INTERESTING PUBLISHED OPINION FROM CAV

(Posted July 12, 2023) My eye is usually on the Ninth Street façade of the building that houses the Supreme Court and the Court of Appeals of Virginia. But yesterday I noticed an interesting decision emerging from the Eighth Street entrance, and decided it was worth mention here.

The case is Blue Pearl Veterinary Partners, LLC v. Anderson. Blue Pearl operates a string of veterinary hospitals, including one here in Virginia Beach that has treated two of our beloved dogs. The company found itself on the receiving end of a lawsuit over injuries negligently inflicted upon Anderson’s dog during a CT scan.

At issue here is how much the plaintiff may be able to recover after an eventual trial. Anderson sued in an amount that isn’t specified in the opinion, but I infer that it was deep into six digits. The hospital moved the circuit court in limine to limit any evidence of damages beyond the dog’s value – measured by its $350 purchase price.

In Virginia, animals, however beloved, are considered personalty. That means that a dog owner can’t recover for mental anguish over something like the animal’s death at the hands of a tortfeasor. In theory, then, the most you should be able to recover for the loss of an animal is its fair-market value.

But Anderson’s suit was more creative: She claimed vet bills of $6,000 and change, plus future “adequate and necessary rehabilitative care” for the rest of the dog’s natural life. She noted that by law, she has a duty to provide that care; anything less, she felt, would be animal cruelty. The price tag on that care was staggering: well over $100,000 a year, presumably multiplied by the dog’s remaining life expectancy.

Hence the motion in limine. The hospital pointed to caselaw that measures damages according to the diminution of fair-market value when personalty is damaged, or in this case, injured. Because no one would pay less than zero for the injured dog, the hospital reasoned that damages should be capped at $350.

The learned trial judge didn’t see it that way. He denied the motion, holding that damage calculus is more nuanced in situations like this. Specifically, damages may include, in addition to any diminution in value, any “reasonable and necessary expenses incurred.” Because a jury might find the rehabilitative expenses to be reasonable, the court declined to cap those damages pretrial.

It gets procedurally interesting here: The parties asked the circuit court to certify the in-limine decision for an interlocutory appeal. That makes eminent sense; no one would want to go to trial if the eventual ruling is that the playing field is in three digits. The circuit court agreed, so we find ourselves in the Court of Appeals.

Yesterday a panel of that court released a published opinion that affirms the denial of the motion. Judge AtLee, writing for Judges Causey and Friedman, agrees that the possibility of recovering “reasonable and necessary expenses” exists here, so the plaintiff should have a fair chance to prove those damages. This is evidently a question of first impression in Virginia, so a petition for appeal to the Supreme Court is eminently foreseeable.

As a dog owner, I cheer this ruling. Virginia’s they’re-just-personalty rule is, in my view heartless, obviously drafted by someone who never owned a dog, or who perhaps was bitten by a mean one as a child. (My boy, Ardie, would never do that; the kids in the neighborhood love him.) I’m confident that the insurance industry would fight fiercely to retain the rule, but I hope someone in the legislature will tackle this uncaring doctrine.

This ruling brings to mind my all-time favorite footnote in the annals of Virginia jurisprudence. It comes from Kondaurov v. Kerdasha, 271 Va. 646 (2006), in which the Supreme Court reaffirmed the personalty rule. Senior Justice Russell, long one of my very favorite writers on the SCV, must have been smiling as he penned this footnote to the opinion of the court:

Sushi [the dog] attended the trial. Plaintiff’s counsel represented that she was a “service dog” as defined in Code § 51.5-44(E), and that the plaintiff relied on her for assistance. The court entered an order, to which the defense agreed, permitting her to accompany the plaintiff on condition that there would be “no growling or hostility toward the defense counsel.”

Because this case is in the Court of Appeals, two of my colleagues have already posted analysis of it. I commend to you the views of John Koehler and Juli Porto, who wrote ably yesterday about the ruling. John especially has gone above and beyond in researching stats on dog ownership and the cost of having one in the home. The value of having one is, of course, immeasurable. But I might be biased.

Update July 13: One of my pals has written to forecast that this ruling might cause the cost of insurance for veterinarians to rise (and, concomitantly, the cost to the consumer of vet care), as that kind of insurance likely is written with the FMV cap in mind. My background in economics tells me that he’s probably right. He also posits, horrifyingly, that it’s now economically less damaging to a vet to allow an animal to die rather than saving its life; as this case illustrates, long-term care like this will foreseeably exceed the animal’s purchase price. Yeesh! Thanks for the input, Rob … I think …