It’s a great trivia question. Which state has the most dog bite claims? The answer probably won’t surprise you—California, with 2,103 insurance claims in 2020, followed by Florida, Texas, New York, Pennsylvania, Ohio, and Illinois. What may surprise you, however, is that as recently as 2016, despite being 7th on the bite list, the state with the highest amount paid out in settlement of dog bite claims was Illinois. In 2016, State Farm alone paid out $14 million for Illinois dog-related claims, second only to California. Perhaps this is what motivated State Farm to label dog bites as a “serious public health problem.” In 2018 alone, State Farm paid $90 million in claims on roughly 3,500 dog bite incidents. According to the Insurance Information Institute, dog bites and other dog-related injuries accounted for an astonishing one-third (1/3) of all homeowner’s liability claim dollars paid out in 2017, costing almost $700 million. This isn’t chump change any more, and subrogation professionals need to take a serious look at pursuing subrogation in all cases involving dog bites.
With Illinois dog bite claims on the rise, the Illinois legislature decided to act. On August 9, 2021, Governor J.B. Pritzker signed Senate Bill 1672, amending 510 I.L.C.S. § 5/16, and mandating effective January 1, 2022, that insurance companies offering liability insurance for renter’s or homeowner’s insurance must report all dog-related claims to the state for the next two years.
It seems that breed profiling, like racial profiling, is a no-no. SB 1672—sponsored by Sen. Linda Holmes (D-Aurora)—began as a bill which sought to (wait for it) prohibit insurance companies from discriminating against policyholders based on the breed of dog they own. Spirited by the battle cry that “discrimination in all forms is suspect”—and ignoring for the moment that the very science of underwriting is at its essence discrimination based on risk factors such as driving record, gender, age, marital status, vehicle make and model, and dozens of other factors—Senator Holmes sought to prohibit the practice of discriminating by breed. But the bill met stiff opposition, so the resulting legislation now provides for a two (2) year period in which insurance companies must report dog-related claims, including information such as:
- The breed involved and how the breed was identified (and if it was a visual identification, who made the identification and a list of their qualifications), as well as the dog’s gender and whether it has been sterilized.
- Where the dog was sourced (a pet store, breeder, shelter, rescue, friend, stray, etc.)
- Whether the dog was being teased or harassed, or otherwise provoked.
- Where the incident took place and the type of injury that occurred.
- Any training, previous behavior issues, dangerous dog status, etc. applied to the dog.
According to the American Kennel Club website, the reporting period will begin on January 1, 2022, and the reports will be available via the Illinois Department of Insurance website. The information will be updated online each July through July 1, 2024. Dog lovers will argue that the temperament of the dog depends on the owner and the environment in which the dog is raised; not the breed. The Illinois legislature wants to know for sure. The information gleaned from this two-year study will undoubtedly be used as an underwriting tool in other states and could affect homeowners’ premiums depending on the breed of dog the insured owns.
While the Illinois dog bite database is intended to provide information and statistics regarding the dog bite tendencies of various breeds of dog, one significant byproduct of the initiative will be a healthy database for subrogation counsel to draw from when attempting to subrogate such claims, and trial lawyers will use it as evidence for punitive damages when an owner or a particular dog is tied to multiple dog attacks. Texas, for example, provides that a dog owner will be liable for a dog bite only if the victim (or subrogated insurance company) can prove that the owner had knowledge of the dog’s dangerous propensities. This has always been difficult to do, but if states start requiring data bases of dog bite claims, it could provide a health and reliable source for such proof.
In 2015, the Centers for Disease Control and Prevention indicated approximately 4.5 million dog bites occur each year in the United States. Nearly 1 out of 5 bites becomes infected. And in virtually every case, there is subrogation potential which needs to be looked into. The subrogation professional must be familiar with the various dog bite laws found in each state and be able to apply that law to the facts in first-party dog bite claims with potential subrogation.
Dog bite law is a unique combination of city and county ordinances, state statutory law, state case law, and common law. The law varies from state to state. Generally, if the dog owner knows that the dog has exhibited a tendency or intention to someday bite a person, liability can attach. This is known as “scienter” (knowledge or knowing) and is referred to as the “One Bite Rule”. Most states hold a dog owner responsible for negligence that results in any injury caused by a dog. This can take the form of general negligence or negligence per se (violation of a statute). Sometimes, the liability depends on whether the dog bite occurred on or off the owner’s premises. Some states apply the doctrine of premises liability when the victim is harmed on the dog owner’s property. Premises liability is a specific area of law that governs liability involving owners of property and landlords.
Illinois, for example, provides that an owner will be liable for all injuries, even if not caused by a bite, absent provocation, or trespass by the victim. The Illinois statute is found at 510 I.L.C.S. 5/16 § 16, and currently reads:
- 16. Animal attacks or injuries. If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.
Other states base liability on statutes which create liability in the absence of scienter, negligence, or intentional behavior. These are referred to as “statutory strict liability states” and vary from state to state. They sometimes hold the owner liability automatically if their dog bites somebody. In “strict liability” states, the dog does not get one free bite as they do in states which adhere to the One Bite Rule.
Still other states complicate matters by mixing and matching their laws. Some of these complicated dog bite statutes impose strict liability under limited circumstances or for limited types of losses, while relying more heavily on the One Bite Rule. The states having statutes which incorporate the One Bite Rule are referred to as “mixed dog bite law states” or simply “mixed states”. For example, New York imposes strict liability only for a bite victim’s medical bills. To recover other elements of damages, he has to meet one of the other burdens discussed above. States often provide certain exceptions to liability, including if the victim is a trespasser, veterinarian, was committing a felony, assumed the risk, or if the dog was provoked by physical abuse or was a police dog.
Matthiesen, Wickert & Lehrer, S.C. handles subrogation claims in all 50 states for both health insurance and workers’ compensation cases – the two most likely insurance lines for dog bite subrogation. To assist our clients in understanding the law they must subrogate under, we have compiled a chart which provides a quick overview of the dog bite in all 50 states.
If you have any questions regarding the subrogation of dog bite claims, contact Lee Wickert at email@example.com.