects all victims.

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