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I love dog bite coverage cases. And there are a lot of them. So that’s a good thing. But that also means that there are a lot of dog bites. And since I also love dogs -- that’s not such a good thing. It’s a real double-edge sword. [As mentioned in Lauren Kelly’s article in the last issue of Coverage Opinions, the Insurance Information Institute reported earlier this summer that, in 2013, dog bites accounted for a whopping one-third of all dollars paid for homeowner’s liability claims.]
The New Mexico federal court’s decision in State Farm v. Bell, No. 13-666 (D.N.M Aug. 22, 2014), [enhanced version available to lexis.com subscribers], is as interesting of a dog bite coverage case as you’ll see. That’s because the case is as much about the dog as the insurance policy.
The facts were succinctly stated by the court: “On January 17, 2009, Melissa LaBarre, the then teacher of Sophia Bell, was at the Bells’ residence to drop off a kitten. [The kitten is not relevant – but it’s nice that the case offers something for cat people too.] Ms. LaBarre brought Jeb [a 65-pound lab/boxer mix] with her on the trip, because after leaving the Bells’ Ms. LaBarre intended to drop Jeb off at her parents’ home while she ran errands. Ms. LaBarre left Jeb inside her vehicle parked in the Bells’ driveway while she went into the Bells’ residence. Ms. LaBarre was inside the Bells’ residence between 15–45 minutes. At the completion of their visit, Ms. LaBarre, Sophia, and Sophia's mother, Theresa Bell, went out to the driveway. Sophia remained outside the vehicle, although she may have leaned into the car, and attempted to hug Jeb. Sophia was face to face with Jeb because of the height of the SUV. Jeb growled and barked at Sophia and ultimately bit Sophia. Ms. LaBarre and Ms. Bell immediately separated Sophia and Jeb. Sophia experienced serious injuries to her face, requiring a number of reconstructive surgeries.”
The Bells made a claim under their underinsured motorist policy with State Farm. It was not disputed that Ms. LaBarre was an underinsured motorist under the policy. At issue was this: “In order for [the Bells] to be entitled to compensation under their insurance policy, the injury must have ‘aris[en] out of the operation, maintenance, or use of an uninsured motor vehicle.’” The Bells argued that it was. State Farm argued that it was not as the vehicle was the “mere situs” of the injury.
In general, there is lots of law that addresses the question whether, for purposes of auto coverage, an injury arises out of the operation, maintenance, or use of a motor vehicle or the vehicle was the mere situs of the injury. Although no such cases existed in New Mexico specifically involving a dog bite, dog bites cases from around the country, involving this issue, abound.
After reviewing several cases nationally that have addressed whether a dog bite arises out of the use of a vehicle, the court held that, under the facts before it, it did. Most interestingly, the court was persuaded by the Bells’ expert, a veterinarian with 38 years experience, including specifically focusing on animal behavior for the last twelve. The vet testified that “Jeb developed a strong attachment to Ms. LaBarre, based upon several factors including the fact that Ms. LaBarre was the only human in the household and that Jeb was the only animal in the household. Dr. Nichol further stated that as Sophia was unfamiliar to Jeb, Jeb was likely startled by Sophia’s sudden appearance at the car door and by her attempts to hug him. This is confirmed by Ms. LaBarre’s testimony about Jeb’s reaction to Sophia. Dr. Nichol testified that due to the fact that Jeb was inside a vehicle, he was trapped and had no way to escape what Jeb perceived to be a potential threat.”
Based on this testimony – and other factors, such as the bite being facilitated by the height of the vehicle – the court concluded that the vehicle was a contributing factor to the injury and not just the mere situs: “Finally, and most importantly, the testimony of Dr. Nichols and Ms. LaBarre herself demonstrate that the bite occurred because of the unique setting of the car. Contrary to Plaintiff’s assertion, the fact that Jeb was specifically territorial over the vehicle is relevant; it transforms the vehicle from the mere situs of the injury into a contributing factor to the bite. Jeb felt threatened because he was in a confined space, the vehicle. Further, being in a confined space not only made him feel threatened but also made him territorial over the vehicle. Therefore, it was something about the characteristics of the vehicle itself that facilitated the bite, making the vehicle an active accessory to the bite. This was more than simply transporting Jeb in the vehicle.”
I’m far from an authority on UM/UIM issues. But I am familiar with this “use of the auto” versus “mere situs” issue as it comes up just the same in CGL cases involving the applicability of the “auto” exclusion. The Bells’s counsel’s use of the vet expert, to overcome the “mere situs” defense, was doggone good lawyering.
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy Maniloff is Counsel at White and Williams, LLP in Philadelphia. He previously served as a firm Partner for seven years and transitioned to a Counsel position to pursue certain writing projects including Coverage Opinions . Nonetheless he still maintains a full-time practice at the firm. Randy concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies, including commercial general liability and various professional liability policies, such as public official’s, law enforcement, educator’s, media, computer technology, architects and engineers, lawyers, real estate agents, community associations, environmental contractors, Indian tribes and several others. Randy has significant experience in coverage for environmental damage and toxic torts, liquor liability and construction defect, including additional insured and contractual indemnity issues. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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