In a Cape Cod dog bite injury lawsuit, there can be a wide variety of issues. As always, the burden of proof lies on the party asserting the claim.
Insurance coverage can be an issue in some cases. Depending on the facts, it may be the plaintiff, or it may be the defendant who is seeking a declaration from the court to the effect that the plaintiff’s claim (if it is ultimately proven) is covered by a particular policy of insurance.
As in other cases in which an insurance company seeks to avoid liability for one reason or the other, proving that there is insurance coverage can be just as difficult a battle – if not even more so – than proving the elements of the underlying case.
Facts of the Case
In a recent case, the plaintiff was a woman who originally filed suit against a homeowner and her sister back in 2004, seeking monetary compensation for injuries allegedly caused by two pit pulls owned by the homeowner’s nephew. The homeowner’s liability insurance company defended her in that action. Ultimately, the suit was terminated by stipulations of dismissal, with no payment being made to the plaintiff by the homeowner or her insurance company.
In 2014, the plaintiff filed suit against the nephew, seeking compensation for the same injuries as in the 2004 suit. (No explanation was given as to the long delay.) The second suit asserted claims under Massachusetts General Laws ch. 140, § 155 and for negligence. The plaintiff notified the homeowner’s insurance company of her suit, asserting that the company owed the nephew a defense and indemnification. The company disagreed and took no action to defend the nephew; and a default judgment was entered in the plaintiff’s favor.
In yet a third suit, the plaintiff (who, in exchange for an agreement not to pursue her judgment against the nephew, had been assigned the nephew’s rights under the homeowner’s insurance policy) filed suit against the insurance company, asserting claims for breach of contract, as well as claims under Massachusetts General Laws ch. 175, § 112, 113; Massachusetts General Laws ch. 176 D, and Massachusetts General Laws ch. 93A. The trial court entered summary judgment in the insurance company’s favor, and the plaintiff appealed.
Outcome of the Issues
On appeal, the Commonwealth of Massachusetts Appeals Court phrased the primary issue as, “whether [the nephew] was an ‘insured’ under the homeowner’s policy.” The court first noted that the policy is question defined an “insured” as a resident of the homeowner’s household who was a relative. The court went on to observe that insured premises was a two-family house, with each residential unit accessed by a separate door. The homeowner and her children lived upstairs, while the homeowner’s sister and two daughters lived downstairs. During the time that he resided in the dwelling, the nephew resided primarily in the sister’s household, not the homeowner’s household. Notably, however, the nephew did use a third-floor bedroom in the homeowner’s part of the dwelling to entertain guests, store clothes, and play music.
Under these circumstances, the appellate court opined that the plaintiff had failed to raise a triable issue of fact as to whether the nephew was a resident of the homeowner’s household (and thus an “insured” under the policy of insurance issued by the defendant). Thus, summary judgment to the defendant was held to have been proper.
Call a Massachusetts Injury Lawyer
Taking prompt legal action is important when asserting one’s right to pursue monetary compensation following a personal injury accident or a loved one’s wrongful death. To schedule an appointment to discuss a possible claim with an experienced Cape Cod dog bite injury attorney, call the Law Offices of John C. Manoog III, today at 888-262-6664. Remember, the longer you wait to assert your claim, the more difficult your case is likely to be; claims not filed within the statute of limitations are almost always dismissed.