Dog law: A legal salute to man’s best friend

Here in the dog days of summer, it’s only appropriate to take a look at a body of cases, statutes and verdicts & settlements that rightly can be called “Dog Law.”

Dogs have made their mark in the Virginia Code. There are 66 different statutes pertaining to pooches. For example, there are several code sections dealing with larceny of a dog.

Given the affection for man’s best friend, it’s not surprising to find dogs cropping up in domestic relations practice. How so? Well, there have been dog visitation and dog custody cases.

In the criminal law world, dogs assist police officers by sniffing out drugs. And there’s case law on the proper way to qualify a drug dog witness, perhaps the only witnesses allowed that have four legs and a tail.

P.I. lawyers know about dog-bite cases and even dog insurance. Dogs appear in workers’ comp cases. Dogs come to work with their lawyer companions.

No question, it’s a dog’s world. You’ll find all these pooches in the stories that begin below.

What are that hound’s limits?

Nearly every car has an insurance policy behind it. Not so every dog, as personal injury lawyers soon find out.

Sometimes the hunt for insurance to back up a dog bite claim gets complicated. Take the case of Pauline Dabney, for instance.

The 80-year-old Roanoke woman was standing in her own yard one spring day in 2002 when she was set upon by a group of roaming pit bull dogs. Turning to escape, Dabney fell, dislocating her shoulder and breaking her arm in three places. The dogs ran off.

To recover for her injuries, Dabney had to find both the dogs’ owner and applicable insurance coverage. Both tasks have proved daunting.

It was three months before Dabney positively identified the home of the dogs, only to learn that the homeowner recently had died in a drowning accident. To further complicate things, the owner’s house was damaged by fire several months after that.

The fire resolved one issue – an insurance policy was discovered. Providing proper notice of the claim proved to be yet another challenge, however. The insurance company had moved without notice.

Once notified, the insurance company apparently experienced its own delays in deciding what to do.

It was months before the carrier announced it was denying the claim for coverage.

The situation spawned cross-accusations of excessive delay. The insurance company claimed the parties had taken too long to provide notice of the claim. The victim and the owner’s estate claimed the insurance company took too long to deny coverage.

The trial court sided with the insurance company – no coverage, it ruled in a declaratory judgment action after a jury trial on one of the issues.

Meanwhile, the parties had settled on the value of the claim – the estate confessed judgment in the amount of $78,000 in exchange for a promise by the victim to limit collection efforts to insurance proceeds.

The insurance question is now in the hands of the Supreme Court of Virginia, which granted a writ July 29.

Four-legged associates

The bond between humans and dogs is ancient and strong. Lawyers are no less fond of their four legged friends than any other occupation, so stories abound of legal professionals who bring their dogs with them to the office.

“When I’m having a really stressful day, it’s nice to have her calming presence,” said attorney Hillary J. Collyer, speaking about her Shih Tzu, Lady. Lady has been a fixture in Collyer’s Alexandria office for six years now, with no apparent problems.

“She’s so quiet. She never barks. She pretty much sleeps all day,” Collyer said.

Collyer said she’s had no objections from business visitors – quite the opposite, in fact. “People are usually really receptive to her,” she said.

Chatham lawyer H. Victor Millner Jr. and his dogs are a fixture in his county seat town in Pittsylvania County. Millner has two office companions these days, a black lab named “Rachel” and a Lhasa Apso named “Boo.”

Boo has a resting place on a rug next to Millner’s desk, he reports, while Rachel sleeps on a nearby couch. The dogs are not confined to the office, however. Millner said they often accompany him about town. While the post office is off limits to dogs these days, they’re welcome at the court clerk’s office. “It’s a country clerk’s office. They don’t have any problems with that,” Millner said.

Millner’s canine companions are well known in Chatham. When Millner’s longtime companion, black lab “George,” unexpectedly followed him into court one day, the judge remarked, “Your partner just came in.”

George’s death in the early 1990s earned an obituary in the local newspaper, Millner said.

And at the federal courthouse in Roanoke, Senior U.S. District Judge James C. Turk often brings his dachshund, Baby Girl, to the office.

According to reports, Baby Girl won’t stand for being left in chambers when court is in session, so litigants often are startled to find themselves being sniffed in court.

There is no word, however, on whether Baby Girl shares any credibility findings with the judge.

Cats get no respect

It’s a felony to steal a dog in Virginia, but it’s a misdemeanor to steal a cat. You can look it up.
Under Virginia Code § 3.2-6585, all dogs and cats “shall be deemed personal property” and may be “the subject of larceny and malicious or unlawful trespass.”

Then under Virginia Code § 18.2-97, one finds it’s a Class 5 felony to commit larceny of a dog (and a number of farm animals). Cats are nowhere to be found.

The one attempt in recent history to right this apparent wrong (just try telling a cat-owner the distinction above) went nowhere.

In 2008, Del. Jennifer McClellan, D-Richmond, sought to bring cats into parity with dogs. She introduced House Bill 334, which would have added cats to the list of animals in that code section, thereby making it a Class 5 felony to steal a cat.

The bill got sent to committee, where it went through the legislative sausage-wringer. A substitute was born: Okay, it would be a Class 6 felony to steal a cat. The substitute measure passed in the Courts of Justice committee, 20-2. Over in Appropriations, though, it got tabled 13-11.

McClellan declined to re-introduce the cat felony bill in the 2009 or 2010 sessions.

A lucrative practice

A dog bite lawsuit may present complications over and above a typical auto accident claim, but such suits can also produce substantial recoveries.

Insurance companies paid out $412 million for dog bite claims in 2009, according to the Insurance Information Institute. That trade group tracks a steady rise in total claim value for six years, from 2004 to 2009. The total increased 6.4 percent from 2008 to 2009.

From 2003 to 2009, the value of the average paid dog bite claim has increased from around $19,000 to nearly $25,000, according to the insurance statistics.

Proving that your mileage may vary, a Norfolk lawyer recently obtained a $250,000 settlement for a physician whose hand was injured in a dog attack. O.L. “Buzz” Gilbert said the doctor presented a claim for potential future loss of earning capacity as a result of the permanent hand injury.

The defendant had plenty of insurance, but insisted the plaintiff’s claim was barred by contributory negligence, Gilbert said. The doctor allegedly waded in to a battle between two dogs, grabbed his own dog by the collar, and then was bitten by the defendant’s dog.

The $250,000 settlement came during mediation with Virginia Beach Circuit Judge Thomas Shadrick.

That dog CAN hunt…

Man’s best friend is no friend to drug users, and drug-sniffing dogs are commonplace on local police forces.

Such dogs are trained to smell drugs and to alert their uniformed colleagues.

In other words, these dogs are witnesses in criminal investigations.

The Supreme Court of Virginia laid down a standard for qualifying a drug dog last year when it decided Jones v. Commonwealth (VLW 009-6-011).

The court said evidence of a drug dog’s training and experience could establish a foundation, without proof that a police department performed “back checks” to quantify a dog’s number of correct alerts in the field.

According to Fastcase, the Jones opinion has been cited some 36 times since it was handed down in January 2009.

Pretty fancy pooch

Look at Virginia Code §1-510, and you’ll find “Official Emblems and Designations” of the commonwealth.
Among them is the official flower (the American Dogwood), the official insect (the Tiger Swallowtail Butterfly), the official fish (the Brook Trout) and the official beverage (Milk).

And yes, there is an officially designated dog of the commonwealth – the American
Foxhound.

Sounds pretty aristocratic, conjuring visions of the hunt and brandy afterwards in front of a fire.

By the way, tabby-lovers, there is no officially designated cat for the commonwealth. Sorry.

Always cite the “Hamish” Doctrine…

There’s case law in Virginia that if you’re hurt chasing a dog, you can get workers’ comp. Of course, it has to be part of your job to chase dogs that have gotten loose.

A kennel worker in Fairfax County ran after a dog that was being brought to an animal hospital in Fairfax County. The guy was hit by two different cars in traffic along a busy highway near the hospital.
The Court of Appeals, in Town & Country Animal Hospital v. Deardorff, (VLW 008-7-270), affirmed an award of workers’ comp benefits.

The comp carrier tried to argue that the dog hadn’t been handed over to the hospital yet. But the claimant, Deardorff, cited the company policy following what the court called “the Hamish incident.”

Earlier that year, a dog named Hamish had run off in like fashion and, under instructions from their boss, kennel employees had searched for him for hours, including crossing the highway. Management acknowledged that it built good will with customers to help them locate their animals, even if the leash had not exactly changed hands. The claimant was, in his mind, just following the Hamish policy.

The court said under the circumstances of this case, he was fulfilling the duties of his employment when he was hurt. The injury therefore was arising out of and in the course of his employment, those magic words a comp claimant wants to hear.

In the best interests of the…dog?

Dogs are often treated as members of the family and there’s no question that man’s best friends return the affection.

But what happens when man and woman want a divorce? Custody decisions with children often are made with “the best interests of the child” in mind, per the Virginia Code. But canines? That is a tougher call.

Northern Virginia divorce lawyer Joe Condo tells a shaggy dog story of sorts.

It happened the year he served as president of the Virginia State Bar, 2000-2001.

He had filed a number of motions for a client, including one involving, well, visitation with the family dog.

The day of the hearing came. Condo had to be in another courtroom. Condo asked one of his partners to request a continuance from the judge, then-Fairfax Chief Circuit Judge F. Bruce Bach.

The partner came back and said gravely that Bach would not continue the motions, and wanted to see him immediately. Turns out Bach was pulling Condo’s leg, or perhaps his tail.

All concerned, Condo rushed to Bach’s courtroom, where the judge told him, tongue in cheek, that he would not grant the continuance because “he didn’t think the dog should go so long without knowing where it would be living.”

Condo noted that for a while, court personnel and even judges greeted him with cries of “Woof, woof!”
The ultimate outcome in Condo’s case is unknown, but dog custody cases actually have been litigated in two adjoining states.

For example, in Memphis in 2006, a judge faced a couple named John and Lisa who couldn’t agree on possession of a poodle named Zena. In Tennessee, as in Virginia, animals are considered personal property. But Zena was joint property.

The solution? The judge ordered them to split their time with the pooch.

He ruled that John got Zena during the week and Lisa got her on weekends.

However, the judge gave no guidance on how they should handle the holidays or the dog’s birthday.
Then just this past summer in Maryland, a judge faced a divorcing couple named Gayle and Craig who couldn’t agree on how to deal with Lucky, their Lhasa Apso.

In Maryland, if a divorcing couple can’t agree on how to treat jointly owned property, it is sold and the parties split the proceeds.

The judge was reluctant to treat Lucky this way, so he said instead they would split custody. Gayle, who lives in Alexandria, would get Lucky for six months. Then Craig would get the dog for six months.
And Gayle and Craig had to like it. The judge said if either party had objected, he would have given the dog to a trustee who would have held a sale.

Gayle’s lawyers hailed the result. One of them, a guy named – and we are not making this up – Brian M. Barke, said, “I don’t think what [the judge] did is entirely legal, [but] he did the right thing.”