Like so many of us, I love dogs. I have two and stop to say hello to every one that I meet walking down the street. So it was with a tinge of sadness to see that someone who did a nice thing for a dog was denied coverage for a freak accident. Even the appeals court seemed unhappy that doing a good deed for a dog ended up this way. And maybe that’s why the trial court adopted a very strained argument to find coverage. But the appeals court, recognizing its task, could not find an ambiguity where clearly none existed.

In Alfa (what a coincidence) Mutual Insurance Company v. Thornton, No. 3D13-551 (Fla. Ct. App. Oct. 23, 2013) the Florida appeals court addressed coverage under the following scenario. The insured took her friend and neighbor’s dog for a walk. The dog was on a retractable leash. The insured stopped to speak to another friend when a person on a motor scooter came down the road on a path between the insured and the dog. The insured raised the retractable leash in the hopes that neither the claimant nor the dog would be harmed, but the claimant ran into the leash, fell from the scooter and sustained significant injuries. The claimant asserted a claim against the insured. Her insurer defended under a reservation of rights and filed a declaratory judgment action to establish that the accident was not covered under her homeowner’s policy.

At issue was the applicability of a policy exclusion for bodily injury arising out of the care or custody of animals not owned by the insured. It is hard to imagine that exclusion not applying to an insured that has her neighbor’s dog on a leash. But the trial court found a way around it: “The scenario in this case, in which the injured party appears to have driven a motor scooter in a manner so as to collide with a dog leash being held in the air the court finds that the dog had very little to do with this accident at all. It was merely the coincidental and legally remote source of a component, the leash, which was itself harmless until acted upon by [the Insured], holding it up in the air, and [the Claimant], driving into the leash.” Thus, the trial court held that the accident did not involve injury “arising out of” the insured’s care or custody of an animal she did not own. Again, I love dogs, but it’s hard to believe that conclusion.

And the appeals court certainly did not. After looking at the many meanings of “arising out of,” (such as originating from, having its origin in, having connection with) the court held that the term was not ambiguous here: “The dog extended the leash. No dog, no accident.” But the court left a parting word that the outcome had a sense of unfairness: “We may rue the liability that has attended the Insured’s good deed in taking her neighbor’s dog for a walk, but the exclusion addresses a risk that has been reduced to understandable words and phrases. The excluded risk obviously has some basis in the experience of humans, animals, and actuaries.”