Civil Liability

Relevant bills filed and their status

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dawg
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Civil Liability

#1

Post by dawg » Thu Jul 26, 2007 7:19 pm

Although you may be absolved of any criminal liability for using reasonable force to protect life or property, you will very likely face a civil suit for wrongful death or personal injury should the “victim� survive.



In the case of civil liability, some homeowners and personal liability umbrella policies may respond to defend and pay damages on your behalf in the event of a judgment.



All homeowners policies under the “Liability� section excluded coverage for occurrences which are “expected or intended� by the insured. However, some policies have an exception for “reasonable force used to protect life or property� or what is commonly called a “self defense clause�.



If your homeowners policy has such a clause (typical of ISO policies), you will likely have coverage and your umbrella or excess policy will also pick up coverage in most cases if the homeowners limits are exhausted.



In Texas, the standard bureau form (HO-A / B) does not have such a self defense exception and we are at the mercy of case law to interpret what is meant by “expected or intended�.



Does anyone know if the Texas courts have found in favor of “insureds� in cases where they have to defend such actions?



See the attached article for further discussion:



http://www.irmi.com/Expert/Articles/2006/Cooper01.aspx

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barres
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#2

Post by barres » Fri Jul 27, 2007 8:32 am

As of September 1, 2007, the Castle Doctrine will pull the teeth out of any lawsuit filed against someone because they justifiably used force to defend themselves. God bless Texas!
Remember, in a life-or-death situation, when seconds count, the police are only minutes away.

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#3

Post by kauboy » Mon Jul 30, 2007 11:44 am

barres wrote:God bless Texas!

AMEN!!! :txflag:
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Governments should be afraid of their people." - V

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#4

Post by stevie_d_64 » Mon Jul 30, 2007 12:14 pm

Sure does make you want to review your insurance policy doesn't it?

When I see the word "may" in a policy, it makes me cringe a little...Gives them an out, and them the ability to "choose" to honor the policy...

One more month folks...Its not a pass for anything, but it sure eases the burden in certain situations...
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#5

Post by AEA » Mon Jul 30, 2007 12:29 pm

I am willing to bet the the Bad Guys are going to be a bit more scarce in Texas after Sept. 1st.

This Civil Case business may have already saved their lives a bunch of times. I think they know this and will be more afraid of Texas CHL holders than ever before!
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barres
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#6

Post by barres » Mon Jul 30, 2007 1:06 pm

AEA wrote:I am willing to bet the the Bad Guys are going to be a bit more scarce in Texas after Sept. 1st.

This Civil Case business may have already saved their lives a bunch of times. I think they know this and will be more afraid of Texas CHL holders than ever before!
I think you give the vast majority of thugs way too much credit, myself.
Remember, in a life-or-death situation, when seconds count, the police are only minutes away.

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Re:

#7

Post by Liko81 » Wed Jan 02, 2008 11:28 am

AEA wrote:This Civil Case business may have already saved their lives a bunch of times. I think they know this and will be more afraid of Texas CHL holders than ever before!
Well it's not just CHL holders; anyone who owns a gun can use it to defend themselves, their family, their property, and anyone who expressly or by implication would be justified in using deadly force but is unable to do so, from a person engaged in the use of "unlawful force". This includes any crime involving forcible entry (B&E), forcible removal of a person (abduction), violent sexual offense (rape/sexual assault), violent assault (up to and including murder, but NOT simple assault) and/or robbery.

There was a POSSIBILITY, before the Doctrine with immunity passed, that an assailant or next-of-kin could sue for damages. It's based on case law especially in other states that basically says when you pull the trigger, you are responsible for every bullet that exits the barrel, where it goes, and what it does. Such claims are made and do win, especially in wrongful death suits because the assailant's criminal trial does not exist and therefore neither it nor the evidence and testimony given there are available as a defense. The new Stand-Your-Ground law basically gives the shooter the same level of backup; if the shooter was judged to be justified in the use of deadly force, the assailant by the definition of that justification was acting illegally and therefore has no legal standing to claim damages for injury or death. You can't break into a home, get mauled by a dog and claim damages; the same now applies if you are shot by the homeowner.

The possibility of lawsuit still exists; you are liable for missed or overpenetrating shots that cause collateral damage to people or property. The assailant may not file claims for damage to him or his property, but that's where immunity ends. Now, unless a bystander suffers a debilitating injury a lawsuit is highly unlikely, but the justification for your action does not relieve you of your responsibilities under Rule 4: you must think about what you will hit if you miss the target or once the bullet gets to the other side.

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Re: Civil Liability

#8

Post by TDDude » Wed Jan 16, 2008 9:14 pm

From the Castle Doctrine Senate Bill 378
SECTION 4. Section 83.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 83.001. AFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using force or deadly force under Subchapter C,
Chapter 9 Penal Code
SECTION 5. Chapter 83, Civil Practice and Remedies Code, is
amended by adding Section 83.002 to read as follows:
Sec. 83.002. COURT COSTS, ATTORNEY'S FEES, AND OTHER
EXPENSES. A defendant who prevails in asserting the affirmative
defense described by Section 83.001 may recover from the plaintiff
all court costs, reasonable attorney's fees, earned income that was
lost as a result of the suit, and other reasonable expenses
.

SECTION 6. (a) Sections 9.31 and 9.32, Penal Code, as
amended by this Act, apply only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is covered by the law in effect when the
offense was committed, and the former law is continued in effect for
this purpose. For the purposes of this subsection, an offense is
committed before the effective date of this Act if any element of
the offense occurs before the effective date.
(b) Section 83.001, Civil Practice and Remedies Code, as
amended by this Act, and Section 83.002, Civil Practice and
Remedies Code, as added by this Act, apply only to a cause of action
that accrues on or after the effective date of this Act. An action
that accrued before the effective date of this Act is governed by
the law in effect at the time the action accrued, and that law is
continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2007.
This is actually the most important part of this bill. At least it is to me. My biggest fear was not getting in trouble for defending myself but was for being sued by some scumbags mom because she sucked as a mother and raised a................... nevermind.

God Bless Texas!!
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Charles L. Cotton
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Re: Civil Liability

#9

Post by Charles L. Cotton » Wed Jan 16, 2008 10:16 pm

This language was in SB378 as filed, but unfortunately it was amended to get the bill out of committee. This is what was substituted and is now part of the Civil Practices & Remedies Code.

Chas.
Tex. Civ. Prac. & Rem. Code §83.001 wrote:CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.
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Re: Civil Liability

#10

Post by txinvestigator » Wed Jan 16, 2008 10:25 pm

Charles L. Cotton wrote:This language was in SB378 as filed, but unfortunately it was amended to get the bill out of committee. This is what was substituted and is now part of the Civil Practices & Remedies Code.

Chas.
Tex. Civ. Prac. & Rem. Code §83.001 wrote:CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.
Can you please explain further. I hear people say that "if you are no billed you can't be sued" and on and on. As I understand it, you CAN be sued, and the court will determine if you were justified under the law. Is that correct?
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Re: Civil Liability

#11

Post by ELB » Thu Jan 17, 2008 12:53 am

Liko81 wrote:
The possibility of lawsuit still exists; you are liable for missed or overpenetrating shots that cause collateral damage to people or property.
However, as I read the law quoted by Mr. Cotton:
§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.
I do not see a difference spelled out between personal injury or death to a BG, and personal injury or death to anyone else. It simply says if your use of force was justified, you are immune. Interesting. I hadn't realized that earlier.

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Re: Civil Liability

#12

Post by TDDude » Fri Jan 18, 2008 7:10 am

Charles L. Cotton wrote:This language was in SB378 as filed, but unfortunately it was amended to get the bill out of committee. This is what was substituted and is now part of the Civil Practices & Remedies Code.

Chas.
Tex. Civ. Prac. & Rem. Code §83.001 wrote:CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.
I searched around and couldn't find the final bill that became law. All I could find was what I found. It looks like what they ended up with has more protection for the homeowner.

Where did you find that?
Ray F.
Luke 22:35-38 "Gear up boys, I gotta go and it's gonna get rough." JC
-- Darrell Royal, former UT football coach - "If worms carried pistols, birds wouldn't eat 'em."
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Re: Civil Liability

#13

Post by barres » Fri Jan 18, 2008 11:06 am

TDDude wrote:
I searched around and couldn't find the final bill that became law. All I could find was what I found. It looks like what they ended up with has more protection for the homeowner.

Where did you find that?
Um, he was instrumental in getting that law (and many others relating to firearms, use of force, and CHL's) passed.
Remember, in a life-or-death situation, when seconds count, the police are only minutes away.

Barre


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Re: Civil Liability

#14

Post by Liko81 » Fri Jan 18, 2008 11:22 am

TDDude wrote:I searched around and couldn't find the final bill that became law. All I could find was what I found. It looks like what they ended up with has more protection for the homeowner.

Where did you find that?
Well, as it's now law, you can find it in the Civil Practice and Remedies Code: http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm. Section 83.001.

That site basically has all State laws available to read; very useful.
ELB wrote:I do not see a difference spelled out between personal injury or death to a BG, and personal injury or death to anyone else. It simply says if your use of force was justified, you are immune. Interesting. I hadn't realized that earlier.
Interesting interpretation, and you might plausibly argue that point. However, my interpretation of that law is that you are still responsible for every bullet that comes out of your gun, and every shot fired is the use of deadly force against whatever it hits, regardless of whom the deadly force was intended to be directed toward. Your use of deadly force, bullet by bullet, is justified only if that target was doing or attempting to do any action in Section 9 that justified deadly force as a response. Therefore, a miss or overpenetration that strikes anything other than the BG is your responsibility and you are not immune from suit. Even if that is not the case, it's a good mindset, in line with Rule 4 ("Always be sure of your target and what is around and beyond it").

You DO have a good defense in that missed and overpenetrating shots are a natural consequence of a shooting encounter. The FBI memo on Handgun Wounding Factors and Effectiveness states that even among trained LEOs, accuracy in terms of hit percentage on the intended target is VERY low. It also states that overpenetration should not be a more pressing concern than penetrating adequately. I paraphrase: "overpenetration has never been dangerous to the officer; failure to penetrate adequately on the other hand has indeed resulted in the deaths of officers". Your actions in deciding to shoot, your choice of an overpenetrating weapon and caliber, etc. are therefore no different than that of an LEO standing in your shoes. You should however avoid a "lesser of two evils" argument ("The shooter would have done worse"). While convincing to common sense, such an argument is an appeal to consequences ("ends justify the means") and also to speculation, and thus is NOT a valid legal argument.

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Re: Civil Liability

#15

Post by seamusTX » Fri Jan 18, 2008 1:28 pm

This law was intended to relieve a defender from civil liability claimed by the attacker, or the attacker's family. I'm not confident that this law will be interpreted to relieve a defender of liability for injury to an an innocent third party or property damage.

Injury of a third party could be considered reckless or an accident. It would depend upon the circumstances. In either case, the defender could be civilly liable.

We won't really know until a case lands in court.

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