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Schultz v. Tilley

Appeals Court of Massachusetts, Suffolk

May 18, 2017


          Heard: December 15, 2016.

         Civil action commenced in the Superior Court Department on July 30, 2013.

         The case was heard by Heidi E. Brieger, J., and entry of separate and final judgment was ordered by her.

          James T. Scamby for the plaintiff.

          Jeffrey T. Scuteri for Christopher Tilley & another.

          Peter C. Kober for Vermont Mutual Insurance Company.

          Present: Cypher, Maldonado, & Blake, JJ. [2]

          BLAKE, J.

         The insureds, Angela Tilley and Christopher Tilley, [3] owned a dog that caused property damage and injury to 2 the plaintiff, Edith Schultz. Schultz filed suit against the Tilleys and the defendant, Vermont Mutual Insurance Company (Vermont Mutual). Vermont Mutual counterclaimed and cross-claimed, seeking a declaration that the homeowner's policy at issue was void as a result of the insureds' material misrepresentations on their application for insurance as to the dog's bite history and their history of loss. Following a bench trial on the issue of coverage only, a judge of the Superior Court agreed with Vermont Mutual on the bite history issue, and accordingly dismissed Schultz's complaint against Vermont Mutual. The Tilleys and Schultz (collectively, the appellants) now jointly appeal.


         We summarize the facts as found by the judge, supplemented by undisputed information from the record, with certain facts reserved for later discussion. On December 30, 2010, Christopher visited the Tarpey Insurance Group (Tarpey) in Peabody for the purpose of obtaining homeowner's insurance for his residence in Peabody. With the assistance of Elaine Faithful, one of Tarpey's customer service representatives, Christopher completed an application for insurance with Vermont Mutual. On the application, Christopher responded "Yes" to the question, "Are there any animals or exotic pets kept on premises?" As a follow-up, the application states, in parentheses, "Note breed and bite history." Under the "Remarks" section of the application, Faithful noted, "American bull dog -- no biting incidents." Another section of the application was entitled "Loss History" and asked, "Any losses, whether or not paid by insurance, during the last 6 years, at this or at any other location?" Christopher responded "No" and placed his initials adjacent to his response. At the bottom of the application, just above the signature line, it states: "I have read the above application and any attachments. I declare that the information in them is true, complete and correct to the best of my knowledge and belief." Christopher signed and dated the application. Vermont Mutual subsequently issued a homeowner's policy to the Tilleys.

         On March 18, 2011, Schultz was walking her two Yorkshire Terriers on Harrison Avenue in Peabody. As she was walking near the Tilleys' home, their American Bulldog, Bocephus, ran out and attacked Schultz's dogs. Before Angela and other neighbors could restrain Bocephus, he injured Shultz's dogs. In attempting to protect her dogs from the attack, Schultz suffered a broken arm, a laceration to her face, and scrapes to her knees, elbows, and ankles. On March 21, 2011, Christopher reported the incident to Tarpey, who in turn notified Vermont Mutual.

         Following notification of the claim, Vermont Mutual commenced an investigation. During that process, it learned that Bocephus had bitten two other dogs prior to the date of Christopher's insurance application. In particular, Vermont Mutual learned that on November 12, 2009, Bocephus bit a dog named Buddy, who was walking near the Tilleys' house. Buddy's owner filed a police report and spoke with Peabody's animal control officer. Buddy's owner also incurred a $200 veterinarian bill as a result of the bite, which the Tilleys voluntarily paid. In July, 2010, Bocephus bit another dog, Bruno, who also was walking near the Tilleys' house. After confirming that Bocephus was current on his shots, Bruno's owner took no further action. At trial, Christopher acknowledged that he was aware of both of these incidents at the time he applied for insurance in December, 2010.

         On July 30, 2013, Schultz filed a complaint in the Superior Court alleging strict liability and negligence on the part of the Tilleys (counts I-IV), and unfair claim settlement practices, in violation of G. L. c. 176D, on the part of Vermont Mutual (count V). On August 26, 2013, Vermont Mutual filed its answer, cross claim, and counterclaim, seeking a declaration against Schultz and the Tilleys that the policy is void and does not afford coverage. In July, 2014, the case was tried on the issue of coverage only. During the trial, the parties ...

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