Dog-bitten Toddler was an “Insured” Subject to Policy Exclusion for Insured-Against-Insured Claims
U.S. District Court, Colorado: Two-and-a-half-year-old toddler D.L. was with her mother, Haley Davis, at the home of her maternal grandparents, Defendants Devin and Cynthia Davis, when she was bitten in the face by a dog, causing significant injuries and requiring emergency surgery on her right cheek. D.L.’s father, Defendant Brad Larsen, made a claim on behalf of D.L. against the grandparents. Plaintiff State Farm, the carrier for the grandparents’ homeowners’ insurance policy, sought a declaratory judgment that there was no coverage under the policy for D.L.’s injuries from the dog bite incident.
On cross-motions for summary judgment, the Court noted that the critical question was whether, under the terms of the grandparents’ homeowners’
policy, D.L. qualified as an “insured.” If so, there would be no coverage under the policy because it excludes insured-against-insured claims. The policy contained a provision excluding from coverage claims based upon bodily injury to an “insured,” defined under the policy to include the named insured, relatives of the named insured, and any other person under the age of 21 in the care of a named insured or relative of a named insured. The policy defined “relative” as “any person related to [the named insured] by blood, adoption, marriage [or substantially similar legal relationship], and who resides primarily with you.” The policy defined “bodily injury” as “physical injury, sickness, or disease to a person. This includes required care, loss of services, and death resulting therefrom.” The term “in the care of” was not defined in the policy.
Notably, D.L.’s parents had ceased living together as a family some time before the dog bite incident, but shared custody and divided parenting time. At the time of the incident, D.L. was staying with Haley, who was living with her parents, the policyholders, and who was “taking care of” D.L. while they two of them were home alone that day. Despite Haley’s supervision, no one was in the room with D.L. at the time of the attack—Haley was in another room, an estimated 25 feet away from her daughter.
State Farm argued that D.L. was “in the care of” her mother, who is a relative of the policyholders, therefore D.L. was herself an “insured” and specifically excluded from coverage for bodily injury claims against the policyholders. D.L.’s father argued that “in the care of” was ambiguous and susceptible to multiple meanings, including physical presence or direct “eyes-on” supervision, and that ambiguities in insurance policies should be construed against the insurer and accordingly, the Court should conclude that D.L. was not in anyone’s care at the time of the incident, as she was alone in the room.
The Court rejected D.L.’s father’s argument, concluding that it would make little sense for the policy to deem D.L. an “insured” while Haley was in the room or looking directly at her, but not when Haley stepped out of the room or even briefly turned her back to the toddler. Noting that at least one other court, in an Oregon case, has determined the phrase “in your care” to be ambiguous, the Court nonetheless was able to distinguish that case because while many facts were similar between the two cases, unlike in the Oregon case, it was clear here that Haley Davis was residing with her parents and was therefore an “insured” under the terms of the policy. Furthermore, using the definition of “in your care” articulated in the Oregon case, D.L. was in Haley Davis’ “care” at the time of the incident.
Therefore, under any reasonable interpretation, and based on the undisputed facts presented, the Court concluded that at the time of the incident D.L. was “in the care of” her mother, who was an “insured” under the terms of the policy, and therefore the exclusion applied. The federal magistrate judge recommended granting State Farm’s Motion for Summary Judgment and denying Defendant Brad Larsen’s, and entering declaratory judgment in State Farm’s favor that Defendants Brad Larsen and D.L. were not entitled to any benefits under the policy, that Defendants Devin and Cynthia Davis were not entitled to liability coverage for claims of bodily injury to D.L., and that State Farm was not required to make any payments to or on behalf of Defendants as a result of the dog bite incident.
State Farm Fire and Casualty Company v. Larsen Next Friend of Davis, No. 19-CV-03578-RM-NRN, 2020 WL 6870847 (D. Colo., Oct. 21, 2020) (not yet released for publication in the permanent law reports).