'Prohibited Dog' Exclusion Bars Coverage in Arizona for Negligence Claim

Emileigh Clark alleged that a tan pit bull owned by Ryan Masi severely bit her hand and that, after he was able to get his pit bull under control, she asked him several times if his dog had its shots. Clark alleged that Masi responded that he would go put his pit bull and his other dog away and then come back. Clark alleged that she tried to persuade him to stay at the scene but that he left and did not return.

Clark alleged that because Masi had not disclosed whether his Pit Bull had its shots, she underwent treatment to prevent her from contracting rabies. Consequently, she alleged, she developed a “serious and debilitating infection that could have been more aptly treated but for…Masi's disappearance.”

Clark sued Masi, alleging that Masi had acted negligently by, among other things, failing to disclose whether his pit bull had its shots, which “needlessly compounded and exacerbated” her injuries.

Thereafter, Masi's homeowners insurance carrier, American Strategic Insurance Corporation (ASI), filed a declaratory judgment action, alleging that it had no duty to defend or indemnify Masi because all injuries allegedly sustained by Clark were caused by a prohibited breed of dog as defined in the policy. ASI moved for summary judgment.

In response, Clark contended that the physical injuries she suffered as a result of Masi's alleged negligence in failing to inform her of the dog's medical condition were not “caused by” the dog bite.

The trial court granted ASI's motion, and Clark appealed.

The Policy

Masi's homeowner's insurance policy provided:

If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” … caused by an “occurrence” to which this coverage applies, we will:

1. Pay up to our limit of liability for the damages for which an “insured” is legally liable.

The policy defined “occurrence” as:

an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results … in … “[b]odily injury”.

The policy excluded any coverage for damages caused by animals, but an animal liability endorsement provided coverage for:

loss caused by animals

that Masi:

owned or kept.

An exclusion provided:

SECTION II—EXCLUSIONS

Under E. Coverages E—Personal Liability and F—Medical Payments to Others Coverages E and F do not apply to the following:

Item 10. is replaced by the following:

10. “Bodily Injury” or “property damage” caused by:

a. prohibited breeds of dogs;

…

owned or kept by you or any insured, resident or guest whether or not the damage occurs on your premises or any other location.

Prohibited breeds of dogs include … Pit Bulls…. Any mixed breed made up of one or more of the breeds listed above is also considered a prohibited breed of dog.

The Appellate Court's Decision

The appellate court affirmed, finding that Clark's claim that Masi had failed to tell her whether his pit bull had timely received rabies shots was excluded from coverage. It first reasoned that Clark alleged that Masi had made a conscious decision not to inform her of his dog's medical condition or return after he restrained his dog to answer her questions. As such, the appellate court found, his actions were not part of an “undesigned, sudden, and unexpected event.” Because intentional conduct fell outside the definition of an accident, Masi's alleged failure to inform was not a covered “occurrence,” the appellate court ruled.

The appellate court also rejected Clark's argument that her bodily injury was “caused by” Masi's separate conduct and not by a prohibited breed of dog, and that, as a result, the exclusion did not apply. It explained that the “unambiguous language” of Masi's policy excluded coverage for bodily injury “caused by” a pit bull and that Clark allegedly was bitten by Masi's pit bull and received medical treatment (including additional shots) because of that incident.

As such, although Clark alleged separate injuries based on her treatment, those injuries were “caused by” the dog bite, the appellate court ruled. Thus, it decided, Masi's alleged negligence in failing to inform Clark of the dog's medical status was part of an uninterrupted and continuing cause that was caused by the excluded dog bite.

Finally, the appellate court held that the doctrine of concurrent causation did not apply because Masi's alleged negligence in failing to inform Clark of his dog's medical condition necessarily was “tied to the dog bite.”