A Modern Day Catch 22: The Dog, The Regulator, and The Insurance Company

Dogs are appearing more in public these days. Even large dogs are now regularly seen in upscale hotels, restaurants, and the passenger compartment of airplanes. The Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) make it a violation punishable by fine and other civil penalties for businesses open to the public which fail to make financially reasonable accommodations for animal owners who claim a protected legal status. These same laws give Manufactured Home Community tenants the right to keep a dog or other pet even if community rules otherwise prohibit such. Presuming the tenant and animal meet the proper definitions, community management must allow the tenant and animal to stay.

Informed tenants now regularly exercise their right to have their “Emotional Support Animal” or “Service Dog” reside with them. The potential for fraudulent claims regarding Service Dogs are few. Service Dogs are expensive, highly trained and easily identifiable to business owners. They are always dogs, and generally retrievers or German Shepherds wearing vests which identify them. These life-assisting dogs are also often in close proximity to an owner who has a clearly visible disability. As a result, there’s less potential for abuse of this vaulted legal status by owners of “Service Dogs.”

Almost as equally protected, Emotional Support Animals are often difficult to identify. They often appear as typical family pets. Pit Bulls, Rottweilers, cats, snakes, ferrets, and tadpoles may qualify for Emotional Support Animal legal status. The claiming owner merely needs a confirmation letter from a “Health Care Professional” to be granted this status. Administrative rules nor Courts have yet to specifically define “Health Care Professional.” While surely MD’s, DO’s, Chiropractors, Nurse Practitioners, and RN’s are “Health Care Professionals”, it’s also arguable that your Acupuncturist, Masseuse, and Yoga Instructor are too.

To complicate matters, insurance companies demand that community owners restrict dogs over 35 lbs. and all aggressive breeds, such as Pit Bulls, Rottweilers, Chows, Dobermans, Mastiffs, and German Shepherds from the Community. If not, the insurance company will include an animal attack exclusion on their general liability insurance policy. And unlike community owners, insurance companies don’t face penalties for refusing to insure a community owner if they prohibit these animals. Therein lies the Catch 22.

As a manufactured home community owner with a tenant who has a Pit Bull and is claiming Emotional Support Animal status, you have two options. First, you can refuse to allow the Pit Bull into the park by claiming that doing so is not financially reasonable. No insurance company will insure you properly if you do, even at a significantly higher rate. This is a legally sound decision. However, because most manufactured home community owners don’t have insurance coverage for discrimination claims by tenants, it may not be a practical decision as a Community Owner must pay their own legal defense costs plus any damages awarded by a court or other legal official, should the tenant file a complaint.

The second option is to allow the Pit Bull and advise your insurance company that you were legally compelled to do so presuming they become aware of the animal. Even if you’ve stated in an insurance application that your Community Rules exclude vicious dog breeds, you won’t have committed misrepresentation as you do have such rules. Furthermore, if the animal does bite someone, most manufactured home community general liability policies include animal bite defense and indemnity coverage. Because of the underlying coverage issues, this is often the most practical choice for many community owners.

Regardless which option you choose, there are steps all community owners can take to limit their financial risk exposure to dog bites, even Emotional Support Animals. Management can demand the animal owner keep the animal in their control at all times. It can remove any animal that is a proven danger to others in your community. It can prohibit the animal from coming into your buildings if it isn’t housebroken. Management can also require every tenant seeking an exception to complete and sign the “Service Animal from Tenant to Management Affirmation” form found in the Loss Control section of our website, www.MobileAgency.com.

Kurt D. Kelley, J.D.
President, Mobile Insurance
Kurt@Mobileagency.com

This article originally appeared in the Manufactured Housing Review.