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COA: Insurer has no liability for dog bite injuries

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The Indiana Court of Appeals upheld summary judgment in favor of Auto-Owners Insurance Co. on the issue of whether it had liability to cover the damages sought by the parents of a boy bit by a dog on the insured’s property. The person residing at the home, whose dog bit the boy, was not considered an insured under the policy.

Ginger Hawk owned the house in Gas City and had it insured by Auto-Owners. Michael Carl, Hawk’s cousin, lived in the home. Hawk testified that she would drive by the home a few times a year but never went inside the house. Braydon Didion was allegedly bit in the face by Carl’s dog while Braydon played in the yard in front of the home. Bradyon’s parents sued Carl in July 2008 and added Hawk to the complaint. The Didions received default judgment. Hawk did not notify Auto-Owners about the incident and lawsuit until July 2009 when she first learned of the lawsuit after discovering a lien on the house and then speaking to Carl.

The trial court granted the insurer’s motion for summary judgment finding Carl did not live with Hawk at the time of the incident and he is not an insured under the policy.

The Didions argued that since Carl is a blood relative of Hawk and he “resided” with her in the Gas City house, he is an “insured” under the policy.

“… we do not believe that any ordinary policyholder of reasonable intelligence would understand an absentee landlord who does no more than drive by a house every so often to ‘reside’ in that house,” Judge Cale Bradford wrote in David Didion and Kristi Didion as Parents and Legal Guardians of Brayden Didion v. Auto-Owners Insurance Company, 27A02-1303-PL-232.

The majority also addressed whether Auto-Owners received adequate notice of the loss, which it affirmed it did not.

“We have little trouble concluding that the length of delay in this case was unreasonable. The facts of this case amply support our conclusion: in the over one year that passed between the Loss and Ginger’s notification to her agent, the Didions’ lawsuit had not only been filed but had already proceeded to default judgment regarding liability and damages,” Bradford wrote.

Judge L. Mark Bailey wrote in his concurring opinion that the appeals court should not have looked at the question of the timeliness of the notice because the lack of coverage inquiry is dispositive.
 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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