So many people embraced work from home during the pandemic and afterwards.  But surely few did so as such as Brooks Martin, a systems analysis for a company that provides back-end services to internet travel sites.  Martin was completely enamored with work from home and jumped at the chance to do it full-time, post-Covid, when the offer was made.  His dream had always been for his cat, Rochester, to walk across his keyboard as he worked.

Martin lived alone in a two-bedroom townhouse in Albuquerque, New Mexico and converted the extra bedroom to a home office.  He organized it exactly as his prior office at his employer’s headquarters.  But he didn’t stop there.  To make his work from home experience even more realistic, he installed a hand dryer in his bathroom as well as motion-censored faucets.  But even that wasn’t enough.  Martin installed a lock on his home office door that used a key card entry system.  He wore the key card in a lanyard around his neck.

About three months after installing the key card system, it failed to operate.  Martin was locked out of his home office.  But, more concerning to Martin, Rochester was locked in.  Rochester had no food, litter box nor balls of yarn.  Martin panicked.  He called Be Free of Keys, LLC, the company that made the entry system.  However, it was a Sunday and its offices were closed.  And there was no emergency phone number listed on its website.

Seeing no other option, Martin borrowed a circular saw from his neighbor and cut out an opening in the bottom of the door for Rochester to exit.  While Rochester was now free, Martin was convinced that his beloved feline had been traumatized by the noise of the circular saw.  Sure enough, from that day forward, Rochester refused to come into the home office.  And if Martin brought him in, the cat immediately fled out.  Martin’s joy, of having Rochester walk across his keyboard as he worked, had been clawed away from him.

Over the next month, Martin slipped into a depression.  It led to various physical symptoms such as chest pains and headaches.  He demanded damages from Be Free of Keys, LLC, but it ignored his letters.  He sought out a lawyer to sue the company, but none were willing to take the case. 

Martin filed a pro se complaint in New Mexico state court, alleging in Brooks Martin v. Be Free of Keys, LLC that Be Free’s negligent manufacture of its keyless entry system caused Martin to sustain various physical ailments as well as the loss of having Rochester walk across his keyboard as he worked in his home office.

Be Free tendered the complaint to its products liability insurer, Keyless Entry Systems Risk Retention Group, LLC, which undertook its defense under a reservation of rights.  The insurer acknowledged that coverage was owed for the bodily injury claims – physical manifestation of emotional injury was bodily injury – but maintained that no coverage was owed for any damages sustained by Martin for the loss of having Rochester walk across his keyboard as he worked.  Keyless Entry Systems RRG explained that these were not damages because or “bodily injury,” “property damage” or “personal and advertising injury.”   
 
At an early status conference, the judge noted that she was a cat lover and signaled that Martin’s claim, for the loss of not having Rochester walk across his keyboard, while certainly unusual, may have been meritorious.

Be Free, concerned by the judge’s signaling, filed a coverage action in New Hampshire state court against its insurer.  The insurer filed a motion to dismiss.  The court denied the motion, explain its rationale in Be Free of Keys, LLC v. Keyless Entry Systems RRG, LLC, No. 2022-3675 (N.H. Super Ct., Hillsborough Cty., March 23, 2023):

“While Rochester is Mr. Martin’s beloved cat, the feline is also, in the eyes of the law, his tangible property.  Further, Rochester serves many uses for his owner, one of which is to provide joy and amusement at the kitty’s sometimes oblivion to his surroundings.  In this case, that means walking along a keyboard at the same time that Mr. Martin is using it for important business.  Examining the allegations in the complaint, this court cannot say that Mr. Martin has not sustained “property damage,” based on the policy’s definition that includes “loss of use of tangible property that has not been physically injured.”  Despite its curiosity, that is not enough to kill Be Free’s claim for coverage under the Keyless Entry Systems RRG policy.”