By: Patricia McHugh Lambert, Esquire
There are too many.
There are simply too many mass shootings in this country. We have all seen the heartbreaking pictures of the aftermath of these shootings—shootings at concert venues, at nightclubs, at houses of worship, and at schools. While we may have the victims of these shootings “in our thoughts and prayers,” the personal toll of such events is wide-spread, horrific, and lasting. This article does not intend to minimize that personal pain or loss. Rather, its purpose is to discuss the potential risks that businesses face in the aftermath of large scale violent events and to discuss the new insurance market products that can be used to moderate these risks.
While there is no universally accepted definition of “mass shooting,” the general understanding of the concept seems to be a combination of two sub-categories of violent events, “mass killings” and “active shooters.” The Investigative Assistance for Violent Crimes Act of 2012 passed by Congress defines “mass killing” as “3 or more killings in a single incident” regardless of weapon. This definition, however, does not account for those injured, but who ultimately survived the incident. “Active shooter,” by contrast, is defined by the FBI as an individual or individuals actively engaged in killing or trying to kill people in a populated area.
Another term often thought to be synonymous with mass shootings is workplace violence. Astoundingly, more than 2 million Americans report being victims of violence in the workplace each year. Unfortunately, workplace violence is neither new nor unusual. But workplace violence is not necessarily the same as mass shootings. The term encompasses all violence or threats of violence against workers, even without gun violence or the scope of a mass killing.
The lack of a generally accepted definition for mass shooting as well as the varying descriptions of large scale incidents of violence and the common conflation of different terms for these incidents should raise concerns for those whose job it is to quantify risk, those who seek coverage to limit their exposure to these risks, and for those who may litigate issues stemming from these incidents of violence.
To understand the risks, one must start with the numbers. The FBI has, itself, reported that there were 20 “mass killings” incidents, with a 30 additional active shooter incidents, in 2016 and 2017. Other active and mass shooter threats have been aborted or prevented by good police work and, at times, reports of vigilant and concerned individuals close to the would-be shooters. An FBI study has noted that approximately 70 percent of active shooter incidents took place in “a commerce/business or educational environment.”
Following an active shooter or mass killing incident, like other mass casualty incidents, lawsuits can be quickly filed against the business or educational venue where the tragic event occurred. The thrust of each of these lawsuits is that the venue did not do enough to anticipate or prevent the incident.
According to some reports, more than seventy-five percent of the perpetrators of mass violence had, before the attack, made concerning statements or exhibited risky behavior. As a result, a cottage industry has arisen to train personnel to identity potential threats. Once a threat is identified, prevention or risk reduction protocols can be employed. If the venue does not have identification or prevention protocols in place, there is potential that the venue will be held liable for its failure to protect people from injuries that were “reasonably foreseeable.”
Because of this potential risk exposure, some insurers are seeing an increased demand for active and mass shooter policies. This specialized kind of named peril insurance policy is being underwritten by some insurers. Depending on the coverage, these policies provide not only liability protection but also provide trauma recovery resources. These named peril policies can provide coverage for:
- Crisis management.
- Counseling and support resources.
- Medical, disability, funeral expenses and death benefits.
- Revenue loss/extra expenses caused by the shooting.
- Property damage and tear down expenses.
- Required post event security upgrades.
- Litigation expense.
- Liability coverage.
Of course, such named peril policies have exclusions which should be reviewed carefully. Some policies exclude coverage for employees (presumably because there is worker’s compensation coverage elsewhere) and exclude coverage for injuries caused by vehicles. Other policies limit coverage to damage caused by firearms so that harm caused by explosive devices are not covered. These named perils policies are also specific in terms of the triggers for coverage, such as limiting coverage to where four or more individuals are attacked. As the threats increase, the named peril policy forms are evolving as for coverage, exclusions, conditions and limitations.
Certainly, where there is a risk, there needs to be policies that can help limit risk exposure. Until we can find a way to reduce the prevalence of active shooters and other perpetrators of violence against large groups of people, this is our new normal. All businesses and business venues need to consider what they can do to limit and militate against this active shooter risk.
Ms. Lambert has over 35 years of experience in handling complex commercial litigation and insurance matters. Ms. Lambert has worked on national class actions, significant litigation and regulatory matters for Fortune 500 companies. She has also assisted small and mid-sized companies and business executives with contract, real estate and commercial disputes that needed to be resolved quickly and efficiently. Ms. Lambert is best known as an attorney who knows the field of insurance. She has represented insurers, policyholders, and insurance producers in disputes both in court and before the Maryland Insurance Administration. She can be contacted by phone at 410-339-6759 or email at firstname.lastname@example.org.