Active Shooter Liabilities and Insurance Coverages

In 2020, the FBI issued a report on the number of active shooter incidents in the United States from 2000 through 2019.ⁱ The FBI defines an active shooter as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.”ⁱⁱ  Implicit in the FBI’s definition of active shooter is the shooter’s use of one or more firearms.  According to the FBI report, 333 active shooter incidents meeting its definition occurred in the U.S. during this time.  In 2022, the FBI reported that there were 61 active shooter attacks in the United States in 2021, up from 40 in 2020 and 30 in 2019.ⁱⁱⁱ The new high number in 2021 is a 52.5% increase from the previous year.^iv The number of casualties (killed and injured) in mass shootings increased from 164 in 2020 to 243 in 2021. The day after the releasee of the FBI 2021 numbers, the Robb Elementary School shooting occurred in Uvalde, Texas, killing 19 children and 2 adults.  The Uvalde shooting is the deadliest shooting in the history of Texas public schools.^v 

On the heels of the Uvalde shooting, active shooter incidents have been ubiquitous—on a pace of more than 2 per day.  In the 9 days immediately following the Uvalde attack, 20 shootings killed or injured at least 4 people each.^vi These occurred outside a bar in Michigan^vii, at a party in California^viii, in downtown Chattanooga, Tennessee^ix,  in downtown Philadelphia^x and at a medical building in Tulsa.^xi 

According to the 2020 FBI report, during the period 2000 to 2019, 96 active shootings took place in this country inside of businesses open to pedestrian traffic, with 41 happening in businesses closed to pedestrian traffic for a total of 137.  Open spaces recorded 50 active shooter incidents during this time.  Institutions of Higher Learning (IHL’s), Pre-K through 12 educational institutions, and school board meetings had a total of 62 such incidents during the period in question, a ranking placing educational environments in second place among the list of active shooter incident locations in the report.^xii  The educational location incidents resulted in 419 casualties with 179 deaths.^xiii The 2021 FBI report of 61 total attacks included 32 taking place in areas of commerce (killing 68 people and injuring 72) and 28 taking place in businesses open to pedestrian traffic including 2 at educational institutions and 3 at government facilities (killing 57 people and injuring 54).^xiv

With the occurrence of such incidents on the rise, many educational institutions are seeking insurance coverage for liabilities arising from them.  Standard terrorism insurance is not likely to cover many of the claims and expenses associated with an active shooter incident.  Though acts of terror target specific buildings or locations and thus, may trigger coverage under traditional terrorism policies requiring property damage, to trigger terrorism coverage, the motive of the attack must also be ideological, political, or religious, cause property and casualty losses more than $5 million and be deemed a certified act of terrorism by the U.S. Secretary of the Treasury.  

The FBI reports that in many active shooter incidents, the shooter has no connection to the location of the shooting, so these attacks are unpredictable. Many perpetrators of these attacks lack the types of motives required to constitute terrorism as the motives for such attacks are frequently unclear at best or unknown so the incidents would not likely qualify as certified acts of terrorism.  Therefore, terrorism policies may not cover many of the losses arising from an active shooter incident.  As for standard commercial general liability (CGL) coverage for such incidents, the language of these policies is usually vague at best on this point as most were written well before the recent surge in active shooter incidents.  Some CGL policies specifically exclude active shooter incidents from the scope of their coverage.  

As a result, the private insurance market is stepping up and responding to the demand for specialized, stand-alone coverages (often in the form of named peril policies) that insure against the specific and broad array of losses that can result from active shooter incidents.  In some instances, this coverage will act as gap coverage when some CGL applies and where property damages may also be covered under other insurance.  Typically, these policies, known as ‘active assailant insurance,” offer coverage for everything from first-party physical damage and third-party legal liability claims to reimbursement for medical and funeral bills, death benefits, and psychological counseling; from coverage for business interruption and loss of attraction to help with brand rehabilitation to risk assessment and crisis management services.  

Although active shooter coverage has been available since 2011, interest in it increased sharply after 2016 as mass shootings began to spike. In 2018, there was a ten-fold increase in the purchase of this type of coverage after the Parkland school shootings that year, according to an A.M Best Company report released in 2019. Since the 2018 shooting, 7 south Florida school districts have purchased over $3 million of active shooter coverage, according to Best.^xv