Massachusetts Appeals Court Holds Plaintiff Has Viable Claim Against Insurance Company Following Dog Bite Injury

The defendants owned a dog that caused property damage and injury to the plaintiff. She filed suit against the dog owners and Vermont Mutual Insurance Company (Vermont Mutual). Vermont Mutual counterclaimed and cross-claimed, seeking a declaration that the homeowner’s policy at issue was void as a result of the insureds’ material misrepresentations on their application for insurance as to the dog’s bite history and their history of loss. Following a bench trial on the issue of coverage only, the lower court agreed with Vermont Mutual on the bite history issue and accordingly dismissed the plaintiff’s complaint against Vermont Mutual. The dog owners and the plaintiff (collectively, the appellants) jointly appealed. The Massachusetts Court of Appeals agreed with the appellants and vacated the lower court’s judgment.On December 30, 2010, the dog owner visited the Tarpey Insurance Group (Tarpey) in Peabody for the purpose of obtaining homeowner’s insurance for his residence in Peabody. With the assistance of one of Tarpey’s customer service representatives, he completed an application for insurance with Vermont Mutual. On the application, he responded “Yes” to the question, “Are there any animals or exotic pets kept on premises?” Under the “Remarks” section of the application, the representative noted, “American bull dog — no biting incidents.” Another section of the application was entitled “Loss History” and asked, “Any losses, whether or not paid by insurance, during the last 6 years, at this or at any other location?” The dog owner responded “No” and placed his initials adjacent to his response. He signed and dated the application. Vermont Mutual subsequently issued a homeowner’s policy to the the dog owners.

On March 18, 2011, the plaintiff was walking her two Yorkshire Terriers on Harrison Avenue in Peabody. As she was walking near the dog owners’ home, their American Bulldog, Bocephus, ran out and attacked her dogs. Before people could restrain Bocephus, he injured the plaintiff’s dogs. In attempting to protect her dogs from the attack, she suffered a broken arm, a laceration to her face, and scrapes to her knees, elbows, and ankles. On March 21, 2011, the dog owner reported the incident to Tarpey, which in turn notified Vermont Mutual.

Following notification of the claim, Vermont Mutual commenced an investigation. During that process, it learned that Bocephus had bitten two other dogs prior to the date of the dog owner’s insurance application.

On July 30, 2013, the plaintiff filed a complaint in the Superior Court, alleging strict liability and negligence on the part of the dog owners and unfair claim settlement practices on the part of Vermont Mutual. On August 26, 2013, Vermont Mutual filed its answer, cross claim, and counterclaim, seeking a declaration against the plaintiff and the dog owners that the policy was void and did not afford coverage. In July 2014, the case was tried on the issue of coverage only. During the trial, the parties stipulated to the dismissal of count V of the plaintiff’s complaint, alleging unfair claims settlement practices against Vermont Mutual, without prejudice.

The judge concluded that the phrase “biting history” was unambiguous, with the general understanding of the word “biting” read to mean biting anything or anybody. Finding that the dog owner had neglected to answer truthfully that his dog had a biting history, the judge concluded that he had made a material misrepresentation on his application for insurance. Since a material misrepresentation is dispositive on the issue of coverage, she ordered that judgment be entered for Vermont Mutual on its counterclaim for declaratory judgment.

On appeal, the appellants argued that the judge erred in finding a material misrepresentation as to the bite history portion of the application. Likewise, they argued, no material misrepresentation was made with respect to the loss history portion of the application. Finally, they argued that the judge erred in ordering the entry of final judgment dismissing count V of the plaintiff’s complaint as against Vermont Mutual. The Massachusetts appeals court agreed.

Regarding the alleged misrepresentation as to bite history, the appeals court held that since the language was ambiguous, it had to afford the insureds the benefit of the reasonable interpretation that was most favorable to them, namely, the one that limited the biting history to humans only. Since the dog owner answered that question honestly, for it was undisputed that Bocephus had only bitten other dogs, his response could not be labeled a misrepresentation by Vermont Mutual.

Regarding the alleged misrepresentation as to loss history, the appeals court concluded that as the insureds, the dog owners were entitled to the interpretation that favored them, and since it was undisputed that the $200 payment was the only disputed loss, the dog owner’s response to the loss history question was not a misrepresentation.

The appeals court concluded that the appellants correctly observed that the final judgment dismissed count V of the plaintiff’s complaint, which alleged unfair claim settlement practices against Vermont Mutual, despite the parties’ earlier stipulation to dismiss that count without prejudice. Since a final judgment on the matter prevented the plaintiff from reviving this claim as contemplated by the earlier stipulation, the court reversed the judge’s ruling as an abuse of discretion.

For these reasons, the lower court’s judgment was vacated.

If you have been hurt in an animal attack, you may need the assistance of a dog bite lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.

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