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Dog injury case with a twist in the tale

Copyright © 2017 Albuquerque Journal

Injuries caused by a “bounding” dog in Santa Fe 10 years ago spun out into litigation that ended only within the past two weeks, months after the New Mexico Court of Appeals decided that a tenant who merely watered plants for free was in fact a “real estate manager” covered by the landlord’s insurance policy.

One twist in the long-running case came when the PNM meter-reader hurt by a dog teamed up with the canine’s owner.

David Tapia, the meter-reader, and dog owner Jenny Dove initially were on opposite sides of Tapia’s lawsuit over his injuries. But they later joined forces to file a complaint against State Farm after the insurance company refused to cover Tapia’s damages.

In the end, a three-judge panel of the state Court of Appeals reversed a Santa Fe District Court judge’s decision and ruled that Dove should be considered a real estate manager for the property owner and therefore be covered under the insurance policy – even though Dove was never paid for watering plants.

The case started when Tapia was checking meters on Maclovia Street in Santa Fe on Aug. 24, 2007, and noticed a woman, later identified as Dove, watering plants in a common yard on property shared by several tenants, according to a lawsuit Tapia filed in 2010.

He then saw Dove’s 150-pound bull mastiff come “bounding” toward him.

“The dog jumped on David, twice, attempting to bite his face and neck,” the lawsuit states. The force of the second jump caused Tapia to fall to the ground. He reached out to break his fall and heard an “audible popping sound” after landing on his left arm, according to the lawsuit.

Tapia filed the suit against Dove and property owner Betsy Joyce, who was then living in California, seeking damages for medical bills and lost wages. The Court of Appeals decision, filed in March, doesn’t specify what part of Tapia’s body was hurt when the “popping sound” was heard.

Tapia and Dove entered a settlement in May 2012 after Tapia’s damages were determined to be $107,000.

But State Farm, the insurer covering the property for landlord Joyce, had breached its duty to cover Dove. The insurer argued that Joyce did not own the dog and was therefore not responsible for injuries it caused.

State Farm also argued that Dove was not a “real estate manager (and thereby covered by the policy) based on her limited duties.” One problem was that “real estate manager” was not defined in the policy, the Court of Appeals’ ruling states.

Joyce had asked Dove to water “and make sure things stayed alive,” according to the appeals court account.

Tapia and Dove filed a joint third-party complaint against State Farm in 2015, asking District Court Judge David Thomson to order the company to pay for Tapia’s damages.

Thomson eventually ruled in favor of State Farm. But the appeals court panel, in a decision written by Judge J. Miles Hanisee, reversed Thomson’s decision in March and found that Dove was in fact a property manager because Joyce had asked her to water plants in the common area.

“The district court erred in granting summary judgment to Defendant (State Farm),” Hanisee wrote in the decision. “We reverse and remand for the district court to enter judgement consistent with our ruling.”

Judge Hanisee wrote that Joyce’s insurance policy does not define the term “real estate manager.” State Farm also never disputed that Dove was watering plants in a shared area during the attack and didn’t bother to look into whether those actions allowed her to be covered by the policy.

State Farms’ “knowledge that Dove was watering the common front yard at the time of the incident should, at the very least, have reasonably prompted Defendant to investigate whether Dove’s activities clearly placed her afield of coverage owed pursuant to Joyce’s insurance policy,” Hanisee wrote.

“These alleged or discoverable facts all tend to suggest that Dove was arguably, if not definitively, acting as Joyce’s real estate manager … and, therefore, covered as an ‘insured’ under the policy,” the ruling states.

“Considered in sum, the asserted facts suggest that Dove could very well have been acting as Joyce’s real estate manager when Tapia was injured.”

The appeals court ruling led to a settlement of the case. Tapia’s lawsuit was closed recently, on Nov. 21, because “all matters in controversy have been fully settled and compromised,” according to district court documents.

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