Lawyer Lloyd

posted July 15th, 2012 by
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by Lloyd Benedict

Dear Lawyer Lloyd,

I am the owner of a well-behaved Chow named “Sandy.” She is 5 years old, and I have owned her since she was a puppy. She has never shown any aggressive be­havior and is just a big softy. In fact, my husband and I have a running joke that if a burglar ever breaks into our house, all Sandy could do is lick him to death. Any­way, we just bought a new house a year or so ago, and our meter is in our back yard where the meter reader cannot see it just by looking over the fence.

 

Since we moved in, the meter reader has had to come into our yard. Sandy hap­pened to be in the yard during a reading, and the meter reader must have spooked her because she chased him out of the yard. Apparently, the meter guy hurt himself getting out of our yard. Now, a year later, it is my un­derstanding that the meter guy filed for workers’ compensation benefits and that the utility company’s insurance is de­manding that we now reimburse them for $15,000 of benefits they paid him. They sent a letter stating that we should contact our homeowner’s insurance to inform them of what is going on. We then contacted our agent and were told by the claim department that all injuries caused by our dog are not covered on our policy.

 

I am so mad that we were never told this when we bought our insurance pol­icy. I am also very upset with the utility company because when we had the utili­ties transferred we informed PSO that we had a “dog out,” so they were well aware that Sandy may occasionally be out back. They could have easily knocked on our door and asked me to put Sandy inside. Now we are facing bankruptcy for some­thing that could have been easily avoid­ed. What can we do?

 

Sincerely,

Sandy’s Bankrupt Parents

 

Dear Bankrupt:

I hear this story all too often, and I can assure you it is not uncommon for many insurance companies to exclude these situations. To make matters worse, in Oklahoma you are strictly liable for anything your pets do that cause bodily harm to a person or damage their property.

 

However, there are a few excep­tions to being strictly responsible. For instance, if your pet harms someone who is unlawfully on your property, then you owe no duty to the trespasser. Also, if your pet was provoked, then you may not be held responsible for any injuries caused. Unfortunately, a meter reader has a lawful right to be on your property at any time; therefore, you would not be able to argue that he was in any way trespassing.

 

Also, the fact that you had advised the utility company that you had a “dog out” may not be strong enough to support that you gave proper no­tice that there is a risk to them if they enter your property without asking you to secure your dog. That is to say, that although Oklahoma recognizes the “assumption of the risk” defense—in a nutshell, this means proving the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it—to success­fully use it, you must prove:

1. The meter reader knew of the riskand appreciated the degree of danger

2. That he had the opportunity toavoid the risk

3. That he acted voluntarily

4. That his action was the direct cause of his injury

However, in your description of the facts, it does not appear that Sandy has any history of being vicious, nor does it sound like the utility company has any knowledge of Sandy being vicious. The fact Sandy is a certain breed is simply not enough to automatically qualify her as a vicious dog even if you disclosed her breed to them.

 

As far as a workers’ compensation in­surance company demanding to be reim­bursed, that is perfectly within their legal rights. Oklahoma law allows the workers’ compensation insurer the right to “subro­gate” (or substitute) the injured worker’s right to sue you to recover whatever they pay, should the meter reader decide not to pursue the lawsuit himself.

 

All said, there is still a puzzling question that may be answered by learning more about the meter reader’s exact version, and not the workers’ compensation in­surer’s version, especially as it pertains to information about whether he provoked Sandy. For example, if Sandy has no his­tory of aggressive behavior, it is possible that the meter reader overreacted when he saw Sandy, presuming she was an ag­gressive Chow. You may need to learn more about how experienced the reader is, and what exactly happened. After all, if the meter reader felt so strongly that Sandy caused his injuries, then why didn’t he contact you first about his injuries in­stead a making a workers’ compensation claim? In any event, you need to consult with a lawyer and discuss the matter in detail before you throw in the towel.

Lloyd

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