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Vol. 7, Iss. 1
January 31, 2018

Court Holds “A Dog Has No Liability In Tort.” Really.
This from a recent South Carolina District Court addressing coverage for a dog bite claim: “In favor of coverage, Defendant argues, Lighthouse’s reliance on the Exclusion in seeking summary judgment is misguided because Defendant/Plaintiff J.N.’s injuries were not caused solely by Ms. Roger[s]’s dog but also by Ms. Roger[s]’s failure to maintain control over the dog. The Exclusion does not exclude coverage for losses caused by the negligence of Ms. Rogers. Instead, the Exclusion applies only to losses ‘caused by any dog[.]’ That argument is illogical. A dog has no liability in tort, so a dog bite exclusion from liability coverage necessarily refers to the conduct of the person responsible for the dog. Ms. Rogers had a duty to control her dog and for that reason, she is potentially liable for damages caused by her dog. Defendant argues as if a policy exclusion for dog bites simply means that the dog itself is not an insured party. That is not a reasonable interpretation of the exclusion.” Lighthouse Property Insurance Corp. v. Rogers, No. 17-1553 (D.S.C. Jan. 19, 2018).

Insured Cannot Drink Himself Into Coverage
When an insurer argues that no coverage is owed, because the insured intended to cause harm (i.e., no “occurrence” or “expected or intended” exclusion), insureds sometimes counter that they were intoxicated at the time that they caused injury. Thus, so their argument goes, they could not form the intent to injure someone. Therefore coverage should be afforded. While insureds have had some success raising this argument – as bold as it seems – it also has obvious challenges. This was pointed out by the court in Kogler v. State Farm General Insurance Company, No. 16-534 (N.D. Cal. Jan. 2, 2018). While noting that courts nationally go both ways on the question, the court held that “as our circuit has determined, California follows the principle that if an insured can form an intent to act, the intent to harm is irrebuttably presumed and evidence of a mental state is irrelevant. In that sense, other state decisions (citation omitted) are more consistent with the way California approaches questions of assaultive conduct and intent. While the Court shares the Hanover court’s concern [Mass. 1992] for victims and the desire to promote the ‘public interest that the victim be compensated,’ this cannot trump the policy language itself and the law in this jurisdiction. The Court is also mindful of the countervailing public policy that the decision to voluntarily intoxicate oneself -- with illegal drugs, no less -- should not be abetted or rewarded by the comfort that one’s ensuing savagery will be paid for by the insurance company. In addition, allowing voluntary intoxication to void an agreed-upon exclusion for intentional harm would unduly disrupt settled contract expectations.”


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