Defense Digest

Premises Makes A Difference In Dog Bite Coverage Claim

In an impressive application of clear policy language and common sense, the Pennsylvania Superior Court has ruled that an insurance company does not owe coverage for a dog bite claim not arising out of use of the insured premises.

On April 12, 2001, a child was attacked while walking on New Frederick Street in Wilkes Barre, Pennsylvania by two Rottweilers running loose.

A civil action for personal injury was commenced on behalf of the child against the owner of the dogs and one of his several businesses, located near where the incident occurred. The dogs had escaped from that business property.

The complaint alleged that the owner maintained the Rottweilers as pets and as watch dogs for his several properties, including 313 McLean Street, Wilkes Barre, as well as the New Frederick Street business property from which the dogs escaped.

The dog owner had an insurance policy with Tuscarora Wayne Mutual Insurance Company. The policy included a limitation of coverage to property designated in the schedule – 313 McLean Street, Wilkes Barre, Pennsylvania. Further, the policy stated that the insurance applied only to injury arising out of the ownership, maintenance, or use of the premises shown in the schedule.

Tuscarora Wayne started a declaratory judgment action, seeking to have the court find that Tuscarora did not owe coverage for the dog bite claim. Tuscarora filed a Motion for Summary Judgment in the declaratory judgment action on the basis it owed no coverage as a matter of law, while the injured child's mother, a defendant in the declaratory judgment action, also filed a Motion for Summary Judgment, claiming the dog owner was owed coverage by Tuscarora as a matter of law.

The trial court first denied the mother's Motion and granted the Motion for Summary Judgment of Tuscarora. Later, for unexplained reasons, the trial court reversed itself, holding that Tuscarora did owe coverage to the dog owner for the dog bite claim against him.

Tuscarora appealed that decision to the Pennsylvania Superior Court.

In Tuscarora Wayne Mutual Insurance Company v. Kadlubosky, et al., 2005 Pa. Super. 402 (December 6, 2005), the Superior Court reversed the trial court, concluding that Tuscarora Wayne did not owe the dog owner a duty to defend or indemnify him for the dog bite claim under the policy.

In doing so, the Superior Court rejected the position of those seeking coverage that the policy language was ambiguous. The court began its analysis by noting that the allegations of the underlying complaint determine coverage. Therefore, in this case, in order to trigger policy coverage, the child's injuries must have arisen out of the dog owner's ownership, maintenance, or use of the 313 McLean Street, Wilkes Barre property and operations necessary or incidental thereto.

The court found this provision clear and unambiguous on its face. It noted that a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.

Simply put, the court stated that the case involved two dogs escaping from a property not covered under the policy and, importantly, not arising out of the ownership, maintenance, or use of the insured property or operations necessary or incidental thereto. Hence, there was no coverage under the Tuscarora policy.

Lastly, the court found no causal connection between the dog owner's ownership, maintenance, or use of the insured property (i.e., 313 McLean Street), which was a tenant occupied dwelling, and the escape of his two dogs from his towing business (New Frederick Street), a property not covered under the insurance policy, and the subsequent attack on the child.

*Gordon is a shareholder in our King of Prussia, PA office. He can be reached at (610) 354-8286 or gbsimmons@mdwcg.com.