Home Page The Publication The Editor Contact Information Insurance Key issues Book Subscribe
Vol. 8 - Issue 8
September 25, 2019

The ROR Argument You Hope You Never Have To Make
At issue in ACCC Insurance Company of Georgia v. Walker, No. A19A0804 (Ga. Ct. App. Sept. 19, 2019) was whether the insurer, ACCC, which had undertaken its insured’s defense, did so under a reservation of rights that was timely, unambiguous and fairly informed the insured of its specific basis for its reservations about coverage.  Let’s hope that if you have this task, as an insurer or its counsel, you have more to work with than this: “ACCC argues that it orally informed Ermes Medrano of its reservation of rights in a voice mail message left on his telephone on April 5, 2017 — 19 days before it entered a defense on the Medranos’ behalf.”

Policyholder Counsel As Clever As Magical Mr. Mistoffelees!
Riddle: What does an insurer say when its win in a coverage case, about property damage caused by cats, is reversed on appeal?  Answer: I remember the time I knew what happiness was.  This is what happened to the insurer in Goldberger v. State Farm Fire & Cas. Co., No. 1 CA-CV 18-0112 (Ariz. Ct. App. Aug. 13, 2019). 

The Goldbergers, owners of a rental property, sought coverage from State Farm for damage to their property caused by feral cats.  The trial court held that no coverage was owed on the basis of the exclusion for losses caused by domestic animals.
The policyholders convinced the Arizona appeals court to reverse (good news, at least for the moment).  Following a thorough analysis, the court held that “the term ‘domestic animals’ as used in the Policy is ultimately not ambiguous. Instead, the term encompasses specific animals that are subject to the care, custody, and control of a person.”

The court explained: “The Goldbergers’ complaint alleges the cats that damaged their dwelling were ‘feral’ and were ‘allowed to access the property by their tenant.’  On this alone, we cannot say that the tenant, or anyone else, was keeping the feral cats in such a manner that the Exclusion precludes coverage.  Resolving all reasonable inferences in the Goldbergers’ favor, we must presume that the cats were feral, meaning they had no owner or keeper and were living in nature. See, e.g., Feral, The American Heritage Dictionary (5th ed. 2011) (‘Existing in a wild or untamed state.’). And the allegation that the tenant allowed the cats to access the property does not show the tenant exercised sufficient care, custody, and control over the cats so as to render them ‘domestic animals.’  Therefore, because the facts alleged in the complaint and the reasonable inferences drawn therefrom are within the Policy’s coverage, the superior court erred in dismissing the complaint.  During discovery, of course, additional facts may reveal that the tenant was actually keeping or maintaining these cats like the tenant in Bjugan. We need not explore all the possible purposes for which a domestic animal may be kept.  Suffice it to say that whether a particular animal falls within the Exclusion would normally be a factual question, depending on the purpose for which the animal is kept and the amount of care, custody, or control a person exercises over the animal.  Those or other facts may ultimately bring this case outside the Policy’s coverage, but they await factual development.”


Website by Balderrama Design Copyright Randy Maniloff All Rights Reserved