‘Beloved property’ case was clean vehicle to expand damages for injured pets

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As stated on his website, Elliott Harding works “diligently to develop the law in a manner that protects your pet’s best interests while producing the results you need.”

The Charlottesville litigator furthered that goal when he sued Blue Pearl Veterinary Partners for negligently failing to secure his client’s golden retriever, Marin, during a CT scan and severely injuring the dog’s legs.

In addition to $6,782 for “necessary treatment and evaluations,” Kristine Anderson sought between $108,855 and $119,055 per year for the remainder of Marin’s life for “adequate and necessary rehabilitative care,” including electronic stimulation, shockwave therapy, ultrasound therapy, laser therapy, underwater treadmill, platelet rich plasma therapy and stem cell therapy.

It’s just so interesting because as the law develops, the next case very well may expand it to a novel area that hasn’t been discussed — the nature of veterinary malpractice, such as misdiagnoses or failure to diagnose. A case may arise where a vet’s failure to treat or diagnose something results in an owner having to pay more out of pocket than they would with preventative treatment.

— Elliott Harding

Blue Pearl moved to exclude evidence of expenses over $350 — which was how much Anderson had paid for Marin.

Eschewing the general rule for determining damages in personal property cases, Virginia Beach Circuit Court Judge Kevin M. Duffan reasoned that a factfinder should decide which treatment costs were “reasonable and necessary expenses.”

The Court of Appeals of Virginia affirmed on interlocutory appeal in Blue Pearl Veterinary Partners, et al. v. Anderson (VLW 023-7-261). Virginia Lawyers Weekly covered the published opinion in “‘Beloved property’: Recovery not limited to injured pet’s fair market value.”

Joined by Judges Doris Henderson Causey and Frank K. Friedman, Richard Y. AtLee Jr. said Blue Pearl’s motion used “an overly mechanistic approach” to measuring damages that ignored the “ultimate aim of making good the injury done or loss suffered.”

“Indeed, it is a matter of ‘good sense’ that Blue Pearl must ‘mak[e] good the injury’ caused by its negligence. Thus, Anderson may recover for all veterinary expenses that she can prove were or will be reasonably and necessarily incurred because of Blue Pearl’s negligence.”

Q. How did you become involved with this case?

A. Kristine had spoken with a few other attorneys in the area while also trying to secure funds for Marin’s treatment. She met a roadblock with attorneys who weren’t inclined to take the case, either because they didn’t have experience in it or didn’t see the potential for success.

Kristine ultimately found me based on an internet search showing I’ve been involved in some other animal-related matters. My prior animal cases weren’t really the same by any means but she reached out to give me information.

After doing some research about property valuation and the ability to recover, I really struggled with the idea that the law would deny somebody the ability to recover for future damages here. That seemed to run afoul of some basic equitable principles.

Q. What are your thoughts as an attorney on this case?

A. The Supreme Court of Virginia confirmed in Kondaurov, et al. v. Kerdasha that damages for a negligently injured pet are “confined to the diminution in the value of the property resulting from the accident, plus reasonable and necessary expenses incurred.”

But the Kondaurov court denied emotional damages for the injured pet’s owner, which we weren’t seeking against Blue Pearl. Dicta from Kondaurov indicated that a court may expand the scope of recovery or clarify its scope.

I told Kristine I was willing to get an answer to what seemed like a novel question and there were other states that allowed for such recovery. The position we took rendered us so far apart from what was offered that it forced us into litigation.

You’ve got an entire industry where the service providers are paying insurance, but how high can the premiums be if the policy is never going to pay out beyond the value of the dog?

The defendants seemed to be overconfident, and I think their perspective was that we were claiming an extreme amount of damages. They dug their heels into traditional personal property law without taking into consideration that we’re dealing with a living animal, not furniture.

One thing we relied on in our argument was the duty under Virginia Code § 3.2-6503 for animal owners to provide necessary veterinary care. There’s no statutory duty to make sure one’s table legs remain intact, right?

Q. Were you expecting press coverage?

A. We got a fair amount of local coverage, but it wasn’t overwhelming. I heard from practitioners and certain legal associations with questions, so I know it hit a lot of radars. It’s one of those interesting areas and a lot of people have pets. We got a lot of good feedback.

Q. What kind of challenges did you overcome in this case?

A. From a practical standpoint, COVID made the duration of litigation linger. Also, my client remained out-of-pocket for the duration and, unfortunately, I think some of the services that could be rendered to Marin at the time were cost prohibitive.

This case was rather straightforward with purely legal things being argued. The facts of this case were so apparently wrong on their face that Blue Pearl thankfully conceded liability. The focus on damages made this case a clean vehicle that didn’t require traditional approaches.

Q. Where does this case stand now?

A. We ultimately settled the case in January and my client feels she was made whole. Unfortunately, Marin passed away not long after the case settled. At 13, she lived a long and happy life where she was well cared for.

A silver lining is that my client will not have to account for future treatment. When looking at future expectancy, you’re playing a numbers game as to whether you’ve recovered enough to provide enough future care.

Q. How will this opinion affect future cases?

A. I’ve gotten a fair number of calls about other cases. It’s just so interesting because as the law develops, the next case very well may expand it to a novel area that hasn’t been discussed — the nature of veterinary malpractice, such as misdiagnosis or failure to diagnose.

A case may arise where a vet’s failure to treat or diagnose something results in an owner having to pay more out of pocket than they would with preventative treatment.

Rarely you’ll have a situation where there’s such an injury as there was here and the dog survives. Sadly, when a dog dies, there are no future costs and treatments, so you’re more limited in the nature of recoverable damages.

Some callers have sought representation with cases involving racehorses where the scope of damages could be well in excess of what would traditionally be recovered.

It’s unique because humans have the Virginia Medical Malpractice Act with clear standards and caps on damages. I think traditional malpractice jurisprudence will find its way into veterinary cases. It’s so similar to negligence but also involves bailments and contracts.