Thursday, December 30, 2010
If a horse is livestock and is injured, fair market value can be recovered because a horse is personal property. This treats a horse the same as inanimate property, such as a car. FMV is the amount an average person would pay for the property at the moment prior to death.
If a horse is a pet and is injured, FMV plus special or intrinsic value might be recovered. (McMahon v Craig No. G040324, 2008 Cal.App. 4 Dist. WL 5610680. The jury in an Orange County suit against a veterinarian for negligence, deceit, and unfair business practices decided a dog had special value exceeding market value and awarded $39,000 for the death of a dog with a low FMV).
Some laws, such as the unique one in Tenn. Code Ann. Section 44-17-403 (2005), allow up to $5,000 in non-economic damages for the negligent or willful harm to or death of a pet of another. The definition of pet is limited to a domesticated cat or dog living in or near the household of the owner. Non-economic damages were limited to, “compensation for the loss of the reasonably expected society, companionship, love and affection of the pet.” This places pets closer to the category of a human. If a spouse or child is wrongfully killed then loss of consortium or companionship can often be recovered, though not typically for more attenuated relationships, such as a cousin or grandparent.
The American Veterinary Medical Association (AVMA) does NOT agree with recovery of greater than economic FMV damages for the loss of a horse.
Some of their reasons:
1. Increased costs associated with recovery will reduce owners' interest in seeking animal-related services
2. An increase in available damages will drive an increase in claims and litigation and create associated additional costs for defense, settlement, and administration
3. The value of human-animal relationships will be placed above that of most human-human relationships
The greatest argument in favor of damages exceeding FMV is the need for society, through the law, to recognize that the relationship between animals and people are greater than between a person and his inanimate property. Furthermore, if there is certainty that the wrongful death of an animal (such as veterinary malpractice) will result in damages exceeding market value, then that may encourage settlements outside of court, or will encourage harmed individuals to enforce their rights in court. If a dog from the pound has a market value of $10, then nary an individual would incur the costs of court to receive that small amount. If Legislature establishes that a wrongful death resulting from veterinary malpractice is permitted up to $X dollars (similar to medical malpractice statutes), then it may be more worthwhile for injured parties to pursue their claims.
How much do you think your dog, cat, or horse would garner if they were offered for sale right now? What would an average person pay for your pet? If your dog has been highly trained as a seeing-eye dog, it may be worth more, though even that result is not certain.
If your animal were negligently killed by the vet today, would you be satisfied with receiving only the FMV? Even if you aren't satisfied with receiving only FMV, do you think that those damages are the best for society as a whole, given the AVMA's reasonings? Would you purchase insurance on your horse (or other pet) to recoup its value, and not deal with the court system at all?
There are clearly so many public policy issues involved in this discussion! While instinctively we may think we deserve greater damages for the wrongful death of our pet, because we love them and care for them, awarding greater damages triggers a number of different and complicated results.
Tuesday, December 28, 2010
Not only did Santa give me a pair of sterling silver hunter spurs, but also a DVD of the World Equestrian Games 2010 in Kentucky!
Here is video of Phillipe Le Jeune's winning ride, and the award to the Canadian horse for best in show:
While I may have been most partial to the Brazilian's style of riding (Rodrigo Pessoa) and to the Belgian Chestnut (Vigo D'Arsouilles), I highly admire all the competitor's ability to show for a week, then switch horses in the final four and continue to exhibit such great riding.
Certainly inspirational to get ourselves in shape this winter for the spring show season!