Dog Bite Insurance

THREE BITES AND COVERAGES(?)

Michael Sean Quinn*

Suppose the large dog, Ruffian, belonging to A bit B three times in A's front yard, where A and B were having a hostile but peaceful conversation. In other words, the two disagreed and argued their cases.

Here are the three bites; they all take place within about 3 minutes of each other. 

(1) A is not paying attention and for some reason, say, as B wags his finger at A, Ruffian leaps up and bits B on his wrist.  Mind you this is a firm bite. B injured; skin broke; the arm bled; nerve was more than just touched.  A is obviously negligent. 

(2) B is pissed and begins shouting, and A is also upset all the way around. However, A reaches out and pushes B, while yelling at B, "Makes friends with Ruffian 'Asshole' and do it quickly. Reach out and pet him, and do it now, Buttwipe." The shouting continues, and A does not reach for Ruffian to get him under control, even though A knows that this sort of thing has happened at least twice before. The same arm bitten; further up it; nerve damage more severe.  Assume that A is thereby reckless.

(3a) Shouting goes up and continues. B takes a step toward A, though without fists clenched or up, and A says to his dog, "Ruffian, get him." A does not know full well that Ruff will leap and bite. Still, he exactly directs an event that hurting B pretty badly further up the same arm; same nerve system; dog's head shook and twisted; a good deal of blood spilled this time. This is clearly a deliberate act. 

(3b) A knows full-well that Ruff will do as he is commanded and do so vigorously, aka ruffly. 

So, what's covered and what's not? (1) Obviously covered. (2) Probably covered, except for punitive-exemplary damages. (3a) Deliberate act by A and hence not covered at all, probably. (3b) Certainly not covered. Keep in mind, however, that these three bites are all part of the same event and that it is mind-numbing--or at least counter-intuitive--to say that they are separate occurrences. Also, keep in mind that B's ultimate injuries get worse from the separate bites, but it is at least virtually impossible to divide them up.

April 1, 2021: Perhaps President Biden could use one of these policies.

*Michael Sean Quinn

Law Office of Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com 

INSURANCE CONTRACT/POLICY INTERPRETATION AND AMBIGUITY

HOW TO READ, THINK, AND STRUCTURE

Michael Sean Quinn*

Sometimes there are brief and succinct formulations of the la> such that if L grasps it deeply--down into the lawyer-component of his inner being, s/he will understand the legal situation and know what needs to be done. Contract, and therefore insurance policy interpretation is like this, and a recent Texas Supreme Court case provides exactly what I am talking about.  

The case is U.S. Metals Incorporated v. Liberty Mutual Group, Incorporated dba Liberty Insurance Corporation, 14-0753 (Supreme Court of Texas, decided December 4, 2015. The Court is analyzing the meaning of the language in an insurance policy. Here is what it said in formulating what it called "[a] few basic principles [that] guide our analysis":  

"The interpretation of and insurance policy, like other contracts, begins with the text, and requires that undefined words be given their plain, ordinary, and generally accepted meanings absent some indication of a different intent. An interpretation that given each word meaning is preferable to one that renders one [of the words] surplusage. And a policy provision is ambiguous only if it is subject to more than one reasonable interpretation and not merely because the parties or other courts differ over its interpretation."

Sound simplistic, axiomatic, the stuff of Contract Law 101.  Surely.  All those things upon cursory reading.  But consider sitting with, or even looking, staring it, and contemplating it. You will find it rich and a profound source of sound guidance.  In part, these observations are not Contract 101 or Insurance 201 because in those courses, the case books supply only cases--if they prevent more than one--in which ambiguity was found and thereby leave the student with the impression that court findings of ambiguity happens often. See below. 

Interestingly, the court does not say here that if there is an ambiguity, at least in an insurance policy, the is a presumption that the insured's interpretation of the provision is correct, even if, of the two differing views, the insured's is the less plausible or semantically attractive. The same rule probably applies to other contracts with the non-drafting party entitled to an analogous presumption. This too is profound guidance, when the right sort of matters come up. 

Another thing the court does not say is that, as a matter of empirical fact, courts finding provisions of insurance policies ambiguous is extremely rare. Trial court judges know this, as do the appellate judges. Thus, the trial court judges know that there is little danger than they will be reversed if they say "No ambiguity here."

I personally have spend many, many hours of trying to find--some might say "invent"--ambiguities that might persuade a court.  I have succeeded only very rarely.  In my view, "mere [or "ordinary"] ambiguity is not recognized as by courts as ambiguity, as "court ambiguity," my phrase.  To be "court ambiguity" the term must be very ambiguous, and it must be in an absolutely crucial section of the phraseology. What courts as "mere" ambiguity versus "court ambiguity"? Not everyone knows it when s/he sees it, so contemplation on the basic principle is worth your time. 

Usually L's trying hard to find an ambiguity in an oft used insurance policy is a waste of L's time and of C's money.  True, it did work to some extent in environmental litigation a couple of decades ago, but it doesn't much any more. I have heard large firm lawyers repeatedly claims that they have protected and extended their clients' interests by finding "court ambiguity." I believe fore various reasons that this is lawyer braggadocio, a lack of memory, a misunderstanding of case history, or simply self-deception, none of which is infrequent. 

 If it's going to be found systematically in the near future it will be in "cyber" (or "digital") insurance-dispute (often what are known as coverage) cases. In that area, there has been relatively little reported  insurance litigation, as this sort of thing goes, and/or, to be sure, there are not established and systematically enforced policy patterns. 

Moreover,  technical engineering terms are often well defined, so my sense of more "court ambiguity" found in the virtual world may simply be the fantasy of an addicted "ambiguity looker." TV and similar talk does not by itself create "court ambiguity."

*Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com

Law Office of Michael Sean Quinn 

""LOSS-OF-USE" DAMAGES, A SLAVE NAMED "BEN," AND TEXAS LEGAL HISTORY

DAMAGES INFLICTED AND THE RIGHT TO COMPENSATION

Michael Sean Quinn*

Traditionally, in the common law the damages one was entitled to for the loss of a tangible object was the value of the object at the time of its loss.  The most traditional of all causes of action for which this was what we now call the tort of conversion, i.e., the taking away of personal property. 

In J [and] D, LLC v. American Alternative Insurance Corporation, #14-0574 (Texas Supreme Court, January 8, 2016), the Court adopted the view that  the actionable monetary loss (injury) from the loss-of-use of a tangible object of personal property, including its total destruction, justified an award of compensation.  As I have written elsewhere about this case recently. Undoubtedly  it represented a change in the (at  least perceived) law, for such loss-of-use damages had been (it has been generally received) available for 100 years or so, for injury or damage to personalty which was not total destruction. 

As I have already written, this opinion is a remarkable opinion in several ways, including its exploration of Texas legal history. The court's main goal in this passage is to show that Texas has been sympathetic to loss-of-use damages for a very long time, and not just for cases involving physical injury to tangible property. The basic case was decided in 1852, Pridgin v. Strickland, 8 Tex. 427, a case based on the conversion of personal property. 

Unfortunately, as the Court pretty much said, the beginning of this Texas tradition is to be found in a slave case. The defendant wrongly possessed the plaintiff's slave, Ben by name. Setting aside procedural matters, a jury award the plaintiff $800 for the value of Ben, and $450 for the loss caused the plaintiff deprivation of Ben's use. [According to MeasuringWorth.com the "economic power" value of $1250 in 1952 would be $7,070,000.00 in 2014. At the same time this web site warns calculators that there are number of ways to measure changes in the values of money--certainly U.S. money--over time, and it is clear to me that this is largest difference.] 

In any case the defendant set up the argument that loss-of-use was not recoverable, but the Texas Supreme Court rejected that view since loss-of-use was a compensable loss. Thus Ben's owner was entitled not only to the value of Ben but the to value of Ben's work. (It may be of interest to legal history buffs that the Court cites the "most deplorable," case of Fail's Adm'r. v. Presley's Adm'r., 50 Ala. 342 (1874)(pre-Civil War death of slave from horrendous beating). 

The reader should keep in mine why the Case of Ben is being discussed  at all by the Texas Supreme Court. It is solely for the purpose of indicating how long recoverable loss-of-use damages have been central to Texas jurisprudence.  The illustrative character of the case has nothing to do with the fact that the chattel involved was a human being 

*Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com

Law Office of Michael Sean Quinn 

Headline: CGL INSURANCE POLICY DEFECTIVE SAYS TEXAS SUPREME COURT

CGL POLICY (CONTRACT) LANGUAGE "CONVOLUTED"

Michael Sean Quinn*

In a complex coverage case key words in the standard and almost universally used "Commercial General Liability" have been listed and then criticized both the language and its organization. The court called it 

"convoluted."

In this particular case, the Court also found that the language was unambiguous, and decided the case in favor of the insurer. U.S.Metals, Incorporated v. Liberty Mutual Group, Incorporated, Doing Business as Liberty Insurance Corporation, #14-0753 (Texas Supreme Court, December 4, 2015). (The details of this case may be discussed in another blog/blawg.)

What makes the use of the one term, "convoluted," significant is that if a document is convoluted it is much more likely to be confusing that if it straight forward. Convoluted documents are unclear. Indeed, it is part of the definition that a convoluted document is difficult to understand. Form and language are folded into each other in very complex and therefore confusing ways. 

 If a nearly universally used document, like a contract of insurance, is confusing, unclear, and at least close to misleading it is more likely that an ambiguity will be found by a court than if the language of the document is clear and the document not confusing. 

Though the document's convolutedness did not help the insured in this case, it is a valuable source of argument for insureds in other cases. This idea will be even more generative of and a supportive beginning places in disputes involving insurance policies where an ordinary individual outside a business context is the insured. This point is  especially applicable to auto and homeowners insurance.  

*Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com

Law Office of Michael Sean Quinn 

Damages for Total Destruction of Tangible Personal Property

PHYSICAL DAMAGE TO CHATTELS TODAY AND THE "LOSS OF USE" DOCTRINE

Michael Sean Quinn**

For several centuries damages for loss of use of chattels, e.g., horses and/or slaves and/or other movable (i.e., personal) property could be awarded by courts to plaintiffs if the chattel was merely damages to some degree, i.e., partially damages, but could not recover for loss of use if the chattel, e.g., the horse or the slave was totally destroyed, e.g., if the slave were whipped to death or the horse was shot dead.

On January 8, 2016 a unanimous Texas Supreme Court at  long last rejected this view in a witty, historically oriented, explicitly jurisprudential opinion, joined the high courts of other states and adopted the view that loss of use damages could be recovered on the basis of a total loss for which a defendant was legally liable.  It did this principally on the basis of a comprehensive, correct and just account of the nature of the idea of compensation, which is after all the foundation upon which the idea of damages is based. 

The theoretical discussion apply to all area of the law, but it will be most apparent in tort law. One can be sure of this at least because this is an insurance case, although the provisions of the carrier's policy are not at issue. JandD [JD] Towing, LLC [JD] v. American Alternative Insurance Corporation, #14-0574 (Tex. 2016). (The actual name of the company is "J [ampersand] D." I have not used that correct name because by damnable computer constantly changes the ampersand symbol to something  at least deficient, but also unrecognizable, and even absurd. I object.)

Probably the greatest impact of this case will be on accidents involving commercial autos, since that is where most of the damages for loss of use arise these days. In this case, JD's tow truck was rammed by another vehicle rendering it a total loss. The company had only one tow truck, so it lost profits. The only real question in the whole lawsuit was whether JD could recover loss of use damages--granted it was a small amount. The Supreme Court wrote a 44 page opinion with 206 footnotes to say "Yes." (Granted many of the numerous footnotes  are "Id." notes.) * 

And a worthy opinion it is. Witty, focused on ancient, older, and modern history, and providing a classic discussion on the nature of compensation.  The case will become a teaching-learning case regarding that alone. It will also become a model for how to right an upright and noticeable opinion that will be widely read and taught, if only in CLE courses. The section on the true nature of compensation will be cited in Texas cases and in the cases of other jurisdictions for generations to come.  

Curiously one of the justices declined to join the other 8 members in several parts of the opinions, although he did not dissent from what was actually said in those sections. Some politically oriented lawyer wags might claim that at least part of this silence from historical parts of the opinion were stimulated by the justice's political desire to avoid clearly condemning slavery and the involvement of Texas in that "dark era." 

For me, that comment by a lawyer might violate at least the spirit of the ethical disciplinary rules governing Texas lawyers, according to which many forms of judge condemnation by lawyers is discouraged, even forbidden.  I'm also sure that such an evaluation is unfair. Of course, all citizens--including lawyers--have First Amendment rights, but lawyers are limited, surely, by the fact that we are obligated to defend and not to deride the American adversarial system.  

*It is worth noting that the opinion also contains a very brief but interesting paragraph on negotiations with insurance companies. It must also be noted, though it is obvious, that the doctrine of the case will apply to any sort of tort involving any sort of tangible object: bulldozers, drones, and all sorts of cyber equipment alike. And, as already stated, the doctrine applies not just in tort actions. 

 

**Michael Sean Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com

Law Office of Michael Sean Quinn