Insurance Coverage for Gun Injuries

For example, in Garrison v. State Farm Mutual Automobile Insurance Co., 258 Kan. 547 (1995), two men were hunting doves from a car. They occasionally stopped the car to shoot birds, and between stops they stowed their guns between the front seats with barrels pointed down. At one point, after noticing some birds, they decided that the passenger would exit to hunt, but the driver would continue on to the end of a line of trees and hunt there. While the passenger was exiting the car, his gun fired, injuring the driver. The driver sued his automobile insurer, State Farm, seeking personal injury protection benefits, and also sued the passenger for negligence. Coverage for the negligence claim was sought under both the State Farm policy and the passenger's automobile insurance policy issued by Dairyland.

The Kansas Supreme Court agreed with the insurers that the car must have been more than the “situs” of the injury to trigger their coverage obligations. A “minimal causal connection” between the use of the vehicle and the injury was required for the injury to “arise” from the use of the vehicle. Nevertheless, the court held that the policies provided coverage because the car was being used to transport hunters and the gun discharged while the passenger was exiting the vehicle.

While courts often hold that injuries resulting from the handling of a gun in a vehicle during a planned hunting trip are covered under automobile policies, courts are not so generous when a gun injury results from “horsing around” in a vehicle. In Colonial Insurance Co. of California v. Lumpkin, 207 Ga. App. 376 (1993), four men were driving around at night in a Chevrolet Blazer, drinking beer. The driver stopped and exited the truck. Meanwhile, a passenger was handling the driver's pistol. The pistol discharged, injuring another passenger. The Georgia Court of Appeals, on review of a summary judgment motion, denied coverage, holding that the injury did not “arise” from the use of the vehicle. On motion for reconsideration, the court considered differing testimony regarding the passenger's reason for handling the gun, including testimony that the vehicle occupants decided to tell the hospital staff that they had seen a rabbit and had been attempting to get out of the car to shoot it. The court applied what it called a “common-sense” analysis, and denied the motion for reconsideration, determining that negligent handling, not use of the car, caused the injury. The truck was being used to “ride around” and “[t]he use of the vehicle did not take on the nature of a hunting trip just because [a passenger] might have seen a rabbit.”

Garrison and Lumpkin both involved gun accidents, but the issue of whether car insurance provides coverage for gun injuries also arises in cases of intentional shootings.

In Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo. 1992), a driver insured by State Farm was on the highway in a white 1984 Mustang when he was boxed in on the right lane by three cars ' one in front, one behind, and one to the left. The passenger in the car to the insured's left shot the insured. The assailants had previously had a fight with the insured and others, during which the former had thrown rocks and bottles at the white Mustang. Afterwards, the assailants had been looking for an opportunity to shoot one of the individuals with whom they had fought, and were able to identify the insured by his Mustang.

Coverage was sought under an uninsured motorist provision that required State Farm to pay damages “arising out of the operation, maintenance or use of an uninsured motor vehicle.” Because the assailant had used his vehicle to trap the Mustang in order to shoot the insured, the Colorado Supreme Court determined that there was a sufficient causal connection between the assailant's use of his vehicle and the shooting injury, and therefore the injury was covered.

The court also held that the insured's injuries were covered under the no fault personal injury provision of his policy. The provision provided coverage, the court determined, if the insured's vehicle was being used in a manner not foreign to its “inherent purpose,” and that use was a “but for” cause of the injury. The insured's driving of his car, a use not foreign to its purpose, had led the assailants to identify the insured as one of their adversaries from the previous altercation, and then to shoot him. The injuries therefore resulted from the insured's use of his own car, and were covered under the no fault provision.

Mough v. Progressive Max Insurance Co., 314 Ga. App. 380 (2012), provides a contrasting case. There, a daughter, driving her father's car with her sister as a passenger, passed and cut in front of a motorcycle. The motorcyclist pulled up beside the car at a stoplight and tried to intimidate the daughter by staring at her. In response, the daughter made an obscene gesture. The motorcyclist began following the car, and the driver's sister called their mother to tell her they were being followed. Then, when the driver stopped the car at a stop sign, the motorcyclist pulled up beside her. Both vehicles started forward, but the daughter turned left and collided with the motorcycle. She did not stop. The mother, in the meantime, had told her husband that their girls were being followed.

The father waited in the driveway with his gun. The daughter pulled the car into the driveway, and the motorcyclist rode slowly by on the street. When the motorcyclist turned around at the end of the street, the father shot and killed him. The parents and estate of the motorcyclist sued the daughter, her family, and the motorcyclist's uninsured motorist carrier, which provided coverage for damages the motorcyclist was legally entitled to recover from an uninsured motorist “arising out of the ownership, maintenance, or use of an uninsured motor vehicle.”

On appeal of a grant of summary judgment to the insurer, the insured's family and estate argued that the daughter's vehicle, an “uninsured motor vehicle” under the motorcyclist's policy, was used to lead the motorcyclist to his death, and therefore the death arose out of the use of the vehicle. The Georgia Court of Appeals, despite acknowledging that only a slight causal connection between the injury and the vehicle was required, held that the shooting did not arise out of the daughter's use of the vehicle. The vehicle may have led the motorcyclist to pass by the daughter's house, but the death was caused by the father's “independent actions.”

In both Mough and Cung La, coverage did not turn on whether the shootings were intentional. In other cases, however, the intentionality of a shooting is determinative of whether or not the resulting injuries are covered.

Accidental or Intentional?

Insurance policies often only cover “accidents,” and many policies also contain a specific exclusion for intentional harm. Though these two provisions may be subject to different interpretations, both generally require an investigation into the extent a particular outcome was intended or expected. That determination may seem relatively straightforward in the case of gun injuries. Some shootings, however, turn what appears to be a clear delineation ' between accidental injuries and intended or expected injuries ' into a blurry line. Two Michigan Supreme Court decisions involving the same set of facts, Allstate Insurance Co. v. McCarn, 466 Mich. 277 (2002) (McCarn I) and Allstate Insurance Co. v. McCarn, 471 Mich. 283 (2004) (McCarn II), show how problematic the distinction can become.

In McCarn I, Kevin and Robert, two 16-year-old friends, were playing at the home of Robert's grandparents. Robert removed a shotgun from under his grandparents' bed. Both boys handled the gun. When Robert had the gun, he pointed it at Kevin's face from about a foot away to frighten Kevin into sharing some animal crackers. When Kevin refused, Robert pulled the trigger. The gun fired, killing Kevin. The gun was not normally left loaded, and Robert testified that he did not believe the gun was loaded when he pulled the trigger.

Kevin's estate brought an action against Robert and his grandparents. Allstate, the issuer of the grandparents' homeowners insurance policy, sought a declaratory judgment that it had no duty to indemnify Robert or his grandparents. The Allstate policy covered “accidents,” but did not define the term. The appeals court, affirming a trial court decision, determined that the shooting was not a covered accident. The Michigan Supreme Court disagreed.

Whether an act that results in harm is an “accident” depends, the court held, on a subjective inquiry into the actor's intentions. Where the consequence was not intended, then an act is an accident unless the insured “intentionally create[d] a direct risk of harm.” Robert did not believe the gun was loaded. Therefore, the court held, Robert did not intend to create a risk that Kevin would be shot, and the death was a covered accident. Justice Young, in a dissenting opinion, strongly disagreed, arguing that an objective standard should apply. According to Justice Young, an intentional act is not an accident where the consequences should reasonably have been expected. The dissent noted that Robert was the last person to use the gun before it was stored under the bed, and Robert did not remember whether he had unloaded it before storing it. Nor did Robert verify that the firearm was unloaded before playing with it the day of Kevin's death. Under those circumstances, Justice Young argued, Robert should reasonably have expected that the weapon might discharge.

Though an objective standard was not applied by the majority in McCarn I, an objective standard was applied to the same facts by the majority opinion in Mcarn II. In the latter, the court was confronted with the question of whether, even if the shooting was an “accident,” it was excluded from coverage by the policy's “criminal-acts exclusion.” The exclusion applied to bodily injury or property damage “intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person.” Unlike in McCarn I, the court applied an objective standard to determine whether Robert reasonably should have expected harm to result from his intentional act of pulling the trigger.

The objective standard required, the court decided, an evaluation of what a reasonable person would have expected if “possessed of the totality of facts possessed by Robert.” Robert did not believe the gun to be loaded, and so the reasonable person in the objective inquiry also would not believe the gun to be loaded. Since a reasonably person would not expect an unloaded gun to fire, the death was not excluded from coverage under the criminal-acts provision.

Justice Young, as in McCarn I, dissented, this time charging that the majority, though purporting to apply an objective standard, was in fact applying a subjective one by accepting Robert's conclusion that the gun was unloaded as a fact the reasonable person must take as determinative. A reasonable person could have come to a different conclusion regarding the risk of pulling the trigger based on other facts Robert knew ' that he neither checked to see whether the gun was loaded nor remembered unloading the gun during its last use.

In both McCarn I and McCarn II, Justice Young was concerned with how much the majority was crediting Robert's testimony as to his own expectations of what would occur when he pulled the trigger. Though Justice Young's more skeptical approach was not credited by the majority, other courts analyzing similar questions have more closely adhered to Justice Young's approach.

For example, in Allstate Insurance Co. v. Cannon, 644 F. Supp. 31 (E.D. Mich. 1986), Rutland argued with James on the street, and Cannon, Rutland's friend, witnessed the exchange. Cannon and Rutland went to Cannon's home, where Cannon gave the still angry Rutland a loaded rifle. Rutland returned to the scene of the argument and fired two warning shots and then a third shot in self-defense. Rutland killed James and wounded a bystander. Cannon claimed he did not know what Rutland intended to do with the rifle. James' estate and the bystander sued Cannon for negligence in giving the rifle to Rutland. Allstate, which had issued a homeowner's insurance policy to Cannon, filed for a declaratory judgment, arguing there was no coverage for the injuries in the underlying action.

As in McCarn I and McCarn II, the policy only applied to an “accident” that resulted in injury and specifically excluded injuries “either expected or intended” by the insured. The court granted the insurer's motion for summary judgment. As the court tersely noted, “[r]ifles are used for shooting,” and Cannon gave a loaded rifle to a man Cannon knew had been in a fight, was angry, and was returning to the scene of the fight. Under these circumstances, the court held, Cannon's act and the resulting gunshot injuries were not “accidents,” and even if they were accidents, would be excluded because they were “expected.” “Cannon's deposition testimony that he did not expect the injuries,” the court stated in conclusion, “is too incredible to be believed.”

Coverage for Systemic Risk?

The final significant coverage issue relating to gun injuries is less specifically tied to a particular type of insurance provision. On a number of occasions, plaintiffs have attempted to hold gun manufacturers, distributors, and dealers liable for practices allegedly leading to increased gun violence. The application of various insurance provisions to these actions is complicated because the lawsuits typically seek to hold the insured liable not for causing one particular gun injury, but for the creation of systemic risk resulting in many gun injuries.

In General Agents Insurance Company of America, Inc. v. Midwest Sporting Goods Co., 328 Ill. App. 3d 482 (2002), for example, the City of Chicago and Cook County sued gun manufacturers and distributors, including Midwest Sporting Goods, for negligently entrusting guns and creating a public nuisance. Midwest's insurer filed an action seeking a declaration it had no duty to defend or indemnify Midwest. The complaint in the underlying lawsuit alleged a number of purchases at Midwest locations by undercover officers. One officer purchased an Uzi, but because the weapon could not be purchased in Cook County, the sales clerk used a purchase order with another Midwest location's masthead and then instructed the officer to pick up the Uzi there. The officer also asked for a pistol barrel for the weapon. The sales clerk told him it was illegal to put the pistol barrel on the Uzi, so the sales clerk would have to put the pistol barrel on a separate purchase order from the store the officer was then in (not the one at which he was later to pick up the Uzi). When the officer picked up the Uzi, he was advised by a Midwest employee to put it in his truck because he would be arrested if caught with it in Cook County.

Two undercover officers also purchased a gun together at a Midwest store, and the sales clerk registered the sale to one officer while letting the other officer pay for the gun. The officer in whose name the gun was purchased was impersonating a straw purchaser (someone buying a gun for another). On multiple occasions, Midwest also wrote one purchase of several guns up on separate purchase orders so as to avoid U.S. Bureau of Alcohol Tobacco and Firearms (ATF) scrutiny. The complaint alleged that these and other incidents evidenced a pattern of practices whereby Midwest sold guns to Chicago residents who indicated they would use or possess the guns in violation of Chicago ordinances, sold guns to customers who demonstrated their intent to transfer the guns to others illegally, and sold multiple guns to individual Chicago residents.

In the declaratory judgment action, the court first determined that an intentional act exclusion in the policies did not preclude coverage because the provision applied only if there was an actual intent to harm. Nevertheless, the court went on to explain, none of the injuries alleged were covered “accidents” under the policies. An injury is not an accident when the insured knew or should reasonably have known there was a “substantial probability” the harm would result. According the complaint, Midwest knew from ATF reports that its sales practices and advice to customers facilitated the supply of guns to an illegal secondary market, from which guns were purchased by persons inclined to use them in ways involving an unreasonable risk of harm. The court conceded that the probability of criminal misuse from any particular gun sale may have been small. The “pattern and practice” of gun sales Midwest engaged in and the harm that resulted, however, was not an “accident.”

In Brazas Sporting Arms, Inc. v. American Empire Surplus Lines Insurance Co., 220 F.3d 1 (1st Cir. 2000), Brazas, a firearms distributor, was named as a defendant in two lawsuits charging that Brazas, along with other manufacturers and dealers, had flooded the handgun market in excess of the reasonable demand of lawful consumers. This conduct allegedly created an unlawful firearms market that supplied the guns that killed or wounded plaintiffs. Empire, Brazas' insurer, denied coverage and refused to defend Brazas. The primary issue on appeal of the district court's grant of summary judgment for Empire was whether or not the damages were excluded by a products-completed operations provision. The provision excluded from coverage damages “occurring away from premises” Brazas owned or rented and “arising out of” Brazas' products no longer in Brazas' “physical possession.”

The court first determined that the provision excluded more than defective product claims, and applied to all product related injuries. Then, the court turned to the question of whether the injuries in the underlying actions arose from Brazas' products, and were therefore excluded from coverage. Brazas argued that the underlying lawsuit alleged that Brazas' business management and strategy, not its products, caused injury. The court held that the theory of liability plaintiffs had “contrived” in order to pursue gun manufacturers and dealers was not determinative. The “immediate source” of plaintiffs' harm, the court decided, was firearms. Therefore, the injuries arose out of Brazas' products no longer in Brazas' physical possession, and were excluded from coverage.

Conclusion

Whether or not the recent national attention paid to gun violence in the United States results in any reforms, insurers will almost certainly continue playing a significant role in providing compensation for gun-related injuries. That role has been, and will continue to be, shaped by the already well developed, if occasionally contradictory, case law addressing disputes over insurance coverage for gun injuries.

Chet A. Kronenberg, a member of this newsletter's Board of Editors, is a litigation partner in the Los Angeles office of Simpson Thacher & Bartlett LLP. Colin H. Rolfs is a litigation associate in the same office.

Recent tragedies have again focused the national attention on the problem of gun violence in the United States. The insurance industry is no stranger to gun-related claims. Although myriad scenarios give rise to such claims, three coverage issues tend to predominate in these cases.

Gun Accident or Car Accident?

From simple hunting trips to drive-by shootings, it is not uncommon for car use and gun use to overlap. When gun injuries result from such overlap, does automobile insurance cover the damage? Car insurance generally provides coverage for damages that arise out of the use of an insured vehicle. When the insured vehicle is nothing more than the location of a gun injury, the insurance policy will not provide coverage. However, where the use of the vehicle is sufficiently intertwined with the events causing the gun injuries, courts have found that the automobile policy provides coverage.

For example, in Garrison v. State Farm Mutual Automobile Insurance Co. , 258 Kan. 547 (1995), two men were hunting doves from a car. They occasionally stopped the car to shoot birds, and between stops they stowed their guns between the front seats with barrels pointed down. At one point, after noticing some birds, they decided that the passenger would exit to hunt, but the driver would continue on to the end of a line of trees and hunt there. While the passenger was exiting the car, his gun fired, injuring the driver. The driver sued his automobile insurer, State Farm, seeking personal injury protection benefits, and also sued the passenger for negligence. Coverage for the negligence claim was sought under both the State Farm policy and the passenger's automobile insurance policy issued by Dairyland.

The Kansas Supreme Court agreed with the insurers that the car must have been more than the “situs” of the injury to trigger their coverage obligations. A “minimal causal connection” between the use of the vehicle and the injury was required for the injury to “arise” from the use of the vehicle. Nevertheless, the court held that the policies provided coverage because the car was being used to transport hunters and the gun discharged while the passenger was exiting the vehicle.

While courts often hold that injuries resulting from the handling of a gun in a vehicle during a planned hunting trip are covered under automobile policies, courts are not so generous when a gun injury results from “horsing around” in a vehicle. In Colonial Insurance Co. of California v. Lumpkin , 207 Ga. App. 376 (1993), four men were driving around at night in a Chevrolet Blazer, drinking beer. The driver stopped and exited the truck. Meanwhile, a passenger was handling the driver's pistol. The pistol discharged, injuring another passenger. The Georgia Court of Appeals, on review of a summary judgment motion, denied coverage, holding that the injury did not “arise” from the use of the vehicle. On motion for reconsideration, the court considered differing testimony regarding the passenger's reason for handling the gun, including testimony that the vehicle occupants decided to tell the hospital staff that they had seen a rabbit and had been attempting to get out of the car to shoot it. The court applied what it called a “common-sense” analysis, and denied the motion for reconsideration, determining that negligent handling, not use of the car, caused the injury. The truck was being used to “ride around” and “[t]he use of the vehicle did not take on the nature of a hunting trip just because [a passenger] might have seen a rabbit.”

Garrison and Lumpkin both involved gun accidents, but the issue of whether car insurance provides coverage for gun injuries also arises in cases of intentional shootings.

In Cung La v. State Farm Automobile Insurance Co. , 830 P.2d 1007 (Colo. 1992), a driver insured by State Farm was on the highway in a white 1984 Mustang when he was boxed in on the right lane by three cars ' one in front, one behind, and one to the left. The passenger in the car to the insured's left shot the insured. The assailants had previously had a fight with the insured and others, during which the former had thrown rocks and bottles at the white Mustang. Afterwards, the assailants had been looking for an opportunity to shoot one of the individuals with whom they had fought, and were able to identify the insured by his Mustang.

Coverage was sought under an uninsured motorist provision that required State Farm to pay damages “arising out of the operation, maintenance or use of an uninsured motor vehicle.” Because the assailant had used his vehicle to trap the Mustang in order to shoot the insured, the Colorado Supreme Court determined that there was a sufficient causal connection between the assailant's use of his vehicle and the shooting injury, and therefore the injury was covered.

The court also held that the insured's injuries were covered under the no fault personal injury provision of his policy. The provision provided coverage, the court determined, if the insured's vehicle was being used in a manner not foreign to its “inherent purpose,” and that use was a “but for” cause of the injury. The insured's driving of his car, a use not foreign to its purpose, had led the assailants to identify the insured as one of their adversaries from the previous altercation, and then to shoot him. The injuries therefore resulted from the insured's use of his own car, and were covered under the no fault provision.

Mough v. Progressive Max Insurance Co. , 314 Ga. App. 380 (2012), provides a contrasting case. There, a daughter, driving her father's car with her sister as a passenger, passed and cut in front of a motorcycle. The motorcyclist pulled up beside the car at a stoplight and tried to intimidate the daughter by staring at her. In response, the daughter made an obscene gesture. The motorcyclist began following the car, and the driver's sister called their mother to tell her they were being followed. Then, when the driver stopped the car at a stop sign, the motorcyclist pulled up beside her. Both vehicles started forward, but the daughter turned left and collided with the motorcycle. She did not stop. The mother, in the meantime, had told her husband that their girls were being followed.

The father waited in the driveway with his gun. The daughter pulled the car into the driveway, and the motorcyclist rode slowly by on the street. When the motorcyclist turned around at the end of the street, the father shot and killed him. The parents and estate of the motorcyclist sued the daughter, her family, and the motorcyclist's uninsured motorist carrier, which provided coverage for damages the motorcyclist was legally entitled to recover from an uninsured motorist “arising out of the ownership, maintenance, or use of an uninsured motor vehicle.”

On appeal of a grant of summary judgment to the insurer, the insured's family and estate argued that the daughter's vehicle, an “uninsured motor vehicle” under the motorcyclist's policy, was used to lead the motorcyclist to his death, and therefore the death arose out of the use of the vehicle. The Georgia Court of Appeals, despite acknowledging that only a slight causal connection between the injury and the vehicle was required, held that the shooting did not arise out of the daughter's use of the vehicle. The vehicle may have led the motorcyclist to pass by the daughter's house, but the death was caused by the father's “independent actions.”

In both Mough and Cung La, coverage did not turn on whether the shootings were intentional. In other cases, however, the intentionality of a shooting is determinative of whether or not the resulting injuries are covered.

Accidental or Intentional?

Insurance policies often only cover “accidents,” and many policies also contain a specific exclusion for intentional harm. Though these two provisions may be subject to different interpretations, both generally require an investigation into the extent a particular outcome was intended or expected. That determination may seem relatively straightforward in the case of gun injuries. Some shootings, however, turn what appears to be a clear delineation ' between accidental injuries and intended or expected injuries ' into a blurry line. Two Michigan Supreme Court decisions involving the same set of facts, Allstate Insurance Co. v. McCarn , 466 Mich. 277 (2002) ( McCarn I ) and Allstate Insurance Co. v. McCarn , 471 Mich. 283 (2004) ( McCarn II ), show how problematic the distinction can become.

In McCarn I, Kevin and Robert, two 16-year-old friends, were playing at the home of Robert's grandparents. Robert removed a shotgun from under his grandparents' bed. Both boys handled the gun. When Robert had the gun, he pointed it at Kevin's face from about a foot away to frighten Kevin into sharing some animal crackers. When Kevin refused, Robert pulled the trigger. The gun fired, killing Kevin. The gun was not normally left loaded, and Robert testified that he did not believe the gun was loaded when he pulled the trigger.

Kevin's estate brought an action against Robert and his grandparents. Allstate, the issuer of the grandparents' homeowners insurance policy, sought a declaratory judgment that it had no duty to indemnify Robert or his grandparents. The Allstate policy covered “accidents,” but did not define the term. The appeals court, affirming a trial court decision, determined that the shooting was not a covered accident. The Michigan Supreme Court disagreed.

Whether an act that results in harm is an “accident” depends, the court held, on a subjective inquiry into the actor's intentions. Where the consequence was not intended, then an act is an accident unless the insured “intentionally create[d] a direct risk of harm.” Robert did not believe the gun was loaded. Therefore, the court held, Robert did not intend to create a risk that Kevin would be shot, and the death was a covered accident. Justice Young, in a dissenting opinion, strongly disagreed, arguing that an objective standard should apply. According to Justice Young, an intentional act is not an accident where the consequences should reasonably have been expected. The dissent noted that Robert was the last person to use the gun before it was stored under the bed, and Robert did not remember whether he had unloaded it before storing it. Nor did Robert verify that the firearm was unloaded before playing with it the day of Kevin's death. Under those circumstances, Justice Young argued, Robert should reasonably have expected that the weapon might discharge.

Though an objective standard was not applied by the majority in McCarn I, an objective standard was applied to the same facts by the majority opinion in Mcarn II. In the latter, the court was confronted with the question of whether, even if the shooting was an “accident,” it was excluded from coverage by the policy's “criminal-acts exclusion.” The exclusion applied to bodily injury or property damage “intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person.” Unlike in McCarn I, the court applied an objective standard to determine whether Robert reasonably should have expected harm to result from his intentional act of pulling the trigger.

The objective standard required, the court decided, an evaluation of what a reasonable person would have expected if “possessed of the totality of facts possessed by Robert.” Robert did not believe the gun to be loaded, and so the reasonable person in the objective inquiry also would not believe the gun to be loaded. Since a reasonably person would not expect an unloaded gun to fire, the death was not excluded from coverage under the criminal-acts provision.

Justice Young, as in McCarn I, dissented, this time charging that the majority, though purporting to apply an objective standard, was in fact applying a subjective one by accepting Robert's conclusion that the gun was unloaded as a fact the reasonable person must take as determinative. A reasonable person could have come to a different conclusion regarding the risk of pulling the trigger based on other facts Robert knew ' that he neither checked to see whether the gun was loaded nor remembered unloading the gun during its last use.

In both McCarn I and McCarn II, Justice Young was concerned with how much the majority was crediting Robert's testimony as to his own expectations of what would occur when he pulled the trigger. Though Justice Young's more skeptical approach was not credited by the majority, other courts analyzing similar questions have more closely adhered to Justice Young's approach.

For example, in Allstate Insurance Co. v. Cannon , 644 F. Supp. 31 (E.D. Mich. 1986), Rutland argued with James on the street, and Cannon, Rutland's friend, witnessed the exchange. Cannon and Rutland went to Cannon's home, where Cannon gave the still angry Rutland a loaded rifle. Rutland returned to the scene of the argument and fired two warning shots and then a third shot in self-defense. Rutland killed James and wounded a bystander. Cannon claimed he did not know what Rutland intended to do with the rifle. James' estate and the bystander sued Cannon for negligence in giving the rifle to Rutland. Allstate, which had issued a homeowner's insurance policy to Cannon, filed for a declaratory judgment, arguing there was no coverage for the injuries in the underlying action.

As in McCarn I and McCarn II, the policy only applied to an “accident” that resulted in injury and specifically excluded injuries “either expected or intended” by the insured. The court granted the insurer's motion for summary judgment. As the court tersely noted, “[r]ifles are used for shooting,” and Cannon gave a loaded rifle to a man Cannon knew had been in a fight, was angry, and was returning to the scene of the fight. Under these circumstances, the court held, Cannon's act and the resulting gunshot injuries were not “accidents,” and even if they were accidents, would be excluded because they were “expected.” “Cannon's deposition testimony that he did not expect the injuries,” the court stated in conclusion, “is too incredible to be believed.”

Coverage for Systemic Risk?

The final significant coverage issue relating to gun injuries is less specifically tied to a particular type of insurance provision. On a number of occasions, plaintiffs have attempted to hold gun manufacturers, distributors, and dealers liable for practices allegedly leading to increased gun violence. The application of various insurance provisions to these actions is complicated because the lawsuits typically seek to hold the insured liable not for causing one particular gun injury, but for the creation of systemic risk resulting in many gun injuries.

In General Agents Insurance Company of America, Inc. v. Midwest Sporting Goods Co. , 328 Ill. App. 3d 482 (2002), for example, the City of Chicago and Cook County sued gun manufacturers and distributors, including Midwest Sporting Goods, for negligently entrusting guns and creating a public nuisance. Midwest's insurer filed an action seeking a declaration it had no duty to defend or indemnify Midwest. The complaint in the underlying lawsuit alleged a number of purchases at Midwest locations by undercover officers. One officer purchased an Uzi, but because the weapon could not be purchased in Cook County, the sales clerk used a purchase order with another Midwest location's masthead and then instructed the officer to pick up the Uzi there. The officer also asked for a pistol barrel for the weapon. The sales clerk told him it was illegal to put the pistol barrel on the Uzi, so the sales clerk would have to put the pistol barrel on a separate purchase order from the store the officer was then in (not the one at which he was later to pick up the Uzi). When the officer picked up the Uzi, he was advised by a Midwest employee to put it in his truck because he would be arrested if caught with it in Cook County.

Two undercover officers also purchased a gun together at a Midwest store, and the sales clerk registered the sale to one officer while letting the other officer pay for the gun. The officer in whose name the gun was purchased was impersonating a straw purchaser (someone buying a gun for another). On multiple occasions, Midwest also wrote one purchase of several guns up on separate purchase orders so as to avoid U.S. Bureau of Alcohol Tobacco and Firearms (ATF) scrutiny. The complaint alleged that these and other incidents evidenced a pattern of practices whereby Midwest sold guns to Chicago residents who indicated they would use or possess the guns in violation of Chicago ordinances, sold guns to customers who demonstrated their intent to transfer the guns to others illegally, and sold multiple guns to individual Chicago residents.

In the declaratory judgment action, the court first determined that an intentional act exclusion in the policies did not preclude coverage because the provision applied only if there was an actual intent to harm. Nevertheless, the court went on to explain, none of the injuries alleged were covered “accidents” under the policies. An injury is not an accident when the insured knew or should reasonably have known there was a “substantial probability” the harm would result. According the complaint, Midwest knew from ATF reports that its sales practices and advice to customers facilitated the supply of guns to an illegal secondary market, from which guns were purchased by persons inclined to use them in ways involving an unreasonable risk of harm. The court conceded that the probability of criminal misuse from any particular gun sale may have been small. The “pattern and practice” of gun sales Midwest engaged in and the harm that resulted, however, was not an “accident.”

In Brazas Sporting Arms, Inc. v. American Empire Surplus Lines Insurance Co. , 220 F.3d 1 (1st Cir. 2000), Brazas, a firearms distributor, was named as a defendant in two lawsuits charging that Brazas, along with other manufacturers and dealers, had flooded the handgun market in excess of the reasonable demand of lawful consumers. This conduct allegedly created an unlawful firearms market that supplied the guns that killed or wounded plaintiffs. Empire, Brazas' insurer, denied coverage and refused to defend Brazas. The primary issue on appeal of the district court's grant of summary judgment for Empire was whether or not the damages were excluded by a products-completed operations provision. The provision excluded from coverage damages “occurring away from premises” Brazas owned or rented and “arising out of” Brazas' products no longer in Brazas' “physical possession.”

The court first determined that the provision excluded more than defective product claims, and applied to all product related injuries. Then, the court turned to the question of whether the injuries in the underlying actions arose from Brazas' products, and were therefore excluded from coverage. Brazas argued that the underlying lawsuit alleged that Brazas' business management and strategy, not its products, caused injury. The court held that the theory of liability plaintiffs had “contrived” in order to pursue gun manufacturers and dealers was not determinative. The “immediate source” of plaintiffs' harm, the court decided, was firearms. Therefore, the injuries arose out of Brazas' products no longer in Brazas' physical possession, and were excluded from coverage.

Conclusion

Whether or not the recent national attention paid to gun violence in the United States results in any reforms, insurers will almost certainly continue playing a significant role in providing compensation for gun-related injuries. That role has been, and will continue to be, shaped by the already well developed, if occasionally contradictory, case law addressing disputes over insurance coverage for gun injuries.

Chet A. Kronenberg, a member of this newsletter's Board of Editors, is a litigation partner in the Los Angeles office of Simpson Thacher & Bartlett LLP. Colin H. Rolfs is a litigation associate in the same office.