Dog Bites Breast; Does Auto Insurance Cover It?

My dog; not the offending one. I needed art. He posed.

I know what you’re thinking; you think I put “bites breast” in the subject heading just to grab your attention. Nah, would I do that?

In fact, a dog inside of a car poked its snout through an open window and did bite the breast of a passing woman. And I presume it hurt quite a bit because there is money up on the table and an interesting judicial decision to go with it.

The issue came to a head this week in Allstate v. Reyes, in Dutchess County.  The car, with the dog inside and the window partly open, was parked in a “No Parking” zone when the woman was bitten.   The owner of the car, through his insurance company, ponied up the $25,000 policy that he had.

But the injuries — not listed in the decision — were obviously pretty substantial as the bitten woman then filed for arbitration against her own insurance company under it under-insured motorist claim provision. This is an endorsement on your policy that comes into play if the car that smashed into you (which is what usually happens) was carrying insufficient insurance for your injuries.

But this wasn’t a car accident, it was a dog bite. Did this injury occur arise out of the ownership, maintenance or use of the under-insured vehicle?

Want to take a guess? I’ll wait…

And the answer is, according to Dutchess County Justice James Pagones, yes. It did arise out of the use of the vehicle. Why? Because:

…the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of [the owner's] vehicle to haul the dog and [the owner's] act of permitting the rear window to remain open. It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries. [emphasis in original]

Justice Pagones made a point of italicizing that the conduct did not have to be the proximate cause, it only needs to be a proximate cause. And that is because an injury might result from multiple caues.

One interesting twist on this case is this: If this was just a dog bite case, the concept of negligence wouldn’t exist. In New York, we have strict liability for animals with a known dangerous propensity. This is part of the infamous concept of “one free bite” — a concept that isn’t 100% accurate — that gives an owner notice of danger. So if there was no additional insurance through the under-insured endorsement, it would be impossible to obtain a judgment against the dog/car owner for simply the dog bite unless you could prove the dog had a nasty history.

Will you ever see this fact pattern again? Hell no. But I appreciate good judicial reasoning in an off-beat case.

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5 Responses Leave a comment

  • Dan Fisher 2012.12.17 at 19:12 | Quote

    I’m befuddled — would uninsured motorist cover her injuries if, say, a box fell off the back of a truck and broke her leg? Is the reasoning that you don’t need to be in a car, or injured by a car, to collect off your own insurance for an injury related to a car?

  • Eric Turkewitz 2012.12.17 at 21:35 | Quote

    Is the reasoning that you don’t need to be in a car, or injured by a car, to collect off your own insurance for an injury related to a car?

    The magic language is whether the injury resulted from the “ownership, maintenance or use” of the vehicle.

    Since it is common for people to transport dogs in vehicles, this injury resulted from its use. The same would be true if a box fell off the back of a truck (or the roof of a car) into traffic.

    Under this layer of insurance, it is worth noting, the insurance policy of the tortfeasor (the owner of the car in question) has to first be exhausted. Only then could people proceed under their own policy for under-insurance.

  • Dan Fisher 2012.12.17 at 21:53 | Quote

    @Eric Turkewitz – I didn’t put my question right. Why does the person walking by get to collect from her insurance, when her car wasn’t involved? Could she collect from her insurance if somebody, say, threw a bottle at her from a car as she was walking on the sidewalk?

  • Eric Turkewitz 2012.12.17 at 22:01 | Quote

    Could she collect from her insurance if somebody, say, threw a bottle at her from a car as she was walking on the sidewalk?

    Let’s leave the bottle aside and look at a more fundamental issue: You are a pedestrian and I hit you while driving. I only have 25K, which is meaningless for your crushed leg.

    But you also have an auto policy in NY, and one of the endorsements is for underinsurance. (This is statutory, you have to have some.) You can then proceed to your own insurance carrier and make a claim, even though your car wasn’t involved.

    This endorsement isn’t about your car, even though part of your policy. It is to protect you from the underinsured (or uninsured) driver of another car.

    From there you can go to look at more obscure ways the phrase ownership, maintenance or use might come into play, such as the dog in this case, or the bottle thrown in your example.

  • Dan Fisher 2012.12.18 at 08:36 | Quote

    Aha! Thanks.

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