Howe v. MMG Ins. Co.

• Court: Superior Court of Maine
• Decided: November 5, 2013
• Docket: YORcv-13-169
• Status: Unpublished

Opinion

STATE OF MAINE SUPERJOR COURT YORK, SS. CIVIL ACTION DOCKET NO. CV-1J-16J

I. Background

Plaintiffs brought this action seeking a declaration by the cqurt of Defendant's duty to

defend Plaintiffs in an action brought against Plaintiff by River Knoll Condominium

Association. The action brought by River Knoll Condominium Association against Plaintiff

seeks injunctive relief for nuisance, nonpayment of assessment, negligence, violation of

condominium rules, and violation of7 M.R.S. 3953. The counts of nuisance, negligence, and

violation of 7 M.R.S. 3953 arise at least in part from the alleged assaults by Plaintiffs dog.

Plaintiffs bought a Homeowner's Insurance policy with Defendant covering the period of

time from March 5, 2013 through March 5, 2014. Plaintiffs sent notice of the suit brought by

River Knoll and a request for Defendant to defend by letter on May 8, 2013. On June 6, 2013,

Defendant wrote back claiming1t did not have a duty to defend and did not intend to do so.

Paintiffs responded on June 27, 2013 asserting a duty to defend and stating their intention to seek

declaratory reliefifDefendants did not defend. Plaintiffs filed a complaint on July 23, 2013.

Plaintiffs now seek Judgment on the pleadings.

II. Duty to Defend

1 In determining whether an insurer has a duty to defend the court compares the insurance

policy to the claims in the underlying complaint Mitchell v. Allstate Ins. Co., 20111\1E 133, ~ 9,

36 A.3d 876.Where there are any possible set of facts that could be proved that would result in

coverage, an insurer must defend. Id. at~ 10. Any ambiguity in the policy is construed against

the insurer. Id. at ~ 11.

Plaintiffs have moved for Judgment on the Pleadings on the basis that the policy includes

coverage for claims brought against Plaintiffs for "damages because of 'bodily injury' or

'property damage' caused by an 'occurrence' to which this coverage applies" (Coverage E,

Section II, A.) The contract defines bodily injury as "bodily harm, sickness or disease including

required care, loss of services and death that results." Property damage is defined as "physical

injury to, destruction of, or loss of use of tangible property." Occurrence is defined as "an

accident, including continuous or repeated exposure to substantially the same general harmful

conditions, which results, during the policy period in : ... 'bodily injury'; or 'property damage'."

Once Defendant determines that the coverage applies, Defendant will "provide a defense at [its]

expense by counsel of [its] choice, even if the suit is groundless, false or fraudulent."

Plaintiffs argue that the River Knoll Complaint seeks damages for bodily injury and

property damage resulting from the dog and therefore Defendant has a duty to defend according

to the contract. Plaintiffs cite to the counts oflnjunctive Relief and Negligence. Defendant

argues that the River Knoll Complaint seeks injunctive relief for damages relating to bodily

injury caused by the dog in the form of removal of the dog from the condominium. Defendant

argues that the contract covers only suits filed seeking money damages, not suits seeking

injunctive relief The contract specifically states that the duty to defend is triggered once claims

2 for "damages because of 'bodily injury' or 'property damage"' have been brought. Therefore,

Defendant argues, Defendant does not have a duty to defend.

Count one of the River Knoll Complaint, alleging nuisance by the dog, seeks the relief of

an order requiring Janet Howe and Rajesh Mandekar to permanently remove their dog from the

premises and pay treble damages pursuant to 7 M.R.S. § 3952(6). The complaint does not

specify the damage caused. Because 7 M.R.S. § 3952 does not provide for a private right of

action, River Knoll Condominium Association is not able to seek damages under that section.

Therefore, the claims concerning Plaintiffs' dog in count one are for only injunctive relief

Defendant does not have a duty to defend against claims for injunctive relief

In count three of the River Knoll Complaint, River Knoll Condominium Association

alleged negligence and seeks damages caused by the purportedly vicious dog. Owning a vicious

dog may be evidence of negligence, however, it is not negligence per se. Castine Energy Const.,

Inc. v. T.T. Dunphy, Inc., 2004 ME 129, ~ 10, 861 A.2d 671 ("violation of a safety statute or

regulation is merely evidence of negligence, not negligence per se.") The River Knoll

Condominium Association did not make any claims of bodily injury or property damage in the

count of Negligence in the Complaint. Because the Complaint by River Knoll Condominium

Association against Plaintiffs for negligence failed to claim damages for bodily injury or

property damages, Defendant does not have a duty to defend.

III. Conclusion

The court enters judgment for Defendant.

John O'Neil, Jr. Justice Superior Court

3 ATTORNEY FOR PLAINTIFF; PATRICK BEDARD LAW OFFICE BEDARD & BOBROW POBOX366 ELIOT ME 03903

ATTORNEY FOR DEFENDANT: LANCE E WALKER NORMAN HANSON & DETROY LLC PO BOX4600 PORTLAND ME 04112