Newspaper reports point out that the Washington, D.C. Navy Yard mass murderer had glaring reasons in his background to deny him access to places like the Navy Yard. "Federal contractors who conducted a background check on Aaron Alexis when he enlisted in the military knew that he falsely reported that he had never been arrested or charged with any firearms offenses but he nevertheless was granted a security clearance, Navy officials disclosed Monday." Craig Whitlock, "Aaron Alexis Didn't Report Gun Arrest During Background Check, Received Clearance" (Washington Post Online Monday, September 23, 2013). [Emphasis added.] The background checkers knew more than that apparently. They also allegedly knew, for example, that the mass murderer they were checking had been arrested a couple of times, and that on at least one police report the police wrote down that the killer told them that he heard voices before he got violent -- and the police sent a copy of the police report to the Navy to check it out.
The background checker on the Navy Yard killer is a private contractor for the Office of Personnel Management. Joe Davidson, "Does Profit Motive Affect Security Clearance Investigations?" (Washington Post Online Monday, September 23, 2013). Parenthetically, the checker on the mass murderer's background is the same checker on the background of Mr. Ed Snowden who reportedly leaked NSA secrets to certain members of the public press. Michael S. Schmidt, "Shooter Said Electronic Brain Attacks Drove Him to Violence, F.B.I. Says" p. A17, col. 1 (New York Times Nat'l ed., Thursday, September 26, 2013). The background checkers on Mr. Snowden reportedly contacted his mom and his fiancée. Those two are the only persons the checker checked with, allegedly.
There is a clear possibility of claims against the contractor. The claims will or may come in a multitude of ways. There seem to be grounds for perhaps alleging intentional torts, or alleging negligence in that they knew or should have known the backgrounds, or some other bases of liability.
When these claims are alleged, much will depend of course on how they are alleged, if at all, in the eyes of a Court. Will Directors and Officers Coverage be implicated as to the directors and officers of the background checker of the mass murderer? If he had not received clearance, he would not have been in the Navy Yard, his shotgun would not have been there either, and since he and his shotgun would not have been there, it can be argued, his finger could not have pulled the trigger and killed 12 people before he killed himself.
Would there be CGL ("Commercial General Liability") Coverage or its equivalent under these reported circumstances, either for an "occurrence" resulting in "property damage" or "bodily injury," or for an "offense" resulting in "personal injury"?
Would there be E&O Coverage or its equivalent, if any, for the Errors and Omissions of the background-checker-corporation?
The insurance coverage questions will not be answered by the Courts until after the liability claims come, of course. The application of Exclusions may prevent coverage under insurance policies altogether in cases like these.
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