Who Let the Dogs Out? Subrogating Dog Bite Cases

One insurance company – State Farm – has referred to dog bites as a “serious public health problem.” Last year alone, one carrier 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 even some of the smaller dog bite cases – although most dog bite cases aren’t all that small, as it turns out.

According to the Insurance Information Institute, the average cost per claim nationally has risen more than 90 percent from 2003 to 2017, due to increased medical costs as well as the size of settlements, judgments and jury awards given to plaintiffs. 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 the owner’s premises or off 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.

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.