I love dog bite cases – coverage and otherwise.  I’ve discussed many in CO over the years and have written several articles about them.  I even did an article in June 2000, for The Wall Street Journal, on the occasion of the 200th anniversary of the first-ever dog bite judicial decision. 

[I never told my wife about piece.  Is she knew that I had time to research an article like that, I’d never again be able to claim that I didn’t have time to clean out the attic.]

In Rolinc v. Williams, No. 111518 (Ohio Ct. App. Feb. 2, 2023), an Ohio appeals court addressed the availability of coverage, under a homeowner’s policy, for injuries sustained by Todd Rolinc on account of an August 2020 attack by Mallory, a pit bull mix, and Beastro, a bulldog.         

Now, go back two months.  In June 2020, the duo of Mallory and Beastro attacked Tootsie, a Welsh terrier owned by Debra Shufran. Shufran, believing that the attack on Tootsie was an isolated incident, did not file a police report.  But now, after witnessing Mallory and Beastro’s attack on Rolinc, Shufran filed a police report concerning the earlier attack on Tootsie.

Rolinc filed suit against Nicoy Williams, Mallory and Beastro’s mom.  She sought coverage under a homeowner’s policy issued by Nationwide.  Coverage litigation arose over the potential applicability of a dog bite exclusion, which precluded coverage for “‘bodily injury arising out of...(e) Any dog with a prior history of attacking or biting * * * person(s) or animal(s), as established through insurance claim records, or through records of local public safety, law enforcement or other similar regulatory agency.” (emphasis added).

Here's the interesting part.  Nationwide argued that the exclusion applied.  After all, prior to the attack on Rolinc, Mallory and Beastro had attacked Tootsie -- and there was a police report of the incident.

But the trial court disagreed.  And so did the appeals court.  While Mallory and Beastro’s attack on Tootsie took place before their attack on Rolinc, and there was a police report on the Tootsie attack, there was no police report of the attack on Tootsie at the time of the attack on Rolinc:

“On August 2, 2020, which is the date Beastro attacked and bit Rolinc , Beastro did not have an ‘established’ prior history of attacking or biting a person or animal.  In fact, the August 5, 2022 police report of the incident with Rolinc is the first ‘established’ history of Beastro attacking or biting a person or animal.  In applying [citation omitted], we find that the August 5, 2022 police report [concerning Tootsie] is irrelevant to a determination of whether Beastro had a prior established history of biting or attacking.”