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In July 2020, a young boy was injured when a dog attacked him at an apartment complex owned by Missy J, LLC. IN Missy J, LLC v. Westchester Surplus Lines Insurance Companyno. 21-cv-848-SE, Opinion No. 2022 DNH 157, United States District Court, D. New Hampshire (December 19, 2022) Insurer refused to defend or indemnify Missy J due to an “Animals Exclusion.”
After the boy’s mother sued Missy J to recover for her 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.
Missy J sued in New Hampshire state court against Westchester seeking a ruling that the parties’ commercial liability policies provided coverage for the lawsuit against Missy J and the boy’s injuries. Westchester removed the case to the USDC.
Missy J owns an apartment complex in Manchester, New Hampshire. Westchester insured Missy J under a commercial general liability policy. The policy also lists certain damages and injuries for which it does not provide coverage. The policy includes an “Animal Exclusion” provision as follows: “This policy does not cover ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ arising out of or arising out of ownership, existence, maintenance, presence, training or use of animals on an insured’s premises or in an insured’s business, including a. dogs; …” (my italics)
On July 10, 2020, a pit bull attacked a young boy who was visiting one of the apartments in the complex. The boy’s mother, Briona Reed-Sounia, sued Missy J, Westchester denied coverage because of the policy’s pet exclusion provisions.
Missy J sought a declaratory judgment that Westchester wrongfully denied coverage for the dog attack at the complex. In support, Missy J argued that the animal exclusion provision in the policy was ambiguous and could reasonably be construed to apply only to an animal owned, controlled or used in its business (such as a guard dog) by Missy J or its agents. Missy J argued that because the exclusion provision is ambiguous, the court must construe it against the insurer and in favor of coverage.
Westchester disagreed, arguing that the animal exclusion provision is clear and unambiguous and excludes coverage for the boy’s injuries because they arose from the existence or presence of a dog on Missy J’s premises.
Missy J and Westchester agree that Missy J’s liability for the dog attack would have been covered by the insurance but for the animal exclusion provision.
The plain language covers the factual circumstances for which Missy J is seeking coverage in this case: a visitor’s bodily injury arising out of existence or presence of a dog at Missy J’s premises, the complex.
The Exclusion expressly and unequivocally excludes bodily injury arising out of the presence of an animal on Missy J’s premises, which specifically includes the complex. That language covers the exact factual circumstances for which Missy J seeks coverage here: liability incurred by reason of the boy’s bodily injury arising out of the presence of a dog at the complex.
The animal exclusion provision is written in clear and unambiguous language and excludes from the insurance coverage the event in question in this case. Parties cannot create ambiguity out of whole cloth where none exists, because the provisions are not ambiguous simply because the parties interpret them differently. Therefore, Westchester has carried its burden of showing the absence of coverage under the policy and is entitled to summary judgment.
Westchester’s motion for summary judgment is granted and Missy J’s motion for summary judgment is denied.
Just because Westchester and Missy J disagreed about the meaning of a clear and unambiguous exclusion does not render the term ambiguous. Since the dog was on the insured’s premises and was the cause of the child’s injuries, the exception applied. The fact 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 was in the premises.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
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Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and firstname.lastname@example.org
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