How much is your pet worth?

Court to de­cide af­ter dog wrongly put down.

Austin American-Statesman - - FRONT PAGE - By Chuck Lin­dell clin­dell@states­man.com

The Texas Supreme Court will de­cide whether the own­ers of a dog ac­ci­den­tally eu­th­a­nized by the Fort Worth pound can sue for the sen­ti­men­tal value of the fam­ily pet or merely for the re­place­ment value of the mixed-breed an­i­mal.

The an­swer could have lon­glast­ing im­pli­ca­tions for pet own­er­ship in Texas, lead­ing to di­vided loy­al­ties among a long list of an­i­mal lovers who have weighed in on the le­gal bat­tle.

The case be­gan as a law­suit filed by Jeremy and Kathryn Medlen, whose 6year-old dog Avery es­caped from their back­yard dur­ing a 2009 thun­der­storm. Jeremy Medlen found his dog at the city an­i­mal shel­ter but didn’t have enough money to pay

the re­quired fee, though em­ploy­ees as­sured him that a “hold for owner” tag on Avery’s cage would pro­tect the dog from eu­thana­sia for up to one week.

Four days later, how­ever, Avery was dead.

The Medlens sued Carla Strick­land, the shel­ter worker who had mis­tak­enly placed Avery on the eu­thana­sia list, al­leg­ing that her neg­li­gence caused the pet’s death. Ar­gu­ing that the dog was ir­re­place­able yet had lit­tle mar­ket value, the Medlens sought to re­cover an un­spec­i­fied award based on Avery’s sen­ti­men­tal value — kick­ing off a le­gal fra­cas that con­tin­ues.

State District Judge Don­ald Pier­son even­tu­ally dis­missed the law­suit, rul­ing that an 1891 Texas Supreme Court de­ci­sion al­lows own­ers to sue only for the mar­ket value of a dead dog or, at best, a spe­cial value based on “the use­ful­ness and ser­vices of the dog.”

The Fort Worth ap­peals court re­in­stated the Medlens’ law­suit last year, rul­ing that more re­cent Supreme Court de­ci­sions es­tab­lished “that the spe­cial value of ‘man’s best friend’ should be pro­tected.”

“Sen­ti­men­tal dam­ages may now be re­cov­ered for the loss or de­struc­tion of all types of per­sonal prop­erty,” the ap­peals court ruled. “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.”

Ear­lier this year, the Supreme Court agreed to hear the case to de­ter­mine how “com­pan­ion pets” should be treated by the law. Oral ar­gu­ments will be heard Jan. 10, with a rul­ing to fol­low some­time later.

Avery’s case has gained in­ter­est from an­i­mal­friendly or­ga­ni­za­tions, with most op­pos­ing the Medlens’ quest as harm­ful to pets.

A brief from the Amer­i­can Ken­nel Club, Cat Fanciers’ As­so­ci­a­tion and five sim­i­lar non­profit groups ar­gues that rec­og­niz­ing emo­tion-based dam­ages would in­crease li­a­bil­ity for vet­eri­nar­i­ans, shel­ter em­ploy­ees and an­i­mal- res­cue work­ers who could be sued if a pet is in­jured in their care.

“If tens of thou­sands of dol­lars are at stake ev­ery time a pet is in­jured or killed, pet lit­i­ga­tion will be­come a cot­tage in­dus­try,” the brief said. “Lit­i­ga­tion would arise when pets are in­jured in car ac­ci­dents, po­lice ac­tions, ve­teri­nary vis­its, shel­ter in­ci­dents, pro­tec­tion of live­stock and pet-on-pet ag­gres­sion, to name a few.”

The Texas Ve­teri­nary Med­i­cal As­so­ci­a­tion said it feared its mem­bers would be forced to prac- tice de­fen­sive medicine, or­der­ing ex­tra tests and ther­a­pies to limit their le­gal li­a­bil­ity. The re­sult would be higher prices and fewer pets treated as own­ers seek to cuts costs, the group said in a brief.

Strick­land’s lawyers warned the Texas Supreme Court of a “lit­i­ga­tion tsunami” if it fa­vors the Medlens, ar­gu­ing that it would put pet own­ers on an equal foot­ing with those who lose a spouse, par­ent or child.

“The court of ap­peals’ de­ci­sion ef­fec­tively cre­ates a new and in­de­pen­dent cause of ac­tion — loss of com­pan­ion­ship for the wrong­ful death of an an­i­mal,” Strick­land’s brief said.

The Medlens’ lawyer — joined by 11 Texas law pro­fes­sors and the Texas Dog Com­mis­sion, which lob­bies on be­half of ca­nines — told the court that fears raised by Strick­land and other or­ga­ni­za­tions were overblown.

“This case has noth­ing to do with men­tal an­guish dam­ages. This case does not cre­ate a new cause of ac­tion in Texas for ‘loss of com­pan­ion­ship’ af­ter the death of a pet,” said a brief by lawyer Ran­dall Turner.

In­stead, Turner wrote, a Medlen vic­tory would fol­low prior Supreme Court rul­ings that al­lowed peo­ple to re­cover the sen­ti­men­tal value of dam­aged prop­erty that has lit­tle or no mar­ket value — in­clud­ing dogs, which are con­sid­ered prop­erty un­der the law.

In a brief sup­port­ing the Medlens, the law pro­fes­sors agreed, not­ing that Texas courts have rec­og­nized since 1963 that the pri­mary value of ir­re­place­able prop­erty can in­clude the sen­ti­men­tal value held by the owner.

Turner took the ar­gu­ment one step fur­ther, rais­ing the ex­am­ple of a beloved pet killed through an­other per­son’s neg­li­gence. If Strick­land’s view of prop­erty pre­vails in court, he ar­gued, the owner could not sue for the sen­ti­men­tal value of the dog — un­less its taxi­der­mied body was de­stroyed years later.

“What rea­son­able ap­pli­ca­tion of the law al­lows a suit for dam­ages for the loss of inan­i­mate per­sonal prop­erty but not the de­struc­tion of the same prop­erty while it is alive?” Turner said in a brief.

The case is Strick­land v. Medlen, 12-0047. they can’t do a com­pre­hen­sive package of smart deficit re­duc­tions, let’s at min­i­mum make sure that peo­ple’s taxes don’t go up and that 2 mil­lion peo­ple don’t lose their un­em­ploy­ment in­surance.

“And I was mod­estly op­ti­mistic yes­ter­day, but we don’t yet see an agree­ment,” Obama said. “And now the pres­sure’s on Congress to pro­duce.”

Un­less Congress acts by mid­night to­day, a broad set of tax in­creases and fed­eral spend­ing cuts will be au­to­mat­i­cally im­posed on Jan. 1, af­fect­ing vir­tu­ally ev­ery tax­payer and government pro­gram.

Pound put down Avery af­ter owner was told dog would be held for him.

Jeremy and Kathryn Medlen sued Carla Strick­land, the shel­ter worker who mis­tak­enly placed Avery on the eu­thana­sia list in 2009. The Texas Supreme Court will de­ter­mine how ‘com­pan­ion pets’ should be treated by the law.

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