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Vol. 4, Iss. 4
April 8, 2015


Man Sues Dog:
Court Finds That Insurer Has Duty To Defend German Shorthaired Pointer


Frequent readers of Coverage Opinions know that I have a soft spot for coverage cases involving dogs. Sadly, they often involve dog bites. There’s just not much litigation over dogs licking faces. In general, the story is similar. Dog bits man. Man sues dog’s owner. Dog’s owner sues his insurance company.

The recent decision in Morrison v. Sioux Falls Mutual, No. 2014-2469 (So. Central Dist. Ct., N.D. Mar. 23, 2015) takes a different route. A really different route. Dog hurts man. Man sues dog. Yes, you read that right -- Man sues dog. Dog’s owners sue their insurance company. Court holds that insurer had a duty to defend -- the dog.

Believe me. I know. It sounds like one of those cases that people like to point to as evidence that the legal system is broken. The ones that tort-reformers discuss and then immediately need a paper bag to breath into. But as crazy as it sounds, the court’s decision actually followed well-established coverage law.

Morrison involves coverage for an unfortunate canine incident. Tom Robertson purchased some furniture from Rick and Sharon Morrison that he found on Craig’s List. Robertson’s car wasn’t big enough to enable him to transport all of the furniture in one trip. And since he lived about 75 miles away from the Morrisons’ home in Bismark, North Dakota, Robertson completed the purchase by making trips on three consecutive Saturdays.

The Morrisons had a dog – a German Shorthaired Pointer named Felix. Robertson was a life-long dog lover but did not own one on account of his wife’s allergy to pet dander. On all three trips to the Morrison’s house, once the furniture was loaded into Robertson’s car, Robertson spent time talking to the Morrisons and playing with Felix. By the third visit, Robertson and the Morrisons had become friendly and Robertson couldn’t get enough of Felix. At one point Felix walked into the room with his leash in his mouth -- indicating that he wanted to go for a walk. Rick Morrison suggested that Robertson take Felix on his walk. Robertson agreed without hesitation. Morrison showed Robertson the route that Felix like to take and off they went.

Robertson and Felix got about a block from the house when Felix spotted a squirrel. He bolted. Hard. Robertson had no warning and the force of the 60 pound dog pulled him down. Robertson suffered bumps and bruises and a badly sprained wrist.

Robertson sued the Morrisons in small claims court. Perhaps because his injuries were not too serious, he acted pro se. Robertson alleged that the Morrisons failed to warn him that Felix, being a German Shorthaired Pointer, was a hunter. Thus, having owned Felix for two years, the Morrisons surely knew that if Robertson didn’t hold the leash tightly, with minimal slack, he would be pulled down if Felix saw a squirrel or rabbit and went after it. Robertson named as defendants Rick and Sharon Morrison. Then, in a very odd move, Robertson named “Felix Morrison” as a defendant.

The Morrisons sent the complaint to Sioux Falls Mutual, their homeowner’s insurer. The insurer denied coverage, including a defense, on the basis that Robertson’s injuries were not caused by an “occurrence,” defined as an accident. The insurer relied on the statement in the complaint that, having owned Felix for two years, the Morrisons knew that if Robertson didn’t hold the leash tightly, he would be injured if Felix’s hunting instincts took over. The disclaimer letter made no mention of potential coverage for Felix.

The Morrisons and Robertson settled the matter for $1,500. The Morrisons then filed suit against Sioux Falls Mutual. A small amount, but the Morrisons’ counsel included a count for bad faith.

The court held that coverage was not owed to the Morrisons for a defense nor its $1,500 settlement. The analysis was brief. The court essentially adopted Sioux Falls’s argument that, because the Morrisons owned Felix for two years, they must have known that if Robertson didn’t hold the leash tightly, he would be injured if Felix saw a squirrel.

But that was not the end of the case. The court observed that Sioux Falls’s disclaimer letter made no mention of any potential coverage owed to defendant “Felix Morrison.” The court acknowledged that it was an absurdity that a dog could be named as a defendant in a law suit – and then have rights to a defense under its owner’s insurance policy. But the court focused on the black letter insurance rule that an insurer is obligated to defend complaints even if they are “groundless, false or fraudulent.” As the court saw it: “It that rule is to have any meaning, then an insurer is obligated to defend a dog that is named in a lawsuit.”

Of course, the obligation to defend Felix only existed if Felix were an “insured” under his owner’s homeowner’s policy. And the court had little troubling concluding that he was. The policy’s definition of insured was: “The named insured and, if residents of your household: your relatives; and any person under the age of 21 who is in the care of the Named Insured.” The court cited to the Supreme Court of Texas’s decision in Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013), where the Texas high court observed that: “America is home to 308 million humans and 377 million pets. In fact, American pets now outnumber American children by more than four to one. In a nation where roughly 62% of households own a pet—with about 78 million dogs and 86 million cats (and 160 million fish)—it is unsurprising that many animal owners view their pets not as mere personal property but as full-fledged family members, and treat them as such.” Id. at 187 (citations and internal quotes omitted). “A study found that 70% of pet owners thought of their pets as family members.” Id. (citation omitted).

Thus, having concluded that Felix was a resident “relative” of the named insured, he qualified as an “insured” under the Sioux Falls policy. And since there was no allegation in the Robertson complaint that Felix, unlike his owners, breached any duty to warn, the court held that a defense was owed to Felix. The court also observed that “insured” included a person under the age of 21 who is in the care of the Named Insured, but the policy did not require a resident “relative” to be a person. Thus, at a minimum, the policy was ambiguous and was required to be interpreted in favor of coverage.

Lastly, the court took issue with the fact that Sioux Falls’s disclaimer letter made no mention of potential coverage for Felix. The court cited to a North Dakota insurance reg. that required Sioux Falls to respond to claims of all insureds it in a timely manner. Having failed to do so for Felix, the court refused to dismiss the bad faith count filed against Sioux Falls.

As ridiculous as the opinion is, it is hard to say that it is not supported by the policy language and case law. A ruff decision for Sioux Falls Mutual.

That’s my time. I’m Randy Spencer. Randy.Spencer@coverageopinions.info

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