Insurance — Homeowners — Liability — Dog bite — Trial
court erred in concluding that only one “occurrence” under homeowner’s policy
took place when dog bit child and, after releasing child from her mouth, bit
mother, who had run into room in response to child’s screams — Ambiguous
occurrence language in policy construed as meaning each separate dog bite that
resulted in a separate injury to a separate victim was a separate occurrence

CRYSTAL L. MADDOX, Appellant, v. FLORIDA FARM BUREAU GENERAL, ETC., ET AL.,
Appellee. 5th District. Case No. 5D12-3577. Opinion filed January 17, 2014.
Appeal from the Circuit Court for Brevard County, John M. Harris, Judge.
Counsel: Robert J. Telfer, Jr., of Cianfrogna, Telfer, Reda, Faherty &
Anderson, P.A., Titusville, for Appellant. John D. Russell, Alexandra N. Haddad,
and Robin P. Keener, of Burr & Forman LLP, Tampa, for Appellee.

(PALMER, J.) Appellee, Florida Farm Bureau General Insurance Company, has
filed a motion for rehearing. We deny the motion for rehearing, but withdraw our
previous opinion and substitute this corrected opinion in its place.

In this dog bite case, Crystal Maddox appeals the final judgment entered by
the trial court granting declaratory relief to Florida Farm Bureau General
Insurance Company. Determining that the trial court erred in concluding that
only one “occurrence” under a homeowner’s insurance policy took place, we
reverse that portion of the final judgment.

At the time of the dog attack, Maddox, together with her two sons, Logan and
Ivan, lived with her boyfriend, Robert Bullard, and his two dogs, Dixie and
Sugar, in Bullard’s home. As Maddox was dressing Logan, she heard Ivan
screaming. Maddox and Bullard ran to the spare bedroom where they saw Dixie
biting Ivan. They tried to get Dixie to release her grip on Ivan’s face. After
Dixie finally released Ivan’s face from her mouth, she bit Maddox in the face.
Both Ivan and Maddox sustained injuries from the dog bites.

Bullard’s home was insured under a homeowner’s policy issued by Florida Farm
Bureau General Insurance Company. The policy declarations provided Bullard with
personal liability coverage limited to $100,000 for each “occurrence.” The
policy provided, in pertinent part, the following conditions for personal
liability:

The policy contained the following relevant definition:

Maddox filed a complaint against Bullard seeking damages for the injuries she
sustained in the dog attack. Florida Farm Bureau thereafter filed a complaint
for declaratory relief naming both Bullard and Maddox as defendants. The
complaint alleged that Florida Farm Bureau was not liable to pay any damages to
Maddox because, under Bullard’s policy, the damages claimed by Maddox for her
bodily injuries were subject to the same occurrence limit applicable to the
damages for injuries suffered by Ivan, and that the per occurrence limit had
been exhausted because $100,000 had already been paid to Ivan. The complaint
also requested the court to enter an order declaring that the entire dog attack
constituted one occurrence under Bullard’s policy. Bullard and Maddox filed
separate answers asserting that the injuries to Ivan and Maddox were sustained
in separate occurrences.

Florida Farm Bureau and Maddox filed competing motions for summary judgment.
The trial court granted Florida Farm Bureau’s motion, finding the dog bite
injuries were subject to the one occurrence limit in Bullard’s policy.

Maddox appeals, arguing that the trial court erred in granting summary
judgment in favor of Florida Farm Bureau because the dog bites that she and Ivan
sustained were separate occurrences. We agree.

In the absence of explicit policy language to the contrary, the Florida
Supreme Court has adopted the “cause theory,” which looks to the cause of a
party’s injuries for determining the number of “occurrences” under an insurance
policy. See Koikos v. Travelers Ins. Co., 849 So. 2d 263, 269
(Fla. 2003). Here, the cause theory must be applied because Bullard’s policy
contains no explicit contrary language.

Whether the injuries that Maddox and Ivan sustained constitute one occurrence
is controlled by American Indem. Co., v. McQuaig, 435 So. 2d 414 (Fla.
5th DCA 1983), and Koikos v. Travelers Ins. Co., 849 So. 2d 263 (Fla.
2003).

In McQuaig, two deputy sheriffs responded to a residence where three
shots were fired. The first shot struck one officer. The third shot struck
another officer. The second shot struck both officers. In issuing declaratory
relief, as sought by the property owner and his insurer, American Indemnity, the
trial court held that each shotgun blast was a separate occurrence. American
Indemnity appealed arguing that there was only one occurrence for the following
three reasons: (1) one instrumentality of danger — the shotgun — caused the
injuries, (2) the injuries were caused in one specific location, and (3) the
injuries occurred in a short time period of less than two minutes. In rejecting
this argument, our court recognized that, under the cause theory, “the inquiry
is whether ‘there was but one proximate, uninterrupted, and continuing cause
which resulted in all of the injuries and damages.’ ” McQuaig, 435 So. 2d
at 415 (quoting Bartholomew v. Ins. Co. of N. America, 502 F. Supp. 246
(D.R.I. 1980)).

In Koikos, George Koikos rented his restaurant to a fraternity for a
graduation party. During the party, an intruder fired two separate, but nearly
concurrent, rounds. Two guests of the fraternity party were struck by a single
bullet. In addition, three other guests were injured. Koikos filed an action
against its insurer, Travelers Insurance Company (Travelers) seeking declaratory
relief. The case was removed to federal court. The federal district court
granted summary judgment for Travelers, holding that the shooting incident
amounted to one occurrence under the policy. Koikos appealed. The Eleventh
Circuit certified the question to the Florida Supreme Court, and the Court
concluded that each shooting of a separate victim constituted a separate
occurrence. The Court held that “it is the act that causes the damage, which is
neither expected nor intended, from the standpoint of the insured, that
constitutes the ‘occurrence.’ ” The Court also rejected Travelers’ argument that
all of the shots should be considered one occurrence because of the close
proximity in time and space of the individual shots fired, concluding:

Id. at 272.

Because ambiguous provisions must be construed against the insurer, the
occurrence language in the policy must be construed as meaning each
uninterrupted dog attack on a separate victim constitutes an occurrence under
this policy.

While Florida Farm Bureau argues that the “dog attack” constituted one
occurrence, the Koikos Court rejected a similar argument, concluding that
there was no unambiguous language in the policy to put “Koikos on notice that ‘a
series of similar causes’ would be considered one occurrence.” 849 So. 2d at
273. The Court further stated that the policy’s definition of occurrence was
susceptible to two reasonable interpretations (specifically, that the “
‘[o]ccurrence’ can reasonably be stated to refer to the entire shooting spree or
to each separate shot that resulted in a separate injury to a separate
victim.”). Therefore, the policy must be construed in favor of the insured.
See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So. 2d
1072, 1076 (Fla. 1998) (explaining that where policy language is subject to
differing interpretations the language “should be construed liberally in favor
of the insured and strictly against the insurer.”).

Likewise, in this case, it is reasonable to construe the occurrence as the
entire dog attack or as each separate dog bite. Because ambiguous provisions
must be construed against the insurer, the occurrence language in the instant
policy must be construed as meaning each separate dog bite that resulted in a
separate injury to a separate victim was a separate occurrence. For these
reasons, the trial court erred in holding that the injuries which Maddox and
Ivan sustained were not separate occurrences under Bullard’s policy.

In closing, we hold that, with respect to paragraph two of the final judgment
which relates to intentional infliction of emotional distress, the trial court
properly granted declaratory relief for Florida Farm Bureau.

AFFIRMED in part; REVERSED in part; REMANDED. (ORFINGER, J., concurs
specially, with opinion. BERGER, J., concurs in part and dissents in part, with
opinion.)

__________________

(ORFINGER, J., concurring specially with opinion.) I concur with the majority
opinion. I write separately to address the argument made in Judge Berger’s
thoughtful dissent.

The facts of this case are not in dispute. Bullard’s dog, Dixie, attacked
Ivan, a young child. As Bullard and Maddox, Ivan’s mother, tried to get Dixie to
release her grip on Ivan’s face, Dixie attacked Maddox. Both Ivan and Maddox
sustained injuries from the dog bites. The dispute here centers on whether this
constitutes one or two “occurrence(s)” under Florida Farm Bureau’s policy. I
agree that this case is controlled by the supreme court’s decision in Koikos
v. Travelers Insurance Co., 849 So. 2d 263 (Fla. 2003).

In Koikos, two people were shot by an assailant who fired multiple
times in a restaurant. They filed separate lawsuits against Koikos, the
restaurant’s owner, claiming that he negligently failed to provide adequate
security at his restaurant. Koikos, in turn, sued his insurer, Travelers, in a
declaratory judgment action. Koikos argued in favor of finding multiple
occurrences under the policy, contending that the determination of the number of
occurrences should be based on the immediate cause of the injuries — the
gunshots. In contrast, Travelers argued that the focus should be on Koikos’s
underlying negligence — his alleged failure to provide appropriate security.
Koikos, 849 So. 2d at 265, 267. The supreme court held that the proper
focus should be on “the act that causes the damage,” the gunshots, not Koikos’s
failure to protect his patrons. “Focusing on the immediate cause-that is the act
that causes the damage-rather than the underlying tort-that is the insured’s
negligence-is also consistent with the interpretation of other forms of
insurance policies.” Id. at 271. In its opinion, the supreme court agreed
with this Court’s decision in American Indemnity Co. v. McQuaig, 435 So.
2d 414 (Fla. 5th DCA 1983), which held that consistent with the “cause theory,”
an “occurrence” is the immediate injury-producing act and not the underlying
tortious omission. Id. Consequently, “[t]he act which causes the
damage constitutes the occurrence.” Phillips v. Ostrer, 481 So. 2d 1241,
1247 (Fla. 3d DCA 1985); see New Hampshire Ins. Co. v. RLI Ins.
Co., 807 So. 2d 171 (Fla. 3d DCA 2002).

In Koikos, the gunshots, not the negligent security, directly caused
the injury to the plaintiffs. Likewise, in McQuaig, the immediate cause
of the plaintiffs’ injuries were the gunshots, not the shooter’s insanity.
Similarly here, the “immediate cause” of the injuries to Ivan and Maddox was
Dixie’s attacks, not Bullard’s underlying negligence of failing to control his
dog, although that was, no doubt, a factor.

The dissent points to two authorities from other jurisdictions that might, if
controlling, lead us to conclude that only one occurrence occurred here. Indeed,
the state and federal courts have struggled with this issue and reached varying
conclusions on the seemingly straightforward question of what constitutes a
single “occurrence” within the meaning of an insurance policy. See
generally Michael P. Sullivan, Annotation, What Constitutes Single
Accident or Occurrence Within Liability Policy Limiting Insurer’s Liability to a
Specified Amount Per Accident or Occurrence, 64 A.L.R.4th 668 (1988).
Nonetheless, unless our supreme court recedes from Koikos, I believe the
majority opinion is correct.

__________________

(BERGER, J., concurring in part and dissenting in part.) I agree with the
majority that the trial court properly granted declaratory relief for Florida
Farm Bureau on Crystal Maddox’s claim for emotional distress. However, I do not
agree that the injuries sustained by Maddox and her son, during a single dog
attack, constituted two occurrences under Bullard’s homeowners insurance policy.
In my view, the dog attack was the sole “proximate, uninterrupted, and
continuing cause which resulted in all of the injuries and damages” to both
Maddox and her son and, thus, constituted only one occurrence under the policy.
See Am. Indem. Co. v. McQuaig, 435 So. 2d 414, 415 (Fla. 5th DCA
1983).

The Florida Supreme Court has adopted the cause theory when analyzing whether
more than one occurrence has taken place under an insurance policy. See
Koikos v. Travelers Ins. Co., 849 So. 2d 263, 271 (Fla. 2003). Under this
theory, “[i]t is the act that causes the damage, which is neither expected nor
intended from the standpoint of the insured, that constitutes the ‘occurrence.’
” Id.

While the majority is correct that the cause theory must be applied in this
case, I am not convinced that Koikos, or McQuaig upon which it
relies, requires reversal.

Both Koikos and McQuaig involved individual tortfeasors firing
multiple gunshots resulting in injury. In McQuaig, the insured, who
claimed insanity, fired several shotgun blasts within a two-minute period that
injured two people. 435 So. 2d at 415. Utilizing the cause theory, this court
held that each shotgun blast was a separate occurrence. Id. at 416.
However, we noted that the result would have been different if “there was a
single force, [such as one shot striking multiple people] that once set in
motion caused multiple injuries.” Id. at 415.

In Koikos, the shooter was not the insured, but rather a third-party
tortfeasor. 849 So. 2d at 265. Relying on the McQuaig approach, the
Florida Supreme Court concluded:

Id. at 271-72.

Had the injuries to Maddox and her son been caused by the intentional acts of
Bullard or some other individual, I would agree with the majority that, based on
Koikos, each act resulting in injury would constitute a separate
occurrence. However, those are not the facts in this case. Maddox and her son
were not injured by another person, they were injured by a dog, the insured’s
property, during a single, uncontrollable attack. See Helmy v.
Swigert, 662 So. 2d 395 (Fla. 5th DCA 1995) (“Under Florida law, a dog is
considered to be personal property.”). Indeed, the record reflects the dog in
this case was out of control from the time it first bit Maddox’s son, through
the time it bit Maddox in her effort to stop the attack, until the time Maddox
and her son were able to flee to safety. Accordingly, much like the cases
involving out of control motor vehicles, the dog attack in this case was the
single force, that once set in motion caused the injury to Maddox and her son.
See McQuaig, 435 So. 2d at 415; see also Truck Ins.
Exch. v. Rohde, 303 P.2d 659 (Wash. 1956) (injuries to three motorcyclists
from motorist who veered into echelon constituted one occurrence); St.
Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689 (5th Cir. 1955) (truck
colliding with train, damaging sixteen cars belonging to fourteen owners, is one
occurrence).

This view is consistent with the cause theory outlined in Koikos and
McQuaig. Here, the cause of the injury was the dog attack, the effect of
the attack was the injury to Maddox and her son. Since Florida does not follow
the “effect theory,”1 I believe the trial
court was correct in determining the injuries to Maddox and her son were the
result of one occurrence.2

In the corrected opinion, using Koikos and McQuaig as its
guide, the majority concludes that “the occurrence language in the policy must
be construed as meaning each uninterrupted dog attack on a separate victim
constitutes an occurrence under this policy.” To the extent this language was
used in an attempt to limit the number of occurrences in this case to two, it
fails. Under the majority view, the dog attack in this case would result in
three separate occurrences: the bite to Maddox’s son, followed by the bite to
Maddox, followed by a second bite to Maddox’s son. Said another way, if this was
not an uninterrupted dog attack, as I believe the trial judge was correct in
concluding, then the three separate bites to the two victims in this case
constitutes three separate occurrences under the policy. Certainly, this was not
the result intended by the majority. In order for there to be only two
occurrences in this case, one would have to conclude that the attack on Maddox’s
son was uninterrupted. If that is so, then anything that occurred between the
first bite and the second — namely the bite to Maddox — would have to be part
of the uninterrupted attack, yielding only one occurrence. Analogizing
Koikos and McQuaig to the facts in this case, the dog is either
the shooter or the bullet. It cannot be both, which is why I believe the
majority view, while well intended, leads to an illogical result.

The Appellees have requested we certify the following question to the Florida
Supreme Court:

I would grant the request and certify the question.

__________________

1“Under the minority view, or ‘effect’
theory, the courts have held that the ‘per accident’ clause in insurance
policies is to be construed as referring to the result or effect of the accident
on the persons injured or damaged and not as referring to the cause of the
accident.” McQuaig, 435 So. 2d at 415 n.1.

2Based on the specific facts of this case,
I find no ambiguity in the insurance contract.