Dog Bite Excluded

Injury by "Existence" of a Pit Bull Dog Unambiguously Excluded

In July 2020, a young boy was injured when a dog attacked him in an apartment complex owned by Missy J, LLC.  In Missy J, LLC v. Westchester Surplus Lines Insurance Company, No. 21-cv-848-SE, Opinion No. 2022 DNH 157, United States District Court, D. New Hampshire (December 19, 2022) the insurer refused to defend or indemnify Missy J because of an “Animals Exclusion.”

After the boy's mother sued Missy J to recover for his injuries, Missy J sought coverage from its insurer, Westchester Surplus Lines Insurance Company, under its commercial general liability policy. Westchester denied coverage and refused to defend Missy J.

Missy J sued in New Hampshire state court against Westchester seeking a ruling that the parties' commercial liability policy provided coverage for the lawsuit against Missy J and the boy's injuries. Westchester removed the case to the USDC.

BACKGROUND

Missy J owns an apartment complex in Manchester, New Hampshire. Westchester insured Missy J under a commercial general liability insurance policy. The policy also lists certain injuries and damages for which it does not provide coverage. The policy includes an “Animals Exclusion” provision as follows: “This insurance does not apply to 'bodily injury', 'property damage' or 'personal and advertising injury' arising out of or resulting from the ownership, existence, maintenance, presence, training or use of animals on an insured's premises or in an insured's operations, including a. dogs; ... ” (emphasis added)

On July 10, 2020, a pitbull attacked a young boy who was visiting at one of the apartments in the complex. The boy's mother, Briona Reed-Sounia, sued Missy J, Westchester denied coverage on the basis of the policy's animal exclusion provision.

DISCUSSION

Missy J sought a declaratory judgment that Westchester wrongfully denied coverage for the dog attack at the complex. In support, Missy J contended that the animal exclusion provision in the policy was ambiguous and can reasonably be interpreted to apply only to an animal Missy J or its agents owned, controlled, or used in its operations (such as a guard dog). Missy J argued that because the exclusion provision is ambiguous, the court must construe it against the insurer and in favor of coverage.

Westchester disagreed and contends that the animal exclusion provision is clear and unambiguous and precludes coverage for the boy's injuries because they arose from the existence or presence of a dog on Missy J's premises.

Missy J and Westchester agree that Missy J's liability for the dog attack would have been covered under the policy but for the animal exclusion provision.

That plain language encompasses the factual circumstances for which Missy J seeks coverage in this case: a visitor's bodily injury that arose out of the existence or presence of a dog on Missy J's premises, the complex.

The exclusion explicitly and unambiguously excludes bodily injury that arises out of an animal's presence on Missy J's premises, which specifically includes the complex. That language covers the exact factual circumstances for which Missy J seeks coverage here: liability it incurred because of the boy's bodily injury that arose out of a dog's presence at the complex.

The animal exclusion provision is written in clear and unambiguous language and excludes from the policy's coverage the incident at issue in this case. Parties cannot create ambiguity from whole cloth where none exists, because provisions are not ambiguous merely because the parties interpret them differently. Therefore, Westchester has carried its burden to show the absence of coverage under the policy and is entitled to summary judgment.

Westchester's motion for summary judgment was granted and Missy J's motion for summary judgment was denied.

ZALMA OPINION

Just because Westchester and Missy J disagreed about the meaning of a clear and unambiguous exclusion does not make the term unambiguous. Since the dog existed on the premises of the insured and was the cause of the child's injuries, the exclusion applied. That it would also apply if the dog was placed there for Missy J as a guard dog does not eliminate the exclusion for any dog that existed on the premises.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.

Go to substack at substack.com/refer/barryzalma Consider subscribing to my publications at substack at substack.com/refer/barryzalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com

Write to Mr. Zalma at zalma@zalma.com; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.