Author: Chris Boggs
Rocks being thrown by President Trump are causing major ripples in the insurance pond. His declaration that ANTIFA would be labeled a terrorist organization raised questions regarding whether coverage would be excluded, limited or provided by the various terrorism endorsements. Now his threat to invoke the Insurrection Act of 1807 has raised question of coverage because the word “insurrection" is found within various property exclusions.
While these are interesting coverage questions, the industry needs to step back and take a breath before jumping to conclusions. But given the facts of the recent months, it's reasonable for the industry to be on edge.
Given Trump's threat, does invoking the Insurrection Act of 1807 create a property coverage issue for insureds? In general, no; but let's explore the reasoning.
First, what does the Act allow? The original act reads:
An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.
APPROVED, March 3, 1807.
Although amended several times since its original approval, the Act allows the President to use the military to put down insurrections or groups that are obstructing the law. Its breadth is not limited to insurrectionists; any activity obstructing the laws appears to grant the President the right to send the military (although there are certain conditions he must follow before this can be done).
Since its approval, this Act had been invoked on several occasions including to aid in the enforcement of desegregation in the 1950s and during the race riots of the 1960s. Most recently it was used to quell the violence following the decision in the Rodney King trial in 1992.
So, this is not an unheard-of Presidential option. Invoking an Act does not alter or change the status of the actions leading to decision. Basically, the act does not serve to qualify the actions as insurrectionist acts.
Second, what is an insurrection and who qualifies as an insurrectionist?
- Insurrection: A violent revolt against an oppressive authority, usually a government. “Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society." (Black's Law Dictionary)
- Insurrectionist: A person who takes part in an armed rebellion against the constituted authority (especially in the hope of improving conditions) freedom fighter, insurgent, rebel.
Based on the initial purpose of the protests that led to riots in some cases, they were not acts of insurrection, nor were the participants insurrectionist.
Lastly, where is the exclusion found? In nearly every case, the “insurrection exclusion" is found within a broader exclusion, either the “War" exclusion or the “War and Military Action" exclusion. The only exception is the Personal Auto Policy. Following is the relevant exclusionary wording from several policies:
Homeowners' Policy Property Exclusion:
War includes the following and any consequence of any of the following:
a. Undeclared war, civil war, insurrection, rebellion or revolution;
Commercial Property (CP 10 30) Exclusion:
War And Military Action
(3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these.
Business Auto Coverage (Physical Damage):
War Or Military Action
(3) Insurrection, rebellion, revolution, usurped power or action taken by governmental authority in hindering or defending against any of these.
Personal Auto Policy (Physical Damage):
Loss due to or as a consequence of:
a. Radioactive contamination;
b. Discharge of any nuclear weapon (even if accidental);
c. War (declared or undeclared);
d. Civil war;
e. Insurrection; or
f. Rebellion or revolution.
Two legal concepts, Noscitur A Sociis and/or Ejusdem Generis limit the application of the insurrection exclusion. Both concepts essentially state that a term within a list is judged by the words around it and are not given their broadest possible meaning. More specifically, these concepts are defined as follows:
- Ejusdem Generis: Latin meaning, “of the same kind." In the construction of contracts, when certain things are enumerated, and then a phrase is used which might be construed to include other things, it is generally confined to things of the same type. General words are not to be construed in their widest extent but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.
- Noscitur A Sociis: Latin for, “the meaning of a word may be known by its accompanying words." The word or phrase is defined in its context.
Based on these legal concepts and given the context of the term “insurrection," it's apparent that the exclusion applies only when there is armed conflict in an attempt to revolt and/or overthrow a government. That does not seem to be what these protestors and rioters are attempting.
Is the Exclusion Triggered
Based on the above, the “insurrection" exclusion does not appear to be triggered by the invoking of the act. Further, even if the President, a Governor or the media calls this an insurrection, the various protests do not pass the "insurrection" test.
Saying the grass is purple does not make it purple. There are certain facts that must be applied before ultimately declaring a condition or action to be something. It's not insurrection just because a political figure or the news reports claims it is (generally for effect); what are the facts?
Overall, the activities of the protestors and rioters do not reach the level required to be considered an insurrection, nor does it appear the intent of the policy to exclude damage caused by insurrection applies to their actions. The exclusion does not apply.
Last Updated: June 4, 2020