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Vol. 9 - Issue 6
September 23, 2020


Dog Gets “One Free Bite” – For Coverage


It is one of the oldest of old adages – every dog gets “one free bite.”  Translation – it is only after a dog has bitten someone, that the owner knows that its pooch has dangerous propensities, to justify liability for damages for any future bites.

But in some states, the “one free bite” rule is no more, having been replaced by statutes that impose strict liability on dog owners for injuries that their canines cause -- even for their first bite.  I guess dogs needed stronger lobbyists in state capitals.  Jeez, what are they going to take away next from our beloved family pets?  Cats only have seven lives.

The “one free bite” rule, while a liability concept, recently made its way into a coverage case.  Not to mention being at the heart of the decision.  At issue in Nationwide Property & Casualty Ins. Co. v. Finn, No. N18C-11-052 (Super. Ct. Del. Aug. 6, 2020) was coverage for Holly and Francis Finn, under the liability section of a Nationwide homeowner’s policy, for injuries caused when their dog, Gypsi, bit their three year old next-door neighbor, Max.  The incident took place on June 5, 2019.

While the case is about coverage for Max’s injuries that took place in June, the dog bite that really mattered in the case took place three weeks earlier.  On May 19, the Finns adopted Gypsi from an SCPA.  On that day, Mrs. Finn took Gypsi to visit their next door neighbor so that Gypsi could get acquainted with the neighbor’s dog, Ernie.  While the dogs were playing, Gypsi attempted to mount Ernie from behind.  Ernie, unpleased with the situation, turned and bit Gypsi’s behind.  Gypsi responded by biting Ernie.  The incident was reported and investigated by the State of Delaware Animal Welfare Department.

After Max’s parents sued the Finns for the later bite to Max, the Finns demanded defense and indemnity from Nationwide, their homeowner’s insurer.  Nationwide denied coverage based on the following exclusion:

Coverage E — Personal Liability and Coverage F — Medical payments to others do not apply to bodily injury or property damage: (o) caused by any of the following animals owned by or in the care, custody, or control of an insured: (5) Any dog with a prior history of: a) Causing bodily injury to a person; or b) Attacking or biting another animal; Established through insurance claims records, or through the records of local public safety, law enforcement or other similar regulatory agency.

As Nationwide saw it, no coverage was owed for the bite to Max since Gypsi had “a history of . . . [a]ttacking or biting another animal,” specifically, Ernie, during their ill-fated meet and greet three weeks earlier.    
The Smiths, Max’s parents, saw the issue differently.  They argued that the term “history” requires more than one prior bite, not to mention that Gypsi’s bite of Ernie here was defensive,

But the court, constrained by the “clear and unambiguous” policy language, disagreed:  “While an argument can be made that Gypsi did not attack Ernie,” the court observed, “there is no doubt that Gypsi bit Ernie. While Gypsi’s bite may have been defensive, the policy exclusion only requires that Gypsi bit Ernie, regardless of the reason.”

The court, analyzing the word “a,” also rejected the argument that the term “a history” implies more than one prior event.

Lastly, the court concluded that the “bite exclusion” did not contravene public policy.  To the contrary, the exclusion was more generous than public policy.  Delaware has a statute that imposes strict liability on a dog owner for injury caused by a bite.  In other words, Delaware does not offer dogs one free bite.  But the court observed that the exclusion does: “The Finns’ insurance policy actually provides coverage for the first bite.  However, it does not provide coverage for a second one.”


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