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May 19, 2017

Legal Update
William L. Boesch

Policyholder was entitled to withhold dog’s history of attacking other dogs, Appeals Court rules

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A question on an application for homeowner’s insurance that asked whether any household dogs had a “bite history” was, the Massachusetts Appeals Court held in a May 19 decision, ambiguous as to whether the question encompassed anything more than a history of biting people. Therefore, an applicant who denied that his dog had any history of “biting incidents,” and failed to tell the homeowner’s insurer about two recent incidents in which the dog had attacked (and bitten) other dogs—one of which resulted in police involvement and a $200 veterinary bill, which the applicant had paid on behalf of the victim—was not guilty of misrepresentation, and could look to his homeowner’s policy to cover a third attack resulting in injury to a dog and its owner.

In the decision, Schultz v. Tully, the Appeals Court overruled a trial judge’s ruling that the application question about a dog’s “bite history” contained no implicit limitation, and sought information about incidents involving “anything or anybody,” so that the applicant’s denial of any “biting incidents” was false. In the Appeals Court’s view, it would be reasonable for an applicant to assume that an insurer was not interested in knowing about every “common or negligible” incident in which a dog might “bite” another living thing—including where it “playfully nips” or “gets into an occasional scuffle with” another dog. From this premise, the court reasoned, it would be reasonable to assume, as the applicant in this case said he did, that the “bite history” question was limited to incidents involving human victims. The court also rejected a related argument by the insurer that the applicant should have disclosed the $200 veterinary payment in response to a question about “loss history.”