An Arizona appellate court, reversing a trial court’s decision, has ruled that a domestic animal exclusion in an insurance policy did not preclude coverage of a claim for property damage caused by feral cats.
The Case
Joel and Kim Goldberger asserted that a tenant who rented property they owned in Flagstaff “allowed” feral cats “to access” the property and that the cats then caused approximately $75,000 of “accidental damage.”
The Goldbergers filed a claim under the rental dwelling insurance policy they had acquired from State Farm Fire and Casualty Company.
State Farm denied the claim, asserting “feral cats are domestic animals and therefore the damage was not covered under the [p]olicy.”
The Goldbergers sued, and State Farm moved to dismiss.
The trial court granted State Farm’s motion, and the Goldbergers appealed.
The State Farm Policy
The State Farm policy excluded coverage for accidental losses caused by:
birds, vermin, rodents, insects or domestic animals
The Appellate Court’s Decision
The appellate court reversed.
In its decision, the appellate court explained that its review was limited to the policy and the complaint, which alleged that the tenant “allowed” the feral cats “to access“ the property. The appellate court specifically refused to consider State Farm’s arguments that that the cats were peaceably living in the home with the tenant.
The appellate court then ruled that the term “domestic animals” as used in the policy ultimately was “not ambiguous” and that it encompassed “specific animals” that were “subject to the care, custody, and control of a person.”
The appellate court pointed out that the Goldbergers’ complaint alleged that the cats that damaged their dwelling were “feral” and were “allowed to access the property by their tenant.” On this alone, the appellate court continued, and resolving all reasonable inferences in the Goldbergers’ favor, it had to “presume that the cats were feral, meaning they had no owner or keeper and were living in nature.”
The allegation that the tenant allowed the cats to access the property did “not show the tenant exercised sufficient care, custody, and control over the cats” so as to render them “domestic animals,” the appellate court said.
Therefore, because the facts alleged in the complaint and the reasonable inferences drawn from the complaint were within the policy’s coverage, the trial court erred in dismissing the complaint, the appellate court concluded.
The case is Goldberger v. State Farm Fire and Casualty Co., No. 1 CA-CV 18-0112 (Ariz. Ct. App. Aug. 13, 2019). Attorneys involved include: Hunter Humphrey & Yavitz PLC, Phoenix, By Randall S. Yavitz, Isabel M. Humphrey, Counsel for Plaintiffs/Appellants. Broening Oberg Woods & Wilson PC, Phoenix, By Robert T. Sullivan, John C. Quinn, Alicyn M. Freeman, Counsel for Defendant/Appellee.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].