Dog Bite Settlement Case Dealing with the Defendant's Homeowners Insurance Policy*

This case is an appeal from the suit to rescind the insurance. The plaintiffs in this dog bite settlement are Vivienne Kort, mother of Sable Kort. The defendants are Mick and Fancy Melville and Aldrich Mutch.

The plaintiffs are asking for damages for injuries sustained by Sable. In March of 2001, Mick Melville notified his insurance carrier (Quad Mutual) of the incident. Mick stated to them that "the parents of the girl do not claim that they wish to sue us but we wanted to report the incident if they feel otherwise."

In February 2002, the plaintiffs launched this personal injury dog bite settlement action against the defendants.

In June 2002, an issue arose about the dog at the Melville home. Quad Mutual started an action against the Melvilles for rescission of the insurance contract.

During that action the Melville's asked to see the complete Quad Mutual claims file relating to the dog bite settlement issue. Quad Mutual was directed by a compliance order issued on August 12, 2003, to produce the file to all parties.

In March of 2001 Quad Mutual hired Notting Inc. and Mr. Cabri to investigate the dog bite settlement claim. During the investigation they got a written statement from Mick Melville, dated March 14, 2001, saying: "we have lived here as long as our son has owned the dog."

The claims file included a report of the incident by Mr. Cabri plus other interviews conducted by other Notting Inc. investigators. Contrary to Melville's written statements that said they'd had no previous problems with the dog, Melville apparently related an incident where the dog had lunged at someone while they were out walking.

The court stated the claims file is relevant to the recission action because Mr. Melville said in writing the dog was there when he applied for homeowner's insurance - however the application doesn't mention a dog lived there.

The judge said the plaintiffs' claim the dog bite settlement file is relevant because it contains an admission by the Melvilles that the dog had exhibited violent propensities in the past.

In seeking materials such as this, they may only be "obtained by showing that the party seeking them has substantial need of the materials in the preparation of the case and is unable to obtain the equivalent of the materials by other means."

The judge further pointed out that a "liability insurer's claim file ... is conditionally immune from discovery as material prepared for litigation." The "anticipation of litigation" privilege does not extend to documents that are "multi-motivated."

The plaintiffs have not demonstrated that the presumptive conditional privilege generally afforded to insurance claim files should not be applied with equal force to the claims file in this case.

The defendants have not exercised the requisite due diligence in preventing the disclosure of such confidential and privileged materials and the court deems them to have waived said privilege.

All motions by the defendants were denied.