50 Mass. App. Ct. 260 | Mass. App. Ct. | 2000
Harley the dog has a sorry record of recidivism in biting people. In what appears to have been at least his fourth and possibly seventh attack, he mauled and seriously injured Dianne Moores while she was lawfully on premises at 316 Spring Street, Marshfield. Those premises belonged to Harley’s owners, Joan Cincotta and Michael Callahan. Moores had come to the Cincotta/Callahan place as a business invitee to measure their tennis court for seal coating. We are not, however, concerned with canine malfeasance but with whether, under the terms of its policy, the Quincy Mutual Fire Insurance Co. (Quincy Mutual), the issuer of a homeowner’s insurance policy on property in Tuftonboro, New Hampshire, must defend Calla
We add a few more facts, culled from materials submitted in support of cross motions for summary judgment and the motion judge’s memorandum of decision, about real estate properties in which Callahan had an interest and about the insurance he carried in connection with those properties. Cincotta and Callahan, who are friends, have lived at the Marshfield property for ten years and owned it together. Callahan also owned premises in Randolph (where it appears his wife, Patricia, lives) and, together with Patricia, owned a property in Tuftonboro, New Hampshire. As to each of those premises, there was in force a homeowner’s insurance policy with personal liability coverage. The carrier of the insurance on the Marshfield property, Plymouth Rock Assurance Corp., has paid the limits of its policy, $500,000, to Moores and her husband, and the carrier on the Randolph property, New London County Mutual Insurance Co., paid its policy limits of $500,000. Neither company obtained a release for Callahan. Quincy Mutual’s limit on personal liability under the Tuftonboro policy is $100,000.
The ground on which Quincy Mutual has declined to defend or indemnify Callahan is that the exclusions section pertaining to the personal liability coverage provides: “Coverage E — Personal Liability . . . do[es] not apply to bodily injury or property damage: . . . arising out of a premises [¡owned by an insured . . . that is not an insured location.”
There have been several recent opinions which have sought to explicate the meaning of the phrase “arising out of.” They suggest the line of connection need not be as direct as proximate
There are more clues in the Quincy Mutual policy itself. As is characteristic of a standard homeowner’s policy, it has two categories of coverage: insurance against loss to property, including its use, and insurance against liability. Within liability coverage, there are, in turn, two categories: personal liability (Coverage E) and medical payments to others (Coverage F). Callahan seeks the protection of Coverage E, personal liability, under which the insurer contracts to pay to the limits of its policy “for the damages for which the insured is legally liable” and to provide a defense. The coverage is not confined to the insured premises. Had Harley bitten someone in front of the municipal building on Moraine Street in Marshfield, Callahan would be protected by the personal liability coverage of the Quincy Mutual policy on his New Hampshire property.
Concerning the medical payments to others coverage, the policy is more discriminating. It “applies only: 1. to a person on the insured location with the permission of the insured; or 2. to a person off the insured location, if the bodily injury: a. arises out of a condition on the insured location or the ways immediately adjoining; ... d. is caused by an animal owned by or in the care of an insured.”
Cincotta kept Harley for protection as Callahan was frequently away on business. The dog would, however, go off premises with Cincotta/Callahan from time to time, including to the New Hampshire place. The point is, Harley was not a condition of the Marshfield premises, as a protective electric fence would be. Harley’s bite was no more connected to the Marshfield real estate than had Callahan spilled hot coffee on a guest on those premises. It happened there, but it did not “arise out of,” as the phrase is understood. Callahan’s liability stems from his harboring a vicious animal — i.e., personal tortious conduct — not any condition of the Marshfield premises.
Our view accords with the weight of authority. An example, also involving an off-policy premises dog bite, is Lititz Mut. Ins. Co. v. Branch, 561 S.W.2d 371, 373-374 (Mo. Ct. App. 1977), in which the court held that a very similar “arising out of” other than the insured premises exclusion applied to the condition of real property and its operation, not to an easily movable dog. “A dog, whether permanently kenneled or tethered on the property, is not a part of the premises.” Lititz, supra at 373. The court made the point that personal liability coverage was without territorial limit, as in the instant case. Risk of tortious personal conduct, therefore, was not greatly expanded by an insured’s ownership of other real property. On the other hand, the many personal risks incident to ownership of property — the loose board, the falling roof slate, the defect in the walkway, the failure of outdoor lighting — are distinctly greater when an insured owns additional real estate that the insurer has not inspected and assessed from the point of view of risk. Lititz, supra at 374.
The Lititz court cited with approval Duggan v. Travelers Indem. Co., 383 F.2d 871, 875 (1st Cir. 1967), a dog bite case in which the court distinguished between a “result caused by the condition or operation or neglect of the premises or, more broadly, anything that happened on the premises.” That an accident happened on the premises did not make it “in connection with” those premises.
We hold that the exclusion in the Quincy Mutual policy of
So ordered.
Callahan’s complaint sought declaratory relief under G. L. c. 231, §§ 1 and 2.
In the exchange of motions for summary judgment before the Superior Court, Quincy Mutual won, and a judgment was entered in its favor. Callahan brought this appeal. An action by Moores and her husband against Callahan is pending in the Superior Court.
We have supplied emphasis for the word “on” and omitted emphasis in the text that highlights defined terms such as “insured location” and an “insured.”
The court in Duggan, 383 F.2d at 875, raised the possibility of a different outcome in the case of a dog known to be dangerous and kept on the premises, or a dog kept to guard the premises. We do not think that the character of a
Other cases that apply the “arising out of” other premises exclusion to a condition of or operation of the real property, but do not apply it to tortious personal acts, include: Sea Ins. Co. v. Westchester Fire Ins. Co., 849 F. Supp. 221, 224-226 (S.D.N.Y. 1994), aff’d, 51 F.3d 22 (2d Cir. 1995) (car accident caused by individual in insured’s employ); Hanson v. General Acc. Fire & Life Ins. Corp., 450 So. 2d 1260, 1261-1262 (Fla. Dist. Ct. App. 1984) (electrocution while assisting the removal of an antenna); Economy Fire & Cas. Co. v. Second Natl. Bank of Danville, 91 Ill. App. 3d 406, 409 (1980) (fire); Tacker v. American Family Mut. Ins. Co., 530 N.W.2d 674, 677 (Iowa 1995) (home remodeling work); Eyler v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 857-858 (Ky. 1992) (employee rolling tires down a hill); Dufrene v. Duncan, 634 So. 2d 19, 22 (La. Ct. App. 1994) (dog bite did not arise “out of a condition on the insured premises”). Compare Jackson v. Lajaunie, 270 So. 2d 859, 864 (La. 1972) (“any act or omission in connection with the premises” is a broader exclusion than “arising out of the use of the premises for the purposes of a service station,” and bars coverage of a handgun accident that occurred on the uninsured premises). See Lanoue v. Fireman’s Fund Am. Ins. Cos., 278 N.W.2d 49, 54 (Minn. 1979), overruled on other grounds by American Standard Ins. Co. v. Dang Van Le, 551 N.W.2d 923 (Minn. 1996) (exclusion for damage “arising out of any premises, other than an insured premises” did not exclude from coverage injury resulting from insured’s careless possession of whiskey, consumed by minors who then were involved in an automobile accident); Farmers Union Coop. Ins. Co. v. Allied Property & Cas. Ins. Co., 253 Neb. 177, 180-182 (1997) (dog bite in a traveling automobile did not arise out of the automobile’s use). Cf. Bianco v. Travelers Ins. Co., 99 A.D.2d 629, 629 (N.Y. 1984) (dog bite arose “out of any act or omission in connection with premises”); Marshall v. Fair, 187 W. Va. 109, 114 (1992) (unauthorized harvesting of timber); Newhouse v. Laidig, Inc., 145 Wis. 2d 236, 240 (Ct. App. 1988) (farm machinery accident).
Compare National Farmers Union Property & Cas. Co. v. Western Cas. & Sur. Co., 577 P.2d 961, 962-964 (Utah 1978). In that case a horse escaped from posse grounds because the main gate had been left open. Once out, the horse collided with an automobile, injuring a passenger. The court held the injury came within the “arising out of” other premises exclusion because the open gate, a condition of the premises, was the root cause of the accident. See also Arndt v. American Family Ins. Co., 394 N.W.2d 791, 793-795 (Minn.), reversing 380 N.W.2d 885 (Minn. Ct. App. 1986) (farm machinery considered part of premises and exclusion applies); St. Paul Fire & Marine Ins. Co. v.
