2 Dogs + 2 Victims = 1 Occurrence (NY)
A federal district court recently ruled on an issue of first impression in the Second Circuit: whether a multi-dog, multi-victim attack constitutes one or more occurrences in Verlus v. Liberty Mut. Ins. Co. On a Spring day in 2011, plaintiffs Jean and Joanne Verlus were strolling along the street in the vicinity of the insureds’ home in White Plains, New York. While engrossed in conversation, the pair were suddenly face-to-face with two American Pit Bull Terriers appropriately named Doom and Diva. The dogs, owned by Liberty Mutual’s insured, sprung to attack the plaintiffs who attempted to escape the attack by running in separate directions. Diva first pounced on Joanne while Doom pursued Jean. Luckily for Joanne, she escaped Diva’s grasp, who then returned to assist Doom in attacking Jean. All the while, the insured purportedly witnessed the carnage yet took no steps to stop it.
The insured commenced a declaratory judgment action against Liberty Mutual arguing that the attack constituted three distinct occurrences under its homeowner’s policy: (1) Doom’s attack of Jean; (2) Diva’s simultaneous attack of Joanne; and (3) Diva’s subsequent attack on Jean. By contrast, Liberty Mutual argued that this was one continuous act, and as such should be considered a single occurrence under the homeowner’s policy.
The district court looked to the policy’s unambiguous language finding that the attack by the two dogs constituted “continuous or repeated exposure to substantially the same general harmful conditions” and was therefore one occurrence. The plaintiffs were walking within arms-length and were exposed to “the same general conditions – a simultaneous attack by two dogs…” Moreover, the court found it persuasive that the attack took place at the same location and at a substantially similar time.
Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information.