Around October 12, 1955, a boy around ten years of age was playing with a ball when it rolled into an adjacent yard. The boy went in to the back yard to reclaim his ball and noticed a boxer breed dog on a chain in the yard. When the dog saw the child, he became aggressive. On the boy’s second attempt to retrieve his ball, the dog broke the harness that he was wearing. He lunged against his chain and ultimately broke loose of the harness that he was wearing. The dog chased the boy back in to the adjoining yard and bit him.
The boy’s father filed a lawsuit against the owners of the property. This lawsuit maintains the property of the policy holder, i.e. the dog and his harness, were not maintained properly. It cites that it was negligent of the property owners to place a vicious dog on an inadequate harness. He further states that placing the vicious dog in the inadequate harness constitutes an act of negligence. The owners of the property notified their insurance carrier of the suit. The insurance carrier then told the dog owners that they would not be covered under the guidelines of the policy. The insurance company informed the property owners that there was a special policy that covered injury caused by dogs and horses. The company informed them that since they had not purchased that additional policy, that they would not be covered by a defense action in this law suit.
The property/dog owners disagreed. They put the company on notice that they felt that this incident had arisen out of a negligence action which was covered by the policy. They advised that because the accident began on their property where the dog was not tied up sufficiently, that the insurance company was liable to cover it whether or not they specifically had a dog hazard on the policy. The insurance company promptly refused to defend them in the law suit. The property owners then initiated an action requiring the insurance company to represent them in the lawsuit based on a portion of their insurance policy called Division 2. The Dogs and Horses division of the policy is specifically listed as Division 5 which the policy holder/property owner/dog owner did not pay extra for.
It is the policy holder’s contention that the “premises hazard” as defined in the policy under Division 2 is applicable to this situation since the damages arose out of an injury that occurred as a result of the “ownership, maintenance, or use . . . of the premises and the ways immediately adjoining and all operations necessary or incidental to such purposes.”
The issue at hand here is not the case of the dog bit. The only issue being addressed in this suit is the liability of the property owner’s insurance company to represent and cover all legal issues. It is not addressing the liability of the dog bite per se. It is just addressing whether or not the insurance company is responsible to represent the policy holder.
The Court finds that just because the policy holders did not pay for the special coverage afforded by Division 5, it does not mean that they are not covered by Division 2 which holds that the insurance company is liable for hazards arising from negligence on the property. The court contends that if the insurance company had intended Division 2 to not overlap with Division 5, they should have worded the policy to specifically state that Division 2 did not apply to any “act arising out of a hazard created by an animate object such as a horse, dog, or other pet enumerated in other divisions.” The policy does not say that.
Therefore, the Court finds that the insurance agency is culpable (responsible) for covering the liability of the policy holder in this situation due to the following claims:
The incident and injuries were the result of a negligent act of the property owners in failing to maintain the property in a safe condition. This is demonstrated by the use of a vicious dog to guard the premises. Secondly, the property owners/policy holders were negligent in that the property itself was not maintained adequately. This is demonstrated by the harness that was placed on the vicious dog which broke. The harness therefore was not adequate to hold the vicious dog that it was placed on. The fact that it broke proves the negligence claim.
Because the policy holders are claiming that the underlying negligent maintenance of their property was responsible for the injury to the boy, the court finds that the insurance company is liable for the damages under Division 2 of the policy. The reason for this is because the liability here is placed not on the place where the ultimate act of injury, i.e. the dog bite actually occurred, but rather the place where the act of negligence was “initiated, originated, or occurred.” Since that place is the property owner’s yard and that yard is insured by the terms of Division 2 of the policy, the insurance company is required to cover the policy holder for the negligence which started on their property.
In fact, the insurance company in their own brief prepared to the court stated that if the dog bite had occurred on the insured’s property that the incident would have been covered because the dog had been kept in an improper or negligent manner. The Court maintains that there can be no distinction in the insurance company’s liability under Division2 for negligent maintenance of the premises, when the dog bite occurs on the premises as a result of the negligence, and when “the same negligent maintenance of the premises is claimed but the (actual dog bite) occurs off the premises.”
The Court so rules that the insurance company is responsible to defend the property owners and pay for any judgment against them as a result of this injury within the limits of the insurance policy as it results from the pending negligence lawsuit in the Supreme Court of New York County.
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