TEXAS -- In the case of Mann vs. Vences et. al, Cause No. 2011-51433 in the 189th Judicial District Court, attorney Paul H. Cannon of Simmons and Fletcher fought to achieve a unique and creative result for his client, Wendy Mann who was attacked by a pack of pit bulls owned by a neighbor.
Ms. Mann was walking down the street with a friend. On Mrs. Mann's shoulders rode her friend's two-year old daughter.
As the two passed an iron gate surrounding a neighbor's yard, the neighbor's son opened the electronic gate and backed out. As he did, four pit bulls ran out of the yard and attacked her, with one biting onto each arm and one onto each leg. Evidence revealed that the dogs had attacked another person only three months before and were still being kept in the yard where they had unrestrained access each time the gate opened.
After the four dogs were put down, the homeowners Francisco and Elizabeth Vences [promptly went and got themselves another pit bull] and kept it in the same yard with open access to the street each time they opened their gate.
Prior to litigation, the insurance company refused to pay the policy limits. Cannon sent a time-limited demand known as a Stowers Demand giving the insurance company a limited time to pay the full policy. When an insurance company fails to timely pay, any excess judgment can become enforceable against the insurance company. However, in this case, the policy excluded coverage for punitive damages.
The medical bills were under $5,000; however, she sustained scarring to both arms and legs in addition to the mental terror of fearing for her life as the dogs attacked. The homeowners' insurance policy declined to pay the limits even though they provided only $100,000.
At mediation, Cannon and his client made a written final offer whereby they would demand not only the full policy limits but also a contractual agreement wherein the defendants agreed to relocate their pit bull and to never again keep a Pit Bull, Presa Canario, Chow, Rottweiler or Doberman Pinscher on their property subject to a $100 per day penalty if they breeched the obligation.
Faced with punitive damages exposure to the insureds and potential excess liability to the insurer, they agreed to the settlement.
Although the homeowner's insurance policy ultimately paid their full limits, to Paul's client, money was not enough. Because she was forced to hire a lawyer and litigate the case, there was a recover cost. Out of the liability settlement proceeds, Mrs. Mann paid attorney fees of $40,000 and litigation expenses of 4,771.36. Under Texas law, attorney fees cannot be separately recovered in a personal injury lawsuit so it comes out of the injured party's compensation.
But more important to her than just the policy proceeds, Mrs. Mann did not want to have to fear walking down her own street and being attacked by vicious dogs. The additional provisions of the settlement agreement achieved that goal for her.
This case is an example of a creative way a personal injury lawyer can use the punitive damage exclusion in a homeowner's policy against the defense in a homeowner's claim. The absence of coverage is what created the risk that made these homeowners agree to give up dangerous dog ownership.
(MarketWatch - July 24, 2012)
