Dog Bite Excluded

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Injury by "Existence" of a Pit Bull Dog Unambiguously Excluded

In July 2020, a young boy was injured when a dog attacked him in an apartment complex owned by Missy J, LLC. In Missy J, LLC v. Westchester Surplus Lines Insurance Company, No. 21-cv-848-SE, Opinion No. 2022 DNH 157, United States District Court, D. New Hampshire (December 19, 2022) the insurer refused to defend or indemnify Missy J because of an “Animals Exclusion.”

After the boy's mother sued Missy J to recover for his injuries, Missy J sought coverage from its insurer, Westchester Surplus Lines Insurance Company, under its commercial general liability policy. Westchester denied coverage and refused to defend Missy J.

BACKGROUND

Missy J owns an apartment complex in Manchester, New Hampshire. The policy includes an “Animals Exclusion” provision as follows: “This insurance does not apply to 'bodily injury' ... resulting from the ... existence, ... of animals on an insured's premises ... including a. dogs... ”

On July 10, 2020, a pitbull attacked a young boy who was visiting at one of the apartments in the complex. The boy's mother, Briona Reed-Sounia, sued Missy J, Westchester denied coverage on the basis of the policy's animal exclusion provision.

DISCUSSION

Missy J and Westchester agree that Missy J's liability for the dog attack would have been covered under the policy but for the animal exclusion provision.

The plain language excluded a visitor's bodily injury that arose out of the existence or presence of a dog on Missy J's premises, The animal exclusion provision is written in clear and unambiguous language. Therefore, Westchester carried its burden to show the absence of coverage under the policy.

ZALMA OPINION

Just because Westchester and Missy J disagreed about the meaning of a clear and unambiguous exclusion does not make the term ambiguous. Since the dog existed on the premises of the insured and was the cause of the child's injuries, the exclusion applied. That it would also apply if the dog was placed there for Missy J as a guard dog does not eliminate the exclusion for any dog that existed on the premises.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected]

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