I love dogs. I love coverage cases. So do the math -- I love dog bite coverage cases. On one hand, I’m glad that there are so many of them. On the other hand, a lot of dog bite coverage cases can mean only one thing -- there are a lot of dog bites. And that’s not a good thing. So it’s a real pickle. One thing about all of these dog bite coverage cases -- most are not from state supreme courts. Suffice to simply say that few of the coverage cases in the dog bite genre are from state supreme courts.By now you know exactly where this is going – a state supreme court just issued a decision in a dog bite coverage case. While the case does not address any real coverage issues, it does offer something worthwhile – a demonstration of just how broad the duty to defend can be.
In Howe v. MMG Insurance Company, No. YOR-13-529 (Me. June 17, 2014), [enhanced version available to lexis.com subscribers], the Supreme Judicial Court of Maine addressed coverage for Janet Howe, under the liability section of a homeowner’s policy, for a suit filed against her by her Condominium Association. Specifically, the Condo Association alleged that Howe’s dog was a nuisance -- being vicious, threatening and having bitten people. Howe’s insurer, MMG Insurance Company, declined coverage on the basis that Howe’s dog was a nuisance, not that it caused any “bodily injury” or “property damage,” and, therefore, the complaint sought only uncovered equitable relief. Coverage litigation ensured. The trial court sided with MMG. Howe sniffed her way to Maine’s highest court, which reversed.
The Supreme Judicial Court first set out the test for determining a duty to defend – which it noted is broad: it “is triggered if the complaint tendered contains any allegations that, if proved, could fall within the coverage afforded by the policy.... [I]f the complaint—read in conjunction with the policy—reveals a mere potential that the facts may come within the coverage, then the duty to defend exists. Furthermore, where the events giving rise to the complaint may be shown at trial to fall within the policy’s coverage, an insurer must provide the policyholder with a defense.”
Looking at the nuisance claim, in general the court concluded that, because it “might be shown at trial” that the dog had bitten, scratched and otherwise damaged Association property, a claim for property damage had been established. Further, while injunctive relief was requested, so too, the court noted, were damages, interest, penalties, costs and attorney’s fees. Turning to the negligence claim, the court held that “[t]he allegation that the dog has ‘bitten people’—possibly fellow unit owners, because the statutory count (Count V) alleges that ‘unit owners have been assaulted’ by the dog—outlines a claim of bodily injury for which Howe might be answerable to the Association, depending on the facts developed as the case proceeds.”
There isn’t a whole lot to say about this case. And while it does demonstrate the breadth of the duty to defend, that’s a dog bites man story, if there ever was one, for anyone reading this. But the case involved a pooch, coverage and a supreme court. Spaniel just had to indulge me. Thanks.
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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