Dogged Determination

Part of the fun of practicing insurance coverage law is the opportunity to read appellate decisions that start like this:

“The cat will mew, and dog will have his day.” (Shakespeare, Hamlet, act 5, scene 1.) Here, Dwayne Vandagriff’s dog elected to have his day by biting Robert Grisham’s leg after escaping from Vandagriff’s parked pickup truck.

What is the coverage issue here? It is this: Does a dog bite occurring 20 to 25 feet away from the dog owner’s pickup truck, in which the dog has been left for between 30 and 120 minutes, “arise out of the use of” that truck, so as to be covered under the dog owner’s automobile insurance policy?

A surprisingly large number of California decisions have wrestled with similar questions. At its most basic, the question boils down to whether there is some identifiable causal connection between the way in which a vehicle has been used and the plaintiff’s injury. For instance, automobile coverage has been held to exist when a gun goes off inside a car as a result of a combination of its hair-trigger and the bouncing inherent in driving off-road. On the other hand, merely driving in a car to get to the scene of an otherwise unrelated criminal or tortious act has been held not to be covered. As for dogs: bites that occur inside the vehicle, when humans and dogs are sharing the space, or injuries that occur when humans and dogs both try to exit the vehicle simultaneously, may be covered by the auto policy. The Court of Appeal in this latest case, however, found that the dog bite was too far removed from the pickup truck in both time and space, and that the auto coverage does not apply. You cannot say the victim’s attorney didn’t try hard in a losing cause:

Finally, Grisham argues that Vandagriff was using his truck as a temporary pet storage, and this was a substantial rather than a trivial factor in causing Grisham’s injury. Grisham points to the water dish that Vandagriff left for the dogs in the pickup cab. One problem with this argument is that Grisham was not bit when the dogs were being stored in the vehicle. Of course, Grisham would say that’s the point --Vandagriff was negligently storing the dogs in the truck. Nevertheless, the temporary storage of the dogs in the truck is not much different from their transport in the truck. As we have seen, the transport of the dogs here is akin to the situation of transporting a tortfeasor who departs the vehicle and commits a tort; the tort is not considered to have resulted from the use of the vehicle. [Citations omitted.] . . . The fact remains, at the time of the biting, neither Grisham nor the dog had anything to do with Vandagriff’s truck; they were 20 to 25 yards away from it. The issue is not whether Grisham’s injury resulted from Vandagriff’s negligence, but whether that injury resulted from the use of Vandagriff’s truck.

We conclude that Grisham’s injury did not result from the use of Vandagriff’s truck.

The decision in State Farm Mut. Auto. Ins. Co. v. Grisham (Sept. 20, 2004), Case No. C045912, can be accessed at these links in PDF and Word formats. [Note: The links will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]

Comments

[UCL]

This opinion jives with a case I'm handing right now, where the insured under a homeowners' policy exited his vehicle in a parking lot after a small fender bender, and allegedly assaulted the plaintiff. The insurer reserved rights on both intentional act and use-of-auto exclusions, but would likely prevail only on the former and not the latter. (The insurer will probably settle without reaching the coverage issue, however, because it's not worth defending.)