Lauren KellyVillanova School of Law 2LJ.D. Candidate 2016
“Of my six dog bites in those 10 years the most memorable was of a miniature French poodle,” Herb, a postal worker, recounts on the online news forum PostalMag.com. The site allows postal workers to submit stories of dog bites they experienced when delivering mail. While the love-hate relationship between dogs and mailmen is a story that has long-existed in lore, it was no doubt very real to Herb, as he sat bleeding after being bit, a second time, by a miniature French poodle. But he was able to find a solution to deal with the dogs on his route and enjoyed his remaining sixteen years bite-free. His answer: “Seems all the dogs on my route liked Herbie the mailman’s dog biscuits.”
Stories like Herb’s demonstrate the less-than-friendly relationship that can sometimes exist between dogs and mailmen. It’s not just letter carriers, however, finding that a dog’s bark isn’t really always worse than its bite. In general, dog bites do not discriminate, as clearly reflected by a report issued by the Insurance Information Institute earlier this summer. Dog bites accounted for over $483 million paid in 2013 for homeowner’s liability claims. That’s one-third of all dollars paid!
But letter carriers have it particularly rough. Nearly 5,600 of them were attacked by dogs in 2013. The United States Postal Service has tried to bring awareness to the issue of dog attacks on postal carriers by releasing its annual “Top Dog Attack City Rankings” during National Dog Bite Prevention Week each May. The list contains the 30 cities with the most dog attacks on letter carriers. This past year, Houston took the top spot, followed by Los Angeles and Cleveland. That’s a lot of suffering to get you the latest J. Crew catalog.
Even with a decline in injury rates over the last decade, USPS reports that employees are still injured at a rate disproportionate to all federal employees. According to an Insurance Journal article, referencing a Congressional Research Service report, USPS employees made up 22 percent of the federal workforce, yet accounted for 39 percent of injuries, illnesses, and fatalities in 2012. Dog bites were the most frequent injury reported for mail routes conducted by foot. The article goes on to note that, in 2010, under the Federal Employees’ Compensation Act program, administered by the Office of Workers’ Compensation Program, a staggering 43 percent of beneficiaries were USPS employees.
But it’s not just mailmen feeling the bite of these incidents. According to the Rapid City Journal, in the fall of 2013, door-to-door mail delivery was suspended for sixteen residents in a South Dakota neighborhood after a letter carrier was attacked by one of the resident’s dogs. Mail needed to be picked up at the local post office until USPS was able to establish a central delivery unit on the block.
In many instances, owners are found liable for the injuries their dogs caused to postal workers. For example, in Thirlwall v. Galanter (Civil Court, City of N.Y., 1970), [enhanced version available to lexis.com subscribers], a postal worker was bitten after he thrust his mailbag at a dog. He was fearful of the dog and used his bag as a defensive shield. This ultimately caused the dog to bite him. Even though the dog had not bitten before, its actions had made a previous mail carrier so apprehensive about the dog’s propensity to bite, that he refused to deliver mail to the house. The post office had sent a letter to the homeowners citing the dog’s menacing behavior as the reason mail delivery was being temporarily withheld. The New York court found the owners liable, as they should have foreseen that such an incident was likely if a postal worker came into contact with their dog.
As for the age old adage that every dog gets one free bite, many owners are finding that a dog’s first bite is anything but free. Some states impose a strict liability standard in dog bite cases involving a postal worker who did not provoke the dog. An Indiana statute specifically imposes strict liability on pet owners when a postal worker is bitten in an unprovoked attack.
For example, in Cook v. Whitsell-Sherman (Indiana), [enhanced version available to lexis.com subscribers], a letter carrier was bitten by a 100-pound rottweiler after it broke lose from an eight-year-old girl holding its leash. The Supreme Court of Indiana, looking to the strict liability standard, found the owner liable for the postal worker’s injuries even though the dog was in a friend’s care when the attack took place.
Despite the fact that dog bite incidents make up a significant portion of insurance claim payouts, there is also the possibility that a homeowner’s policy will not provide coverage. In Villa v. Pacific Specialty Insurance Company (Cal. Court of Appeal 2010), [enhanced version available to lexis.com subscribers], a mail carrier was attacked and injured by a pit bull terrier when delivering mail. The court found that the homeowner’s insurance policy did not provide coverage because the exclusion for liability caused by an animal applied.
Some homeowners will also find that their insurance will not cover so-called “blacklisted breeds.” A 2002 New York Times story noted that insurers have been denying coverage for certain breeds since the mid-1990s. Some examples of dogs that made the list are pit bulls, rottweilers, dobermans, huskies and wolf-hybrids. Each insurer, however, is able to come up with its own criteria and “blacklist.”
A Psychology Today article from this year, examining the canine-human relationship, noted that at least two states, Michigan and Pennsylvania -- obviously with lots of dog lovers in their legislatures -- have passed laws that prohibit insurers from discriminating based on breed. The article went on to note that several states have pending legislation that would prohibit similar insurance breed discrimination. These laws would force insurers to deny coverage only based on a specific dog and its actions, not just its breed.
This coverage gap has spurred the creation of a new breed of insurance coverage. The Federation of Insured Dog Owners (FIDO) seeks to provide pet owners with coverage for as little as $75 annually per dog. On the company’s website, it states that the dog’s behavior, not its breed, is what is examined to determine coverage. The company seeks to promote responsible pet ownership and provide coverage for a wider variety of dogs.
Despite companies like FIDO, and some states seeking to uphold coverage, dog bite incidents are sure to remain one of the major forces driving homeowner’s insurance policy claims. Likewise, no matter how much e-mail takes over, and even if USPS cuts Saturday delivery, the on-going cat and mouse game between mailman and dog will continue – unless Herbie can make a lot of biscuits. Dogs have long been cited as man’s best friend. But for the mailman, maybe not so much. As USPS’s 2014 bulletin for National Dog Bite Prevention Week puts it, “Don’t Be Fooled: Man’s best friend…can have bad days too.
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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