Dog Chasing Cat Provokes Additional Insured/Vicious Propensities Imbroglio

This post originally appeared on the SGR Blog.

Scenario: Dog chases a cat. Guest gets caught in cable securing the dog. Dog owner and guest are significant others. Accident occurs at their former abode where he (but not she) then resides. Victim asserts claim on homeowners’ policy. Carrier disclaims. And (of course) litigation ensues.

Jo Ann Davis was injured on April 23, 2017 when visiting the house owned and occupied by Timothy Phillips at 11 East Avenue in Cortland. Davis fell after becoming entangled in the cable securing Phillips’s dog (Sam) just as the canine began to chase a cat.

Travelers disclaimed coverage on the basis that Davis was a named insured on the homeowners’ insurance policy. Davis sued Travelers for (1)  a declaratory judgment that she was not a named insured on the policy on the date of the incident and requiring Travelers and Bailey Place Insurance, Inc., the insurance agency through which the homeowners’ policy was obtained, to provide coverage for her claims and (2) damages from both Travelers, Bailey Place and Phillips.

Davis moved for summary judgment on her complaint. And Travels, Bailey Place and Phillips cross-moved for summary judgment dismissing the complaint.

Davis and Phillips were significant others who began a relationship in 2008. Phillips had his primary residence at 11 East Avenue from July 2010 until January 2014. Davis lived at 11 East Avenue with Phillips. In January 2012, Phillips conveyed the property to Davis and, pursuant to an application jointly submitted by Davis and Phillips, a homeowners’ insurance policy was obtained from Travelers through a predecessor of Bailey Place, on which they were both named insureds.

In January 2014, Davis moved to a nearby home that had been owned by her recently-deceased former husband to reside with her teenaged son. In December 2016, Davis reconveyed 11 East Avenue to Phillips, who assumed the outstanding mortgage loan. In connection with that transaction, Phillips requested that Bailey Place issue proof of insurance satisfactory to the lender. Bailey Place thereafter issued an “Insurance Binder” showing that Phillips was a named insured on the Travelers policy covering 11 East Avenue and naming the lender as mortgagee. The binder did not mention Davis, but she was not removed as a named insured from the policy at that time. The policy was renewed each year and continued to show both Davis and Phillips as named insureds. Davis and Phillips also obtained automobile insurance through a joint policy from Travelers for which they received a discount because they also maintained the homeowners’ insurance policy covering 11 East Avenue with Travelers.

Davis knew Sam, a Yellow Labrador Retriever, since Phillips acquired him as a puppy shortly after Davis moved from 11 East Avenue in 2014 and she acknowledged having seen Sam on more than 20 occasions. Sam was described as weighing 95 pounds and being “big, strong, muscular, powerful and energetic.” Sam enjoyed people and enthusiastically greeted visitors to the home.

On April 23, 2017, Davis drove to Phillips’s home to meet him for a bicycle ride. Phillips was in the garage inflating bicycle tires. When Davis left her car, Sam came to greet her. Davis petted Sam and began walking toward the garage. At that moment, Sam began to chase a cat and his cable wrapped around Davis’ ankle. As Sam continued to chase the cat, Davis was knocked down and injured.

The insurance policy expressly excluded coverage for bodily injuries, and medical expenses incurred as a result of bodily injury, to an insured. Davis’ argued that she was not an insured, as a matter of law, because she had no insurable interest in the premises at 11 East Avenue on the date of the incident. The Court disagreed. An insurable interest is any lawful and substantial economic interest in the safety or preservation of property from loss, destruction or pecuniary damage. An insurance policy covering loss or damage to property is enforceable only when issued to a person who has an insurable interest in the insured property. However, the requirement that the insured have an insurable interest is applicable only to first-party casualty insurance and is not applicable to third-party liability insurance.

The reason for the distinction was based on the insurable interest requirement. In order to prevent fraud and crime and to prohibit wagering contracts on property in which the insured possesses no interest, the lack of an insurable interest in the property insured renders the property insurance void and unenforceable. Those concerns are not implicated by third-party liability insurance because payments for a covered loss are made to an injured third-party. Thus, there is no possibility of an insured loss impermissibly enriching an insured. Further, there is a sound rationale for permitting a person who has no economic interest in a property to be added as a named insured on the owner’s policy to insure against the risk of liability to third parties that he or she may be exposed to as an occupant sharing possession of the property with the owner’s permission. And to provide for a defense against such claims. It is presumably for this reason that Travelers allowed domestic partners to be added to homeowners’ policies as named insureds. Accordingly, Travelers was entitled to declaratory judgment enforcing the policy as written and adjudging that the carrier had no obligation to defend or indemnify Phillips in this action.

Turning to whether Phillips had any liability for Davis’ injuries: the long-settled rule is that the owner of a domestic animal, who either knows or should have known of that animal’s vicious propensities, will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities are not narrowly defined, but include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Accordingly, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — but only when such proclivity results in the injury giving rise to the lawsuit. And normal canine behavior, such as chasing other dogs or small animals, does not constitute a vicious propensity.

Owners are not strictly liable for injuries that result from a person being caught in the chain or leash of a dog while engaged in normal canine behavior. Davis was injured when she became entangled in the cable when Sam engaged in the normal canine behavior of chasing a cat. So Phillips was not liable for her injuries as a matter of law. Accordingly, Phillips and Bailey Place were entitled to summary judgment dismissing the complaint.

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