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Vol. 8 - Issue 7
August 21, 2019


Dog Doody To Defend: Pooch Day Care Bites Landlord


Ok, Cam-Sam Real Estate Holding, LLC v. Merchants Mutual Insurance Co., No. 18-433 (D.N.H. July 8, 2019) is not a duty to defend case.  But I just couldn’t help myself.  Shocking.

Cam-Sam is a property coverage case.  Property cases rarely get discussed in CO.  But, when a property coverage case involves all manner of things gone awry at a doggie day care, I’ll write about a property case. 

Cam-Sam Real Estate Holding rented a commercial building, in Hooksett, New Hampshire, to D La Pooch Hotel, LLC for its use as a pet day care and grooming business.  The deal went to the dogs for Cam-Sam. 

Cam-Sam initiated eviction proceedings against D La Pooch and discovered that the space “was severely contaminated by pet urine and feces, and substantial damage had been caused by spillage/seepage from overflowing toilets. Substantial repairs were required including: removal of all building materials from Unit 1 down to the shell; remediation of odor, mold, and bacteria in the air and duct systems; and shot blasting the concrete floor to remove embedded odors.”

Did you hear that - shot blasting the concrete floor to remove embedded odors.  I have no idea what that is.  But, obviously, the odor was pretty intense, and required much more than a few squirts of Fabreze.

Cam-Sam sought coverage for the damage from Merchants Mutual under a property policy.  Merchants Mutual told Cam-Sam to heel.  Among other reasons, Merchants asserted that no coverage was owed on account of the old “Animal Waste exclusion,” which provided that no coverage was owed for loss or damage resulting from or caused by “nesting or infestation, or discharge or release of waste products or secretions by insects, birds, rodents or other animals.”

As Merchants saw it, dog urine and feces “unquestionably” fall within the definition of “waste products or secretions by . . . other animals,” as dogs are animals and urine and feces are animal waste products.

Cam-Sam barked back, taking the position that Merchants reads the Policy’s exclusion too broadly and inconsistent with the Policy’s purpose: “The Policy is intended, Cam-Sam argues, to provide coverage for damage done to property that is not within the landlord’s control, including, without limitation, damage done by tenants.  Consistent with that purpose, Cam-Sam contends, the Animal Waste exclusion applies only when damages are caused by pest or wildlife infestations, not domestic animals, and not animal related damage brought about by human negligence and failure to manage animals under human control and care.  Here, Cam-Sam says, the damage was plainly not caused by pests infesting the property, rodents leaving droppings, or insects destroying building materials, all of which would fall within the exclusion.  Instead, the damage was caused by D La Pooch’s employees’ negligent operation of the business: ‘Dog feces merely happened to be involved in those business operations.’  At the least, Cam-Sam contends, the Animal Waste exclusion is ambiguous, and ought to be construed in the insured’s favor to provide coverage.”

All things considered, given that Cam-Sam had a steep climb here, it did the best it could with that argument.  

The court did not bite, noting that “the Policy language provides, categorically, that damages resulting from animal waste and secretions are excluded from coverage. Dogs are animals. Given the Policy’s broadly worded exclusion, Cam-Sam could not have reasonably understood the Policy to insure against damages to the premises resulting from dog urine and feces.  Cam-Sam’s argument that the animal waste was not the direct and immediate cause of the damages (but rather the damage was caused by negligent D La Pooch employees) does not alter the analysis.  The Policy unambiguously provides that Merchants ‘will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.’  So, to the extent the damage alleged by Cam-Sam was caused, even indirectly, by dog ‘discharge or release of waste products or secretions,’ that damage is not covered by the Policy.”

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