Feral Felines Are Focus of Appellate Court’s Findings on Fracas Over Domestic Animal Exclusion

A few days ago, a family member called to ask me if I was interested in adopting a stray kitten. Hmmm… I had to think about this offer. I have “owned” cats over the years. But cats are quirky. Perhaps that is why memes and videos of domestic cats make up some of the most viewed content on the internet.

My first cat (Hobbes) was an orange tabby whose owner had to give him up. He waited for me at the front door when I came home from work every day. If I didn’t stir for the morning alarm, he bopped me on the head with his paw to make sure I was awake. Once I caught him stealing a hot dog from a boiling pot of water.

The second cat in my life was a huge “talkative” Maine Coon named Ruckus that liked to sleep on my head. Literally.

And then there was a solid black cat (Ruga) who never uttered a sound, learned how to knock on the front door and kitchen window to come inside, and always followed about 25 paces behind me when I walked my dog.

My last cat showed up at my doorstep unannounced and never left. In short order he decided I was put on this Earth to entertain him. He was inconsolable if I didn’t sit on the floor with him for at least 30 minutes when I got home from work.

While I have fond memories of my feline friends, a recent Arizona appellate court decision involves the frolics of feral cats and whether an insurers’ domestic animal exclusion bars coverage for $75,000 worth of property damage caused by the cats.¹

The insureds Joel and Kim Goldberger own residential rental property in Flagstaff, insured by State Farm under a rental dwelling policy. The Goldbergers alleged their tenant “allowed” feral cats to access the property. The cats then caused approximately $75,000 worth of “accidental damage.” The insurer denied coverage, asserting that feral cats are domestic animals within a policy exclusion.

The insureds sued State Farm in an Arizona state court for breach of contract and bad faith. The insurer moved to dismiss the complaint for failure to state a claim, arguing the plain language of the policy barred coverage. The insurer relied on an exclusion which states that accidental losses caused by “birds, vermin, rodents, insect, or domestic animals” are not covered. The superior court granted the motion, ruling that (1) a cat, feral or not, is a domestic animal; (2) the feral cats acted as if they were domesticated; and (3) a reasonably intelligent consumer would understand the exclusion unambiguously applies to damage caused by feral cats.²

The insureds appealed. They argued the motion court erred in dismissing the complaint because the phrase “domestic animals” is reasonably susceptible to differing interpretations, and accordingly, must be construed against the insurer. The insurer disagreed, arguing the exclusion is susceptible to only one reasonable interpretation.

The Court of Appeals reversed the state court’s decision. The appellate court first explained that its review was limited to the complaint and the policy. The court rejected the insurer’s characterization of the feral cats’ behavior or assertions about the tenant’s caretaking beyond the four corners of the complaint.

In its decision, the appellate court recognized the policy did not define “domestic animals”, but addressed the multiple definitions offered by the parties. The insureds argued the term could reasonably refer to either (1) animals belonging to a broader class of animals that have been domesticated at some point in history (the species-based definition) or (2) animals that are, in fact, kept by a person for any of various purposes, including as pets (the individualized definition).³

The insurer argued the phrase can only reasonably refer to dogs and cats, as well as a broader class of animals reasonably expected to be found in or around a dwelling. Regardless of the outer limits of what “domestic animals” means, the insurer asserted it includes all dogs and cats.⁴

The appellate court found the individualized definition is the most reasonable construction because it encourages an insured to prevent damage by controlling an animal that is willingly brought into the home.⁵ The appellate court ultimately ruled the term “domestic animals” is not ambiguous and that the phrase encompasses specific animals that are subject to the care, custody and control of a person.⁶

The court found it relevant that the policy exclusion applied to “domestic animals” – a term referring to a single animal’s present status – as opposed to “domesticated animals” – a term referring to historical facts about the species generally.⁷ Had the insurer intended for the exclusion to apply to all species of animals domesticated at some point in history, it could have written that into the policy. In its decision, the court stated:

If, as State Farm now asserts, the general purpose of the Policy is to provide coverage for accidental losses and the specific purpose of the Exclusion is to except from coverage damages that an insured can easily detect and prevent, then in the abstract, it is difficult to see how excluding damage caused to the dwelling by feral animals—living in the wild with no owner or keeper—would serve that purpose. There is nothing predictable about when such an animal, lacking an owner or keeper and living in nature, might damage a dwelling. And a homeowner has little, if any, meaningful ability to control such animals should they happen to wander onto the property. Of course, if a homeowner endeavors to keep such an animal, then he or she is charged with responsibility for it.⁸

The court further emphasized that even though the tenant allegedly allowed feral cats to access the property, there was not enough information in the complaint to show the tenant exercised sufficient care, custody, and control over the cats to render them “domestic animals.”⁹

Finally, because the facts alleged in the complaint and the reasonable inferences drawn from the complaint were within the coverage grant of the policy, the appellate court ruled the trial court erred in dismissing the complaint.

With this case in mind I have a decision to make about taking in a new kitten. While I sort that decision out for myself, do not hesitate to call me with any property damage issues or questions you might have – feral animal related or otherwise.
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¹ Goldberger v. State Farm Fire and Cas. Co., No. 18-112, 2019 WL 3792803 (Ariz. Ct. App. Aug. 13, 2019).
² Id. at *1.
³ Id. at *2.
⁴ Id.
⁵ Goldberger, 2019 WL 3792803 *5.
⁶ Id. at *7.
⁷ Id. at *4.
⁸ Id. at *5.
⁹ Goldberger, 2019 WL 3792803 at*7.