During the summer in Maine, we inevitably see an uptick of dog bites as more folks are out-and-about enjoying the nice weather. Many are accompanied by their dogs, or they may be more lax regarding their dog’s outdoor enclosures.
Portland dog bite lawyers want to point out that Maine is a strict liability state with regard to dog bites. That means if a dog injures another person, the owner or keeper is liable for whatever damages result. M.R.S.A. 3961 holds that any fault on the part of the injured party won’t reduce damages covered, unless the court finds that fault exceeded the fault of the owner.
In instances of dogs biting children, this is rarely an issue because owners are supposed to recognize that children do not have the foresight as adults when approaching and handling dogs.
While the Centers for Disease Control and Prevention don’t track dog bites in Maine, but on average, 4.7 million Americans suffer dog bites annually. Most of the time, these injuries are covered under the homeowner’s liability insurance.
There are some cases, though, in which the owner of the dog has to fight for the insurance company to defend them. While this might not seem the concern of the plaintiff, it’s important for the insurer to be involved in the process. Ultimately, that is likely who will cover the cost of damages.
Recently, an insurance company’s refusal to indemnify its customer in civil litigation led to a summary judgment in favor of the insurer, which was later vacated by the Maine Supreme Judicial Court.
In Howe v. MMG Ins. Co., the insurer argued it wasn’t liable in the case because the plaintiff sought only equitable relief, or a non-monetary judgment. However, the dog’s owner argued the lawsuit against her also sought monetary damages, and as such, the insurer was obligated to cover those costs.
The dog’s owner lived in one of four condominiums in a complex. In April 2013, the condo association sued her on four counts relating to her dog, including nuisance, negligence and violation of 7 M.R.S. 3952, which bars one from keeping a dangerous dog.
The insurer argued it had no duty to indemnify because the dog hadn’t actually caused anyone injuries or damaged property. Therefore, plaintiffs were only entitled to equitable relief.
The trial court sided with the insurer, finding the nuisance complaint sought only an injunction, the negligence claim made no assertion of injury or property damage and therefore there was no private right of action against the insurer.
The dog’s owner appealed.
The Maine Supreme Judicial Court, in weighing the case, noted first of all that an insurer’s duty to defend is a broad one. Citing the recent decision in Cox v. Commonwealth Title Ins. Co., if any complaint contains an allegation that, if proven, might fall under the coverage afforded by the policy, the insurer has a duty to defend. One needs only show the potential for this, even if the complaint isn’t likely to survive a motion to dismiss.
Here, the complaint did allege that the dog was “vicious, threatening and has bitten people.” The complaint also alleged the dog had bitten, scratched and damaged property owned by the association. It was true the association sought injunctive relief. However, the claim also was clear in its demand for “damages, interests, penalties, costs and attorney fees.”
Based on this, the high court vacated the trial court’s summary judgment in favor of the insurer and ordered the insurer to defend the dog’s owner.
If you are the victim of a dog bite, contact Peter Thompson & Associates at 1-800-804-2004 for a confidential consultation to discuss your rights.
Howe v. MMG Ins. Co., June 17, 2014, Maine Supreme Judicial Court