The decision of the Supreme Court referenced above is made under the slogan that "the insurance of the home where the dog lives covers the damages caused by the animal".

Story of facts: a lady was injured by the attack of the insured's dog, which gave rise to a claim before the First Instance Court No. 18 of Madrid, where the decision of the Judge rejected the claim against the insured party and his insurer. Subsequently, an appeal was filed before the Provincial Court of Madrid, which also ruled that the insurance company did not have to pay any compensation.

Finally, an appeal in cassation was submitted before the Supreme Court, which decided that the insurance company should pay more than 13,000 Euros in compensation to the two women affected.

The insured's dog attacked a woman who was walking two Yorkshire dogs, knocking her to the ground and causing the death of one of her dogs.

The facts were reported to the Civil Guard and the owner of the attacking dog claimed that the dog was covered by the homeowner's policy, as it weighed no more than 20 kg.

The woman who was attacked took legal action against the insurance company to claim compensation for a total of 26,384.19 euros for "after-effects, days of disability, expenses incurred and moral damages".

The insurance company refused to cover the claim, alleging that "its insured was a man who lived in the house where the owner of the Beauceron breed dog lived, who had taken out a home insurance policy in which formally only he was listed as the inhabitant and which only contemplated a "civil liability extended to private life".

After the corresponding appeal was lodged, the High Court analysed the claim and resolved it as follows:

The extraordinary appeal for procedural infringement and appeal in cassation is based on the following grounds of cassation:

"First. - Infringement of art. 218 LEC (Ley de Enjuiciamiento Civil), violation of the principle of congruence by the Judgment handed down by the 20th Section of the Madrid Provincial Court.

Second plea in law. - Infringement of Articles 3, 73 and 76 LCS (Insurance Contract Law) in relation to Article 217 LEC, infringement of the rules governing the distribution of the burden of proof with regard to the content of the insurance contract and of the rules delimiting the risk and/or limiting the rights of the insured".

"Infringement of Art. 1905 CC (Civil Code) and Art. 73 LCS. Infringement of the jurisprudential doctrine of the Supreme Court on the scope of liability.

With regard to the first plea, it is based, under Article 469.1.2 of the LEC, on infringement of Article 218 LEC, for breach of the principle of congruence in the judgment handed down by Section 20 of the Madrid Provincial Court.

The appeal is based on a twofold argument. The first, that the defendant insurer did not enter, in the reply to the claim, to discuss whether the animal which caused the damage was covered by the general clauses of the policy; it simply limited itself to saying that the owner of the animal was not the insured, but did not provide those clauses, nor did it argue whether or not the animal was covered by the policy, nor did it even make allegations about whether the animal weighed more or less than 20 kilograms.

On the other hand, no one denied that the owner and the animal lived at the address covered by the policy taken out with the defendant insurer. The appeal judgement goes on to resolve issues not debated by the parties, and not resolved in the first instance judgement.

It is concluded that the judgment is not inconsistent, insofar as it resolves the dispute by rejecting the claim, but it is a different matter whether the rules concerning the burden of proof have been infringed, which is the subject of the second plea of procedural infringement.

Second plea in law in the extraordinary appeal for breach of procedure. It is based on article 469.1.2 of the LEC, for infringement of articles 3, 73 and 76 LCS, in relation to article 217 LEC, violation of the rules governing the distribution of the burden of proof, regarding the content of the insurance contract and the rules delimiting the risk and/or limiting the rights of the insured.

In its development, it is pointed out that article 76 LCS contemplates the direct action brought against the defendant insurance company, and this precept, together with the provisions of articles 73 and 3 LCS, establish that the burden of proof against the injured third party regarding the content of the policy, its limitations and exclusions, corresponds exclusively to the insurer, not to the injured party, to whom it is sufficient to prove the claim and the existence of the policy.

Art. 76 LCS establishes that: "the direct action is immune to the exceptions that may correspond to the insurer against the insured" and with respect to the exclusions and limitations of the policy they must be accredited by the insurer, who has the accessibility to evidence, and who, moreover, could provide them in the preliminary proceedings or with the statement of defence to the claim.

The Supreme Court concludes that "in this case, the rules of the burden of proof have been violated", since, on the basis of the above arguments, "the evidential uncertainty" actually weighs on the part of the insurer.

On the other hand, the Supreme Court considers that the claim should be upheld on the basis of article 1905 of the Civil Code (CC), which "makes the owner of the animal or the person who uses it liable for the damage it causes, even if it escapes or gets lost". "It is a liability that derives from the damage that an animal may cause and the behaviour of the animal constitutes the title of imputation of the damage".

The Supreme Court explains that the insurer must compensate because, "according to the normality of things, animals live with their owners" and it has been accredited that the owner lived in the insured house, understanding that the claim is covered by this "civil liability extended to private life" although there is no specific mention of the dog in the claim. In spite of this, the compensation was reduced from 26,384 euros to 13,041 euros due to contradictory reports on the physical damage suffered by the attacked woman.

Conclusion: It must be emphasised that, in spite of the reasoning invoked by the insurer to exclude the coverage, in the exercise of the direct action, the insurer is the one who has to prove the exclusions and has not proved any of the previously stated extremes, the insured person-owner of the animal being responsible for the damage that it may cause according to the provisions of art. 1905 CC.

(*) Currently, all these situations and more have been regulated under the current Animal Welfare Act which came into force on 29 September. This law establishes the obligation to take out civil liability insurance for dogs to cover any damage that your pet may cause to third parties.

- The insurance will be compulsory regardless of the breed and size of the dog and must be maintained throughout the dog's life.

- The damages covered by the policy can be material damages or bodily injury to another person.

- The average price of this insurance is between 25 and 30 euros per year for non-dangerous dog breeds and 50 euros per year for dogs considered "potentially dangerous".

- Failure to take out this civil liability insurance is considered a minor offence and can lead to fines of between 500 and 10,000 euros.

We remind you that Belzuz Abogados, S.L.P. has a Department specialised in insurance, where we will be pleased to answer any queries you may have about insurance of any kind, both for companies and individuals.

 José Garzón García 

Belzuz Abogados SLP

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