PDA

View Full Version : Self Defense Legal insurance?


Brumey
12-19-2008, 6:12 PM
Hello:
I am a recent firearms owner with a primary purpose of self defense at home. After some reading and a CCW class, I am getting paranoid about the possibility of having to shoot someone and deal with the aftermath of legal trouble and costs. I am someone who learns the rules, takes training and has a respect for human life (even the bad guys). However, if it comes to them or me, it's a no brainer. Equally, my self defense weapons of choice are .45 ACP or for my wife .357 Mag. The net result to the bad guy would most likely be terminal.

So, not wanting to screw my life up completelly and not having $100K+ to pay the bills, I am looking for insurance. I see the NRA endorse a couple of policies throughan unknown company. The cost is about $250 a year for $100K coverage. I have not seen the small print yet so cannot comment. I have also reached out to my home insurance broker (State Farm) to see if my home liability covers me.

My questions for the group are:

1) Can anyone recomend an insurance company/policy that would cover the legal costs without too many loopholes?
2) Has anyone had the misfortune of having to use such a policy and did it work?
3) Anyone using or can comment on the NRA sponsored policy?

Any advice welcome. I don't mind paying a little for the piece of mind.

Thanks
Kevin
becoming a 1911 fan!

Librarian
12-19-2008, 7:01 PM
Years ago I asked my State Farm agent about that; he suggested that would be covered under the general liability insurance associated with our homeowner's policy.

I haven't tested that, and Things May Have Changed.

There is also something called Personal Liability Umbrella coverage you should look at.

See also Homeowners Policies and Acts of Self-Defense (http://www.irmi.com/Expert/Articles/2006/Cooper01.aspx); apparently self defense in CA is not 'misconduct' (or wasn't in 1960) so it is not excluded under liability policies. Of course, there are just as many courts that have held that self-defense is an exception to the intentional injury exclusion in the homeowners liability policy. These courts take the position that an injury resulting from an act committed by an insured in self-defense is not an expected or intended injury pursuant to the intentional injury exclusion clause in the homeowners liability insurance policy. Some courts view the intentional injury exclusion as designed to apply only to misconduct or wrongful acts. See:

*

Walters v. American Ins. Co., 185 Cal. App. 2d 776, 8 Cal. Rptr. 665 (1st Dist. 1960) (injury was not "intentional" under the provisions of a comprehensive personal liability endorsement in an automobile liability policy containing a clause excluding injuries "caused intentionally by or at the direction of the insured"; court held that an element of wrongfulness or misconduct is connoted by the intentional injury exclusion and self-defense does not involve misconduct, so not excluded);
But check with your agent for sure. If you think gun law is a can of worms ...

ETA: I was curious, so I checked FindLaw to see what cited Walters. Humor me with this digression ... :rolleyes:

Turns out the courts still, apparently, hold that the Walters ruling is correct - 47 years has not changed their minds.
Jafari v. EMC Ins. Companies (2007) , Cal.App.4th
[No. B192640. Second Dist., Div. Seven. Sep. 26, 2007.]

This is a coverage action by an insured against his insurer stemming from an action in which a customer sued the insured for, among other claims, assault and battery committed by the insured's business's manager in an altercation with the customer on the business' premises. The insurer moved for summary judgment claiming the manager's actions allegedly taken in self-defense were nevertheless intentional and deliberate, and thus outside the policy's coverage for "accidents." The trial court granted the insurer's motion for summary judgment and dismissed the action. Because existing case law indicates acts committed by an insured in self-defense can be deemed an "accident," the underlying case raised the possibility of coverage under the policy. We thus conclude the trial court erred in finding the insurer had no duty to defend the insured on the ground the manager's acts were deliberate and intentional. Accordingly, we reverse.
Of course, there's no way of predicting how an individual case might be resolved, but it seems one should not automatically assume one's liability coverage would not apply in the case of acts of self-defense. Undoubtedly the exact language of the policy would be critical, so professional review is called for.

Riodog
12-19-2008, 9:15 PM
I carry an 'unbrella policy' on my homeowners insurance. It got a lil sticky as the Auto Club requires you to have all of your vehicles, home, etc., insured by them. Having a 'drag boat' that they will not insure and a second home that they will not insure led to some rather intense discussions about their intelligence. I got my umbrella policy even though State Farm carry's the other insurance.
Rio

sholling
12-19-2008, 9:32 PM
There is a company that sells insurance through the NFA that offers self defense insurance. I'm not sure if it's a standalone policy or a rider to a homeowners policy but it even covers (if memory serves) criminal defense up to 50K. I'm with the others though in that I have a 500 liability policy on my home and a 1M umbrella. The thing is that they usually require a minimum of 500k on your home and car before you can get an umbrella.

CCWFacts
12-19-2008, 10:09 PM
Any ordinary umbrella personal liability policy will protect you from the civil consequences of a self-defense shooting the same as it covers you against any other personal civil matters.

There's no such thing as insurance for criminal liability. If you shoot in self-defense and get criminally charged, you must ride that out on your own. The best advice for that is, if there's any doubt about whether a situation calls for a gun or not, it doesn't.

The good news is that, in California, a man's home is his castle. A violent intruder breaking into someone's home is a deep violation of our society's rules. If such an intruder ends up getting shot, in one's own home, prosecutors are not inclined to prosecute and jurors are not inclined to convict.

There are a bunch more articles about self-defense shooting and what to do and not to do afterwards. One of the fundamental can't-go-wrong rules is to say, "I was afraid for my life. I will not make any more statements until I have talked with my lawyer."

lehn20
12-19-2008, 10:12 PM
Check out the NRA programs

sholling
12-20-2008, 7:20 PM
The good news is that, in California, a man's home is his castle. A violent intruder breaking into someone's home is a deep violation of our society's rules. If such an intruder ends up getting shot, in one's own home, prosecutors are not inclined to prosecute and jurors are not inclined to convict.
Unless something as changed California does not have a castle doctrine. What you are allowed to do is use appropriate and necessary force to defend you life or your family's. You may not shoot an intruder, even an armed intruder in your home only to defend property and you are required to retreat if necessary to avoid confrontation even in your own home. Their is no legal assumption of justification (castle doctrine). It's up to the local DA to decide to accept your story of self defense or to make a name for him or her self by taking you to trail.

On top of that if the intruder survives you can count on being sued for using excessive forces and if he doesn't survive you can count on the next of kin suing for wrongful death.

Dr Rockso
12-20-2008, 7:27 PM
You may not shoot an intruder, even an armed intruder in your home only to defend property and you are required to retreat if necessary to avoid confrontation even in your own home.

:fud:
California has no duty to retreat.

sholling
12-20-2008, 7:29 PM
:fud:
California has no duty to retreat.If you're going to call BS document it.

Dr Rockso
12-20-2008, 7:33 PM
If you're going to call BS document it.

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry had occurred. Great bodily injury means a significant or substantial physical injury. (Penal Code 198.5.)

sholling
12-20-2008, 7:35 PM
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry had occurred. Great bodily injury means a significant or substantial physical injury. (Penal Code 198.5.)
It seems that the law has recently changed and I will stand corrected.

Dr Rockso
12-20-2008, 7:46 PM
It might not be codified into law the same way it is in the "castle doctrine" states, but the principle is the same. If you shoot someone who has broken into your home, it is automatically presumed that you held a reasonable fear of death or severe injury. If you held a reasonable fear of death or severe injury, the shooting is justified.

This doesn't mean that a DA won't take you to court, but the law IS on your side.

Librarian
12-20-2008, 11:28 PM
It seems that the law has recently changed and I will stand corrected.

Recently? Lexis says of PC 198.5 HISTORY:

Added Stats 1984 ch 1666 1.

NOTES:
Note

Stats 1984 ch 1666 provides:

SEC. 2. This act shall be known and may be cited as the Home Protection Bill of Rights.

Legislative Intent

The legislative history of Pen. Code, 198.5, indicates that the statute was enacted to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give the benefit of the doubt in such cases to the resident, establishing a presumption that the very act of forcible entry entails a threat to the life and limb of the homeowner. Thus the presumption was implemented to promote a public policy and affects the burden of proof. People v. Owen (1991, Cal App 5th Dist) 226 Cal App 3d 996, 277 Cal Rptr 341, 1991 Cal App LEXIS 19, review denied (1991, Cal) 1991 Cal LEXIS 1283.

Go to Topic List 3. Applicability

Pen C 198.5 creates a rebuttable presumption that anyone who employs deadly force against an intruder within his residence has done so in reasonable fear of imminent peril of death or great bodily injury; by its terms, the presumption benefits only residents defending their homes. People v. Silvey (1997, Cal App 4th Dist) 58 Cal App 4th 1320, 68 Cal Rptr 2d 681, 1997 Cal App LEXIS 894, review denied (1998, Cal) 1998 Cal LEXIS 404.

Go to Topic List 4. Construction

Under the Home Protection Bill of Rights, enacted in 1984 and codified as Pen C 198.5, the use of deadly force by a homeowner is presumed to be in response to a reasonable fear of imminent deadly danger. The question of proportionality is thus tilted in favor of the homeowner. Insofar as prior case law could be read as granting home invaders the right of imperfect self-defense to resist attempts at forcible eviction by a residential homeowner, such a construction was no longer tenable. People v. Hardin (2000, Cal App 1st Dist) 85 Cal App 4th 625, 102 Cal Rptr 2d 262, 2000 Cal App LEXIS 960, review denied (2001, Cal) 2001 Cal LEXIS 1581.

Although The California Home Protection Bill of Rights, Cal. Penal Code 198.5, creates a rebuttable presumption that a homeowner acts reasonably when he or she uses force against a person who unlawfully and forcibly enters his or her home, the act of walking up a person's driveway cannot reasonably be interpreted as forcibly entering a residence. Duran v. City of Maywood (2000, 9th Cir Cal) 221 F3d 1127, 2000 US App LEXIS 15851.

Scout2Diesel
12-21-2008, 12:58 AM
I think any firearm owner would be wise to carry insurance:

A Comprehensive Personal Liability Policy (alone or with a Homeowners or Renters Policy which can cover the Firearms from loss too.)

This coverage includes a duty to defend you for non intentional acts of negligence, even if it is frivolous. If you are negligent a third party may be indemnified (payed for medical expense or property damage)

If you also own property, investments, will receive an inheritance and/or have job skills in which you earn a moderate income. The next level of protection is a Personal Umbrella Policy.
It will usually follow and enhance the coverage of your Comprehensive Personal Liability (and your auto, RV, Boat, ect.), increasing the available limit of coverage. Your legal defense is usually paid in addition to and outside of your coverage limits. When the coverage limits are exhausted your legal defence is no longer provided.


At this point your on your own and must provide your own legal defence. Generally, if you own a business and are acting in that capacity it is excluded from a personal insurance policy.

So...please review your personal situation... seek the advise of a competent licensed agent that your trust.

Happy Holidays!

sholling
12-21-2008, 6:04 AM
Recently? Lexis says of PC 198.5I said recently because the reference that I looked up showed the last change as 2006. Do you have a problem with that?

Beelzy
12-21-2008, 8:10 AM
Know a good Attorney and sleep well at night.

Insurance will turn its back on you, or try and throw a few measly $$ at the
issue. We all know nobody sues for chump change anymore.

Librarian
12-21-2008, 12:17 PM
I said recently because the reference that I looked up showed the last change as 2006. Do you have a problem with that?

Nope. I'm just not old enough that 1984 seems recent to me (and my children are older than that). CA hasn't always been insane about guns and self defense; the "Home Protection Bill of Rights" was put in place before that trend brought us to where we are now.

ETA: Perhaps you might post the reference you used so we can see what part of the PC it actually meant was modified in 2006. I'm sure you're accurately reporting what it said.

bwiese
12-21-2008, 12:25 PM
unless something as changed California does not have a castle doctrine.

Wrong.

California indeed has something pretty much the equivalent of the 'castle doctrine'. It's been around for awhile, 198.5 PC. It's perhaps not quite as ultrastrong as those in other states, but it's plenty good enough.

There is no duty to retreat, that would have to be codified additionally.

If you have a reasonable, articulable fear of life & limb for you or someone else, and didn't just shoot the guy for stealing your VCR, you're in good shape as long as you didn't say something stupid ("the gun went off accidentally"). If you're in your home, and in fear of an intruder who unlawfully/forcibly enters your home, you don't have to hide in the closet or run away.

Paladin
12-25-2008, 3:39 PM
What we don't have and need is the rest of the NRA's model Castle Doctrine law, where it applies to wherever you are legally entitled to be (e.g., inside your car defending yourself against a carjacker; on the street using your CCW to defend yourself against a rapist; etc.) as well as granting you immunity from civil lawsuits if you prevail on the criminal side.

http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=188

Fortifying The Right To Self-Defense


"Law is order, and good law is good order," Aristotle said. Without doubt, Florida's recently enacted "Castle Doctrine" law is good law, casting a common-sense light onto the debate over the right of self-defense. It reverses the pendulum that for too long has swung in the direction of protecting the rights of criminals over the rights of their victims. Despite predictable howling from the anti-gun media elite that Florida was taking an unprecedented and dangerous action, in truth it joined 24 other states that reject "duty-to-retreat" laws.

Passed overwhelmingly in the state legislature--unanimously in the Senate and 94-20 in the House--;the new law removes the "duty to retreat" when citizens are outside of their homes and where they have legal right to be. It says that if a criminal breaks into your home or occupied vehicle or a place where you are camping overnight, for example, you may presume that he is there to do bodily harm and use any force, including deadly force, to protect yourself from a violent attack. Floridians who defend themselves from criminal attack are shielded by the new law from criminal prosecution and from civil suits brought by their attackers.

In testifying for the bill, Marion P. Hammer, executive director of Unified Sportsmen of Florida, said: "No one knows what is in the twisted mind of a violent criminal. You can't expect a victim to wait before taking action to protect herself and say: 'Excuse me, Mr. Criminal, did you drag me into this alley to rape and kill me or do you just want to beat me up and steal my purse?'"

Florida's "Castle Doctrine" law does the following:

One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, so the occupant may use force, including deadly force, against that person.

Two: It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others.

Three: It provides that persons using force authorized by law shall not be prosecuted for using such force. It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them. In short, it gives rights back to law-abiding people and forces judges and prosecutors to focus on protecting victims.

Posted: 2/6/2006 12:00:00 AM

ryang
12-26-2008, 8:42 AM
A Comprehensive Personal Liability Policy includes a duty to defend you for non intentional acts of negligenceNote the part I highlighted. Self-defense is considered an intentional act and therefore isn't covered by most homeowner and umbrella policies. Unless your policy explicitly states it provides self-defense coverage then you aren't covered.

artherd
12-26-2008, 8:58 AM
It seems that the law has recently changed and I will stand corrected.

It has not recently changed, this has been around for 20+ years.

Cnynrat
12-26-2008, 9:02 AM
... The cost is about $250 a year for $100K coverage. I have not seen the small print yet so cannot comment. ...

Regardless, $100k doesn't seem like anywhere near enough coverage for this type of risk. I would guess that if the BG's family is going to sue, the starting bid is going to be 7 figures.

I'd start by trying to confirm your homeowners liability would cover you for this type of risk.

Scout2Diesel
12-29-2008, 8:52 PM
Note the part I highlighted. Self-defense is considered an intentional act and therefore isn't covered by most homeowner and umbrella policies. Unless your policy explicitly states it provides self-defense coverage then you aren't covered.

Hmm... interesting point but policies general do not 'list' coverage per say its usally a very general broad statment... Then they do list specific Exclusions. You would be reading to make sure it is not Excluded. The Insurance Co. may have an exclusion of coverage and still provide representaiton under the duty to defend.

I would think self defense would be the reaction of a reasonable person... I was in fear for my life ... Certainly if you shot them after they could no longer fight or were fleeing then you might, or might not be intending to do harm. Either way thats illegal and could be argued negligence too.

I'm not a Attorney but it does not seem to be good public policy to call the action of the victims self defense an intentional act. When it is the ensuing responce to a felony attack. From a Resonable Person standard I could not see self defense being intentional...it seems a natural act to defend your person.

In a Civil suit you would be defending against Intentional acts and Negligence (If the Plaintiff Attorney is on the ball). The Negligence claim could trigger your Duty to defend coverage maybe with a reservation of rights (to not pay damages if the policy excludes coverage.)





Know a good Attorney and sleep well at night.

Insurance will turn its back on you, or try and throw a few measly $$ at the
issue. We all know nobody sues for chump change anymore.

Your good Attorney will be wishing you good luck when you need a $100,000 in defense work and wish to pay in chump change.

If you don't have proper coverage and limits... you are not covered. If Insurance Co's don't honor their duty too defend there are Attorneys that specialize in that area of law and may win a nice payment for all your trouble.

Insurance is no different than anything else you get what you pay for.

Bottom line:

Your education in all of these matters is your first line of defense

Research and buy the best Insurance coverage obtainable (or choose to self insure if you can take that risk. I doubt that's our average Joe sixgun here.http://www.quantcast.com/calguns.net)

Everyone here should be carrying, with them always, the phone number of one of the Attorneys recommended here on CGN. You may, someday, need a specialist.... If your served a Civil suit have them file your claim after reviewing your policy(ies).... or save up for his nice big check for his solo work.



Happy New Year!

Librarian
12-29-2008, 9:08 PM
Note the part I highlighted. Self-defense is considered an intentional act and therefore isn't covered by most homeowner and umbrella policies. Unless your policy explicitly states it provides self-defense coverage then you aren't covered.

That may be true in some places, and it's a very good idea to check with one's own agent, but the info I supplied in post #2, above, suggests CA case law is not in agreement with "Self-defense is considered an intentional act and therefore isn't covered".

becxltoo984
12-29-2008, 9:14 PM
:("Mejor Me Traigas Tabaco En La Carcel, Que Flores Ha El Cemetario" ... Tobacco In Jail Than Flowers To My Grave) - Old Spanish Saying via Gabe Suarez. ...

Riodog
12-29-2008, 10:02 PM
Note the part I highlighted. Self-defense is considered an intentional act and therefore isn't covered by most homeowner and umbrella policies. Unless your policy explicitly states it provides self-defense coverage then you aren't covered.

More FUD...I specifically stated that I would 'put down' any intruder in my home without a written invitation and the AAA came back with 'it is covered up to the limit of the policy", provided I was not involved in any criminal act. They specifically stated that they would not cover any liability connected with my drag boat and I had to go to State Farm for the coverage on that.
If I were a practicing LEO at this point in time I would still carry a liability policy just the same.
Rio

Doheny
12-29-2008, 10:12 PM
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert crime>) has passed. This is so even if safety could have been achieved by retreating."

http://www.justia.com/criminal/docs/calcrim/3400/3470.html


.

eltee
12-29-2008, 10:56 PM
In addition to umbrella "all perils" liability coverage that can be added as part of a homeowners insurance package of policies (homeowner, firearms rider, vehicle, etc.) some folks carry a pre-paid legal insurance plan. As a cop, we get the services of the city attorney (assuming he/she is on the side going after us) but we also have legal coverage (errors and omissions, criminal prosecution, discipline) from the union and we often pay out of pocket for supplemental pre-paid insurance services. Proving you are right in a shooting should not be hard, paying for someone to prove it in court can be costly. The public defender may help you in criminal courts, but you are on your own in civil for the most part.

The person whom you were forced to shoot (or his survivors) may not succeed in taking your home and possessions away from you, but the costs of your own criminal and civil legal defense just might.

ryang
12-30-2008, 11:39 AM
More FUD...I specifically stated that I would 'put down' any intruder in my home without a written invitation and the AAA came back with 'it is covered up to the limit of the policy", provided I was not involved in any criminal act.When AAA "came back" did they do so verbally or in writing? If it was the former, ask them to send it to you in writing signed on company letterhead and see what happens. I won't hold my breath.

ryang
12-30-2008, 11:53 AM
That may be true in some places, and it's a very good idea to check with one's own agent, but the info I supplied in post #2, above, suggests CA case law is not in agreement with "Self-defense is considered an intentional act and therefore isn't covered".

Here's a quick primer for those who may not be versed in the subject: http://www.irmi.com/Expert/Articles/2006/Cooper01.aspx

And here's an example of how confusing case law can be: http://www.gordonrees.com/pubs/ins_bulletin_062807.cfm

Then there's this case (Jafari v. EMC Insurance Companies), where the insurance policy stated it covered self-defense yet EMC denied coverage: http://www.insurlaw.com/news/news-oct07.htm

The last two cases happened since I originally looked for case law in '05. It's nice to see things are swinging in this direction but it seems like you may have to sue your insurance company to get them to provide coverage. Paying out of pocket for two lawsuits (even if you win both and get your money back) doesn't sound very fun.

Librarian
12-30-2008, 3:10 PM
Here's a quick primer for those who may not be versed in the subject: http://www.irmi.com/Expert/Articles/2006/Cooper01.aspx

And here's an example of how confusing case law can be: http://www.gordonrees.com/pubs/ins_bulletin_062807.cfm

Then there's this case (Jafari v. EMC Insurance Companies), where the insurance policy stated it covered self-defense yet EMC denied coverage: http://www.insurlaw.com/news/news-oct07.htm

The last two cases happened since I originally looked for case law in '05. It's nice to see things are swinging in this direction but it seems like you may have to sue your insurance company to get them to provide coverage. Paying out of pocket for two lawsuits (even if you win both and get your money back) doesn't sound very fun.

That second link is pretty interesting - The Court reasoned that when one acts reasonably in self-defense the conduct is not even tortious. From this the Court concluded excessive force used in self-defense is properly characterized as non-intentional tortious conduct and a form of negligence. Since the term "accident" is not defined in the policy, excessive force used in self-defense qualifies as an "accident" since an "accident" exists "when any aspect in the causal series of events leading to the injury . . . was unintended by the insured and a matter of fortuity." (Citing Merced Mut. Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.) However, the Court held that whether ACSC had a duty to indemnify, and whether any breach of the duty to indemnify was in bad faith, involved factual issues that could not be resolved on demurrer.... but whether the insurance company was wrong to deny coverage is not determined (and, if I read this correctly, is the reason the court issued a new opinion).

Lesson: don't count on your insurance blindly!

BitterVoter
12-31-2008, 12:19 AM
I am sure that someone could and would start an insurance company to provide this service if there were enough money in it.

I guess the real question is, is it truly profitable? Would the average home owner be willing to pay for this insurance?