In the past week, three dog bite victims have asked me to represent them after their original attorneys dropped their cases. All three incidents had the same feature: a dog owner with no insurance.
There are easy dog bite cases, and there are hard ones. The factors that can make a dog bite case a hard one may be things that a lawyer has never faced, no matter how long he or she has been practicing in the field of bodily injury law, including:
- A defendant that is the victim's aunt, uncle, grandmother, grandfather, best friend, or neighbor, who could be 100% in the victim's corner if approached correctly.
- A victim who is 100% against filing a lawsuit versus any of the people mentioned in the prior paragraph.
- A potential defendant that denies he has insurance.
- Witnesses who are children.
- The science of animal behavior, particularly the causes of canine aggression against human beings.
- The particulars, conflicts and simultaneous interaction of four types of laws that usually are applicable in every dog bite case: municipal ordinances, County ordinances, state statutes, and case law (including the Restatement of Law of Torts).
- "Dog court" hearings (i.e., administrative hearings or court proceedings focusing on the dangerousness of the dog and the irresponsibility of its owner or handler).
- A wide range of expert witnesses, almost all of whom are self trained, and essentially fake.
- Unique legal concepts, such as ownership of a dog, "harboring" a dog, "keeping" a dog, and provocation of a dog. Unusual legal concepts (not unique but unusual) like parental negligence in the supervision of a child, suits by children against parents, the standard exclusion for household residents in policies of homeowner insurance and renters insurance, the legal boilerplate that must be included and excluded from settlement documentation in order to ensure favorable tax treatment, and the paperwork and court presentation for the settlement of a minor's claim for bodily injuries.
All of the above topics are explored in detail on the Dog Bite Law website (www.dogbitelaw.com) and in the seminar-on-video, Anatomy of a Dog Bite Case. The purpose of this blog post is to discuss the standard of care for rendering legal services to a dog bite victim at the beginning of the relationship. While there are many things that can go wrong with a dog bite case, the focus of this article is going to be on the two threshold requirements for successful claim: a legally liable defendant, and insurance coverage. In dog bite cases, finding these things can present an attorney with unusual hurdles.
If you are a dog bite victim, you should know about these things. As you will read, there are basic facts that you can help gather so that your attorney can proceed forward with your case. Knowing the tactics and strategies set forth in this post will also enable you to monitor your lawyer's efforts and evaluate whether he or she is the capable dog bite lawyer you thought you had retained.
The hypothetical case
Let us consider a common and seemingly easy, "slamdunk" factual scenario for dog bite case. An unmarried, 30-year-old woman visited the home of a guy that she was interested in. She rang the doorbell. The guy opened the door, gave her a hug, and welcomed her inside. She saw a dog, and asked whether it was safe for her to pet it. The guy and his male roommate said that the dog was friendly. She leaned over to pet it, and it sprang at her face without warning. The teeth of the dog caught her forehead, one nostril and her upper lip, producing substantial injuries which included permanent scars and lumps. The jurisdiction has a statute commonly called a "dog bite statute" which makes dog owners legally liable for all losses and damages inflicted by their dogs. The animal control department conducted an investigation which confirmed that the roommate was the owner of the dog.
Sounded like a great case. As it turned out, however, there were complications. The first thing that the attorney did was to sign up the client. Then he sent a letter to the dog owner, asking for insurance information. When the dog owner responded by saying that he did not have insurance and was merely renting the house, the lawyer found out the name of the owner of the residence and wrote to her, again asking for insurance information. A law firm that does coverage cases responded on behalf of the owner of the house and her liability insurer, denying liability and asserting that there was no coverage applicable to the tenant.
To prosecute or not to prosecute
The victim's attorney has taken the case pursuant to a contingency fee agreement. The contract requires him to not only render services but also advance the costs of prosecuting the civil claim. At this point the lawyer is thinking about dropping the case.
If the lawyer does not terminate the attorney retainer agreement, however, he is ethically and contractually required to pursue the client's interests. The standard of care for dog bite lawyer is fundamentally the same standard of care for any personal injury attorney, with some modifications arising from the unique aspects of a dog bite case.
So, what should the lawyer do at this point? The rest of this article is about the standard of care when there does not seem to be a viable defendant in a dog bite case (i.e., a person who is liable and has insurance, assets or prospects).
Steps that the dog bite victim's lawyer should take
The first thing to do is to start looking for other owners of the dog. There are no hard and fast rules as to who the owner of a dog is. If you want it to be the person who is named as the owner on the animal control report, then look no further. An insurance company, a judge and a jury will have no trouble agreeing with the records of the animal control department or humane society. But in a case like our hypothetical example, you have to look further because this particular animal control report has specified that an uninsured person is the owner. You have to find someone else who has sufficient insurance, assets or prospects.
Thankfully, there are a lot of humane behaviors that can make a person the owner of a dog: feed the dog, let it sleep your room, teach it tricks, give it commands, walk it every day, and things like that.
Similarly, a person might own a dog that he thought he had given away. Consider a dog that comes into a household during a marriage. Both the man and the woman are listed as the owner of the dog. Then they divorce or become separated. The man retains the dog (and thinks he owns it) while the woman has what you might call visitation rights; she takes the dog to the veterinarian, walks it and keeps it at her new apartment for a couple of days per month. Odds are that she and her ex-husband will both be considered to be the owners of the dog.
This other owner does not have to be a spouse. An ex-girlfriend may still be living with her parents or may have moved back into her parents house. Anybody living in a house (other than a renter) is covered by the homeowners or renters insurance that covers the house. That means that the ex-girlfriend is covered. Under those circumstances the dog bite lawyer's job would be to go after the ex-girlfriend as a co-owner so there will be coverage by virture of her parents' insurance.
If you cannot find an insured co-owner of the dog, the next step would be to conduct an investigation to see whether the landlord is responsible for the incident in some way. Sometimes the landlord can be held responsible because he had overlooked his own rules which forbade dogs on the premises. Sometimes you have a situation where the dog has bitten other people, and the landlord, the manager or the security company who worked for them knew it. In many states the landlord has an obligation to get rid of either a vicious dog or the tenant who owns it, and if the landlord fails to do so, he can be held liable.
If you cannot find a co-owner of the dog or a landlord that can be held liable, you have to look hard at the dog owner's assets and prospects. You need to find out not only whether he owns real property, cars and boats, but also what line of work he is in, what his job title is, and what it pays. In other words, you have to engage an investigator to do an asset check. Do not stop there, however. Find out who the dog owner's parents are, determine whether they are still alive, and form a judgment as to whether the dog owner is soon going to inherit a considerable sum of money from them.
Suppose none of that works? Well, you need to file a lawsuit. In many cases, you will be pleasantly surprised when you receive a copy of the Answer, signed by an insurance defense attorney. It turns out that many dog owners are so convinced that the dog had every right to bite the victim, or that the dog did not hurt the victim, that they conceal their insurance until the last possible moment. In other cases, you will receive a phone call from a privately retained attorney, who will be more than willing to confirm that the defendants have no insurance, and to begin negotiating a modest settlement. Finally, there will be those times when the defendant defaults, and you need to discuss with the dog bite victim whether to obtain a judgment based on the default. That is a very difficult decision to make. I do not believe that the standard of care is to take a default judgment in every case, especially after determining that the defendant lacks insurance, assets and prospects.
When an uninsured defendant appears with an attorney, you need to either enter into a settlement that makes sense given the defendant's financial condition, or continue to pursue the possibility that there is insurance. There are a lot of lawyers who do not understand all of the different types of insurance that can cover personal liabilities, and take the word of laypersons when they say that they do not believe they have coverage for dog bites. You not only have the homeowner policy and the renters policy, but also umbrella policies and excess liability policies. There are even some insurance brokers who, in selling a customer "full coverage" for motor vehicle accidents, combine a low-cost motor vehicle liability policy with an umbrella policy – and the latter covers dog bites. Consider using interrogatories or taking a deposition, not only to find out what the defendant believes his insurance to be, but also to learn the name of his insurance broker so that you can go to the source and ask questions there.