By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli
New York, NY -(Ammoland.com)- On January 17, 2017, Assistant Speaker of the New York State Assembly, Felix W. Ortiz, a Democrat, introduced a bill in the New York State Assembly aimed directly at gun owners.
The bill, A2260, if enacted, would require all firearm owners to purchase liability insurance for their firearms. The bill would amend the Insurance Law of the State. A2260 would require gun owners to obtain and to maintain liability insurance in an amount not less than $250,000.00 to cover damages resulting from the negligent use of that firearm.
Failure to hold such insurance would result “in the immediate revocation of such owner’s registration, license and any other privilege to own such firearm.” The bill exempts peace officers.
This bill is nothing new, really. It is simply a repackaged version of earlier bill that State Senator Ortiz introduced to the New York State Assembly in 2013: AB 3908. The earlier bill was even more ambitious. Had the New York State Legislature enacted the earlier bill, the owner of a firearm would be required to obtain and maintain liability insurance in the amount of one million dollars. Moreover, the insurance would have had to cover damages for both negligent and willful acts involving use of a firearm owned by the policy holder.
You will note that nothing in either bill addresses the party who might be responsible for causing negligent or intentional harm.
The 2013 bill went nowhere. Ortiz made changes, reflected in the newer version of the bill, to exclude liability for intentional acts—a matter obviously of great concern to insurers.
As of this date, to the best of our knowledge and belief, no State has successfully enacted legislation mandating that gun owners purchase and maintain liability insurance on the firearms they own.
There is a good reason for this. Insurance companies don’t want to be embroiled in gun liability. It is an expensive proposition for them. If so, insurance companies won’t wish to provide such insurance. That raises another problem. Suppose a State, such as New York, does enact such legislation, requiring all gun owners to obtain and to maintain liability insurance. There is nothing in the bill—A2260 or AB3908—that requires insurance companies to provide such coverage. And, if insurance companies refuse, en masse, to provide such coverage, where does that leave gun owners? Not in a good place, for sure. For this would mean that law-abiding gun owners could not lawfully retain the guns they presently own. And, if they are required to show a gun dealer that they have gun liability insurance coverage as a condition to purchasing a new firearm, New York gun owners would not be able to purchase an additional firearm as they would not be able to obtain gun liability insurance.
They would not be able to do so because insurance companies wouldn’t provide gun owners with gun liability coverage.
Liability insurance is simply another gimmick, conceived by antigun groups, to make gun acquisition a difficult and expensive, if not altogether impossible, process for the average, law-abiding, rational American citizen. Antigun groups won’t say this, of course. They analogize gun liability insurance to auto insurance. They argue that the purpose is to promote safe handling of firearms and to compensate injured parties. But insurance companies that offer casualty insurance are not likely to wish to get into the business of insuring against negligent, much less intentional, harm resulting from misuse of firearms.
But, suppose States, through legislation, required insurance companies to offer gun liability coverage if insurance companies wished to continue to do business in the State. Some insurers may very well simply leave the State. But, those companies that remained would find themselves in the gun business and in the gun business in a way they certainly wouldn’t want to be. To reduce risk to their “bottom line,” companies would likely institute rigorous, draconian screening procedures for prospective policy holders.
Screening procedures could include requirements that policy holders undergo extensive mental and physical examinations. Insurers may mandate that policy holders undertake firearm safety training on a regular basis. One academician writes:
“encouraging or mandating liability insurance to cover more firearms-related injuries would shift some of the costs associated with this harm to property casualty insurers, thereby creating greater financial incentives for them to utilize their expertise in classifying and spreading risk, promoting gun safety, and engaging in other risk mitigation strategies. Within the insurance world, health, life, and disability insurers currently bear the financial costs of firearm violence, at least to the extent that victims have such insurance coverage.” Liability Insurance and Gun Violence, 46 Conn. Law Review 1265, 1271 (May 2014), by Peter Kochenburger, Associate Clinical Professor of Law and Executive Director, Insurance Law Center, University of Connecticut School of Law.
Another Academician, writing in the same periodical, points out that, “Proponents of compulsory liability insurance for gun owners hope that insurance would provide a source of monetary compensation for shooting victims and their families, while serving as a source of private regulation that would determine who may have a firearm, create incentives for insurers to require firearm owners to take care that their weapons are not involved in gun crime, and place the costs created by guns onto their owners.” Insuring Against Guns? 46 Conn. Law Review 1209, 1211 (May 2014), George A. Mocsary, Assistant Professor, Southern Illinois School of Law.
Mandating firearm liability insurance is clearly problematic. The same writer says, “Opponents, including insurers, have argued that, instead of achieving its stated goals, compulsory insurance would likely compensate only a few shooting victims, would not impact gun possession by those who misuse firearms, would create incentives for gun owners to be less careful with their weapons, and would be problematic to implement. Some also raise concerns that forcing firearm owners to insure themselves and their weapons may suffer from constitutional infirmities. Id. At 1212.
Lost in the discussion of guns and insurance is the fact that gun owners do often obtain insurance for the firearms they own. But, they do so to protect their guns for risk of loss.
“Although homeowners’ insurers ask about gun ownership in the course of their underwriting, they do not ask that question for purposes of liability underwriting. Rather, they ask to evaluate whether the applicant needs a special rider to cover the theft or damage of a valuable gun. Insurers selling commercial insurance policies to gun retailers do consider loss prevention during their underwriting, but they are more concerned with safeguarding guns and weapons from theft or other property damage than with reducing liability risks.” “Twenty-first century litigation: pathologies and possibilites: a symposium in honor of Stephen Yeazell: regulation by liability insurance: from auto to lawyers professional liability, 60 UCLA Law Review 1412, 1432.
Antigun groups—fast to enact draconian new antigun laws—remain unconcerned about pragmatic considerations, or even ethical ones; and they are altogether oblivious to Constitutional constraints. Their single-minded obsession with guns is directed to making it exceedingly onerous for the average person to own and possess them.
Restrictive gun bills that are drafted and restrictive gun laws that are ultimately enacted are done so with a feverish intensity with little if any regard to the negative impact such legislation has on the rights and liberties of individuals living in a free Republic; and with little or no regard to the administrative burdens such legislation places on public agencies, taxed with carrying out the legislation; and with little or no regard to the negative impact such legislation has on business and, therefore, on the economic well-being of our Nation.
New York’s latest ridiculous antigun legislation—A2260—mandating that all gun owners in New York purchase and maintain liability insurance for their firearms will, as with the previous bill, go nowhere. Nor should it go anywhere. NYS Assemblyman Ortiz has drafted his bill with no comprehension of how the casualty insurance industry operates. He has no conception of the import of our Nation’s Bill of Rights. And, he obviously has little if any regard for the rights of law-abiding gun owners.
Someone might suggest to Ortiz that he take a refresher course on the meaning and purpose of our Constitution. Were he to take a course in freshman economics and bone up a bit on casualty insurance basics, that wouldn’t hurt either.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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