The Fifth District Court of Appeal Addresses Number of Occurrences in Dog Bite Case
Maddox v. Florida Farm Bureau General, Case No. 5D12-3577; 2013 WL 4859249 (Fla. 5th DCA September 13, 2013).
In Maddox v. Florida Farm Bureau General, the Fifth District addressed how many “occurrences” there were under an insured’s homeowner’s policy where the insured’s dog bit his girlfriend’s minor child in the face, and then bit the girlfriend after releasing the minor child from his grip. The policy contained a $100,000 “per occurrence limit” and defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results . . . in bodily injury.” The trial court found that the dog bite injuries were subject to the one occurrence limit. On appeal, the Fifth District reversed, concluding that the dog bites sustained by the minor and his mother were separate occurrences, resulting in $200,000 coverage available under the policy.
In so doing, the Fifth District relied upon the Florida Supreme Court’s decision in Koikos v. Travelers Ins. Co., 849 So. 2d 269 (Fla. 2003), in which the Court adopted the “cause theory” in determining the number of occurrences. Under Florida’s purported “cause theory” courts are to look to the cause of the injuries, such that “the inquiry is whether there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries or damages.” In adopting the “cause theory” in Koikos, the Court expressly held that Florida courts should not look at the number of injuries or victims in determining the number of occurrences, but look to the “independent immediate acts that gave rise to the injuries” and the insured’s liability. Koikos, 849 So. 2d at 273. The Court in Koikos then concluded that each bullet that injured the plaintiffs determined the number of occurrences, rather that the insured’s alleged conduct in providing negligent security at the club the plaintiffs were shot.
Based upon that holding, the Fifth District in Maddox concluded:
In this case, the immediate injury-producing acts were the dog bites, and the dog bite that inflicted the injuries to Maddox was not the same dog bite that inflicted the injuries to Ivan. Therefore, each dog bite was a separate occurrence.
As a result, the court in Maddox found that “the trial court erred in holding that the injuries which Maddox and Ivan sustained were not separate occurrences” under the policy.
Notably, however, Maddox was a 2-1 decision. The dissent in Maddox, applying the same “cause theory” test announced in Koikos, agreed with the trial court, concluding that in his view the dog attack was one occurrence, since the out-of-control dog was the single cause of all of the injuries, analogizing the dog to an out-of-control motor vehicle.
The disagreement between the majority and dissent, as well as the trial court, shows that four judges came to different conclusions despite applying the same test. In our view, this further shows that the test is unworkable and does not lead to predictable results. Calling it the “cause theory” is a misnomer when the focus is on conduct by someone or something other than the insured. The farther away the analysis gets from the insured’s conduct, the analysis instead focuses on the effects, which is supposed to be impermissible. This decision should invite re-examination of Koikos, or at least a restatement of the test to better tie the cause to the insured’s conduct. Also insurers should consider changing the policy definition of “occurrence” as suggested by the Court in Koikos, which definition was addressed in SR International Business Insurance Co. v. World Trade Center Properties LLC, 222 F.Supp.2d 385 (S.D.N.Y. 2002).