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American Strategic Insurance Corporation v. Clark

Court of Appeals of Arizona, First Division

December 19, 2013

AMERICAN STRATEGIC INSURANCE CORPORATION, a Florida Corporation, Plaintiff/Appellee,
v.
EMILEIGH CLARK and TYLER CLARK, Husband and Wife, Defendants/Appellants.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Maricopa County No. CV2012-000684 The Honorable John Christian Rea, Judge

Koeller Nebeker Carlson & Haluck LLP, Phoenix By William A. Nebeker, Zahnie L. Soe Myint, and John H. Cline Counsel for Plaintiff/Appellee ASI

Jardine Baker Hickman & Houston, Phoenix By Michael Warzynski Counsel for Defendants/Appellants Clark

Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.

MEMORANDUM DECISION

BROWN, Judge:

¶1 Emileigh Clark appeals the trial court's order granting summary judgment in favor of American Strategic Insurance Corporation ("ASI"). For the following reasons, we affirm.

Background

¶2 The pertinent facts, which the parties do not dispute for purposes of resolving this appeal, are as follows. On the morning of January 31, 2011, Ryan Masi was walking his two dogs, a Schnauzer and a tan Pit Bull. At some point, Clark was awakened when she heard someone yelling from behind her house. Clark observed that a brown Pit Bull was fighting with the tan Pit Bull Masi had on a leash. Clark called out to Masi and he asked for help. Clark jumped over her fence and grabbed the unleashed brown Pit Bull, separating it from the tan Pit Bull and thus ending the fight.

¶3 Moments later, however, the tan Pit Bull escaped from Masi's control and severely bit Clark's hand. After Masi was able to get his Pit Bull under control, Clark asked him several times if his dog had its shots. Masi responded that he would go put his dogs away and then come back. Clark tried to persuade Masi to stay at the scene but he left and did not return.

¶4 Clark received medical attention for the wound she sustained from dog bite. Because Masi did disclose whether the dog had its shots, Clark underwent treatment to prevent her from contracting rabies. Consequently, Clark developed a "serious and debilitating infection that could have been more aptly treated but for . . . Masi's disappearance."

¶5 Clark sued Masi for personal injuries she suffered, alleging Masi acted negligently by (1) failing to control his dog and (2) failing to render aid by informing Clark whether the dog had been properly vaccinated for rabies. Clark alleged Masi's failure to inform "needlessly compounded and exacerbated" her injuries. Clark also alleged that Masi's failure to report the dog bite to law enforcement as required by state statute was negligence per se.

¶6 Masi's homeowner's insurance policy, in effect at the time of the incident, was issued by ASI. In pertinent part, the policy provided Masi liability coverage as follows:

If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" . . . caused by an "occurrence" to which this coverage ...

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