Opinion Allowing Sentimental-Value Damages Appealed

A defendant has asked the Texas Supreme Court to reverse a first-of-its kind opinion that allows a family to recover damages for the “sentimental value” of a dog. In a petition for review, the defendant alleges the 2nd Court of Appeals’ opinion in the case creates a new loss-of-companionship cause of action for a pet’s death and therefore should be reversed on public policy grounds. The dog was named Avery.
A defendant has asked the Texas Supreme Court to reverse a first-of-its kind opinion that allows a family to recover damages for the “sentimental value” of a dog.

In her Jan. 17 petition for review, Carla Strickland alleges the 2nd Court of Appeals’ opinion in Strickland v. Medlen, et al. creates a new loss-of-companionship cause of action for a pet’s death and therefore should be reversed on public policy grounds.
But the lawyer for the Medlen family, whose dog Avery was euthanized in 2009, says the 2nd Court’s decision does not create a new cause of action, because pet owners have been able to sue for the loss of a dog for more than 100 years.

According to the Nov. 3, 2011, opinion by Fort Worth’s 2nd Court, the background in Medlen is as follows: In 2009, Kathryn and Jeremy Medlen’s dog Avery escaped from their backyard and was picked up by animal control. Jeremy went to the animal shelter but did not have enough money to pay the fees. He was told he could return the next day, and a “hold for owner” tag was placed on Avery’s cage, notifying the shelter employees that Avery was not to be euthanized.

Despite the “hold for owner” tag, Avery was put down the next day. When the Medlens returned to the shelter to pick up Avery, they learned what had happened.

The Medlens sued Strickland, an employee at the shelter, alleging her negligence proximately caused Avery’s death. They sued for “sentimental or intrinsic” damages, because Avery had little or no market value and was irreplaceable.

Strickland objected to the Medlens’ claims for damages on the ground that such damages are not recoverable for the death of a dog. The trial court dismissed the Medlens’ suit for failure to state a claim for damages recognized by law — a ruling the Medlens appealed to the 2nd Court.

In its decision, the 2nd Court took aim at the Texas Supreme Court’s opinion in Heiligmann v. Rose , an 1891 case that involved a plaintiff who successfully sued a defendant after his dog was poisoned. In Heiligmann , the high court ruled that a damage award for the loss of a canine may be determined by “either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to usefulness and services of the dogs, and that they were of special value to the owner.”

In Medlen , the 2nd Court pointed out that the Supreme Court has not addressed the value of a lost pet in the 120 years since it issued Heiligmann , although the high court has written several opinions in modern times that have “explicitly held that where personal property has little or no market value, and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value.”

“Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as other personal property,” wrote 2nd Court Justice Lee Gabriel, joined by justices Sue Walker and Bill Meier.

Pets and Policy

But Medlen represents a huge change in Texas public policy, Strickland alleges in her Supreme Court petition for review.

“The court of appeals’ decision creates a new and independent cause of action — loss of companionship for the wrongful death of a pet. This sweeping change in animal law gives pet owners the potential for a greater damages recovery for the loss of their pets than is available for the loss of a relative or close human friend,” Strickland alleges.

John Cayce, a former chief justice of the 2nd Court who represents Strickland, believes his old court stepped out of bounds by ruling in the Medlens’ favor.

“We all sympathize with anyone who loses a dog. I’ve lost dogs in the past, and it breaks my heart every time. It makes sense that the court had sympathy for the Medlens in this case,” says Cayce, now a partner in Fort Worth’s Kelly Hart & Hallman. “But to make such a dramatic change in the law to remedy that situation — again, if that is the direction that the state wants to go, it ought to be decided by the Legislature.”

But the Medlens’ lawyer Randy Turner, of the Bedford office of Bailey & Galyen, calls two of Strickland’s primary allegations in the petition for review “disingenuous.”

“First of all, Medlen did not create a new cause of action. I’m tired of saying that until I’m hoarse. They’ve been able to do that [sue] since 1891,” Turner says. “But now we’re going to treat [dogs] like every piece of property. We’re going to treat it like it was a car, as far as damages.”

Second, Turner says Strickland’s allegation that Medlen could allow pet owners to recover more damages for a dog than for a human friend is incorrect. The Texas Wrongful Death and Survival Act only allows parents, spouses and children of a decedent to recover, he says.

“You’ve always been able to sue if someone destroys your property. You have the right to sue somebody who damaged your car but not who killed your sister. . . . That’s not some new law that Medlen enacted,” Turner says.

But it has the same effect, Cayce responds. “This opinion goes far beyond that. It puts a dog in the same status under the law as a parent, as a child or as a spouse. That’s my point.”

The Texas Veterinary Medical Association is weighing whether to file an amicus brief at the high court in Medlen , says Elizabeth Choate, director of governmental relations and general counsel of the association. Choate says she fears that if pet owners are allowed to recover damages for the sentimental value of their pets, veterinarians’ insurance premiums will increase along with the cost of medical care for pets.

Notes Choate, “Veterinarians love their pets and value those friendships. But does it value our society to elevate that status up to people?”

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