Dog Bites – Claims Magazine
ISSUE
An insured has both a Personal Auto Policy and a Homeowners policy. The insured's dog was sitting in the insured's auto, poking it's head out of the car window. The dog bit a pedestrian as the pedestrian walked by the insured auto.
Which policy or policies provide coverage?
ANALYSIS
The Homeowners policy alone may be triggered OR both the Auto and the Homeowners policies might apply under a "concurrent causation" analysis.
There is a split of authority on the application of coverage under these facts. These cases are: Transamerica v. Farmers Ins. Exchange, 463 N.W.2d 641 (N.D. 1990). In this case, the insured's mobile home insurer sought a declaratory judgment finding that the insured's vehicle insurer was the primary insurer for the claim brought by a pedestrian who was bit in the face by the insured's dog when she walked by the insured's pick-up truck on a public street. The North Dakota Supreme Court held that: (1) the vehicle policy covered the pedestrian's claim and (2) the vehicle and mobile home insurers were required to share prorata ("concurrent coverage") in covering and defending the insured in proportion to what the separate limits of their respective policies bore to the total limits of both policies.
The opposite result was reached in American States Ins. Co. v. Allstate Ins. Co., 484 So.2d 1363 (Fla.App. 1986) where the Florida Appellate Court held that a dog bite injury didn't arise out of the "use, operation or maintenance" of a vehicle. The insured had driven his mother's pick-up truck to the store to make a purchase. The claimant rode along as a passenger. In the back of the truck was the insured's pet bull dog who had gone along for the ride. The claimant exited the truck and passed the truck's open rear window when the dog bit him. The court held that where a motor vehicle was merely the situs of an injury which could otherwise have happened anywhere, the injuries didn't arise out of the "ownership, maintenance or use" of the motor vehicle. Here, the trip's sole purpose had been to go to the store; the dog was merely along for the ride as was the claimant. Thus, while the accident occurred at the vehicle, it didn't arise out of the use of the vehicle.
Concurrent Causation
The better view is probably found with the argument for concurrent causation. A number of cases have dealt with concurrent causation relating to the use of motor vehicles and other nonauto-related negligence.
The most notable case in this area is State Farm v. Partridge, 514 P.2d 123 (Cal. 1973). In this case, a passenger in the insured's vehicle was injured when a gun discharged and injured the passenger while the insured was driving off the roadway pursuing rabbits. The gun within the insured's vehicle was modified to allow "hair trigger action." This court held that where two independent causes proximately lead to damage to a third party, coverage will be found if either of those causes is covered under the policy. The court in Partridge found that the insured's conduct of modifying the trigger mechanism of the pistol constituted negligence which did not arise out of the use of a motor vehicle and was therefore covered under the insured's Homeowners policy.
CONCLUSION
If the State Farm v. Partridge concurrent causation analysis is applied to the present dog bite case, one or both policies could potentially provide coverage.
