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Vol. 9 - Issue 4
May 31, 2020


I’m Not Lion: Coverage Case Involving The Odor Of 100 Cats


I have never done a study of this, but, from my Meeem-ory (all alone in the moonlight), there are a lot more coverage cases involving dogs than cats.  Well score one for the felines in Phillips v. State Farm, No. A163831 (Ore. Ct. App. Feb. 26, 2020).  While the facts of Phillips are unpleasant, the argument for coverage is interesting.  Oh those cunning cats.

At issue was coverage for a landlord, under a property policy, for damage done by a tenant who had approximately 100 cats.  [But the Dalmatians still win!]

Unfurtunately for the insured [sorry, but you knew something groan-worthy was coming; but I’ll limit it to one], the State Farm policy contained a domestic animal exclusion.  Of import, the exclusion applied to losses caused “directly and immediately” by domestic animals.  

Putting aside the trial court decision, the Oregon appeals court held that the exclusion applied purrrfectly [ok, two]. 

So how could a domestic animal exclusion not apply to waste caused by 100 cats, you ask.  The policyholder argued that the damages were not caused by the cat waste, but, rather, the passage of time and negligence of the insured.  In other words, the damage and odor was caused by the tenant’s actions and inactions.

To decide the issue, the court was required to determine the meaning of the words “directly” and “immediately.”  After resort to the dictionary – defined, respectively, as without intervening space or time and direct connection and relation – the court held that the exclusion applied:

“Damage caused by cats defecating and urinating on the insured property is direct and immediate. The fact that the damage caused by the cats may have been exacerbated by the passage of time or the failure of tenants (or the insured landlord) to clean up the cat waste does not mean that the damage was not ‘directly and immediately’ caused by the cats, and it certainly does not render the policy language ambiguous.  We conclude that the elimination of feces and urine by domestic animals onto the insured's rental property is damage that is excluded from coverage under the policy in this case. The passage of time and the failure to take reasonable steps to intervene when damage occurs may well make matters worse, but the cats caused the damage.”

Clearly a catastrophic decision for the insured.

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