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Van Kleek v. Farmers Ins. Exch.

Supreme Court of Nebraska

December 19, 2014

JENNIFER VAN KLEEK, APPELLANT,
v.
FARMERS INSURANCE EXCHANGE, DOING BUSINESS AS FARMERS INSURANCE GROUP, ALSO KNOWNWN AS " FARMERS," APPELLEE

Page 298

Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.

AFFIRMED.

Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch Law, P.C., L.L.O., for appellant.

Daniel P. Chesire and Anastasia Wagner, of Lamson, Dugan & Murray, L.L.P., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 299

[289 Neb. 731] Connolly, J.

SUMMARY

Jennifer Van Kleek agreed to watch Walter and Janet Chapman's dog while the Chapmans were out of town. While Van Kleek was caring for the dog, it bit her on her lower lip. Van Kleek filed a claim with the Chapmans' homeowner's insurer, Farmers Insurance Exchange (Farmers). Farmers rejected the claim because Van Kleek was also an insured and the policy excludes coverage for bodily injuries to insureds. The policy defines " insured" to include " any person . . . legally responsible" for covered animals. Van Kleek filed an action for declaratory judgment against Farmers, seeking a determination that the policy covered her claim. Farmers moved for summary judgment, and the district court sustained Farmers' motion, reasoning that Van Kleek was " legally responsible" for the dog because she fed and watered the dog [289 Neb. 732] and let it out of the house while the Chapmans were away. We affirm.

BACKGROUND

The Chapmans planned to take a trip from July 2 to 12, 2011, and asked Van Kleek, a family friend, to watch their dog. The dog, D.J., was a " Chow" weighing about 60 pounds. Walter Chapman testified that chows are " territorial" and that D.J. was not allowed out in public. Unless the Chapmans were home, they confined D.J. to the basement. When he needed to be outside, the Chapmans let D.J. into a fenced-in area behind their house.

Van Kleek and Walter Chapman both testified that the Chapmans instructed Van Kleek to feed, water, and let D.J. into the backyard while the Chapmans were gone. Van Kleek testified that she " assume[d]" that she " would have to go find [D.J.]" if he got loose or take him to a veterinarian if he became ill. Van Kleek had permission to stay at the Chapmans' house to make caring for D.J. more convenient, but the Chapmans did not compensate Van Kleek.

Van Kleek stayed at the Chapmans' house from July 2, 2011, to the morning of July 5. She was the only person in the house during this period. On July 5, Chapman let D.J. into the enclosed backyard. After she let D.J. back into the house, she bent over to give D.J. a biscuit, " just showing him affection." Van Kleek testified that D.J. " lunged" or " charge[d]" at her as she was bent over and bit her lip. The bite removed the " fatty part" of Van Kleek's lower lip, requiring reconstructive surgery.

The Chapmans are the named insureds on a homeowner's policy ...


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