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January 29, 2020 Feature

Valuation of Companion Animals

By Lenore Montanaro

People love pets, especially dogs and cats. In 2018, for example, the pet industry yielded over $72 billion on pet-related expenses. People spend money on food and treats, supplies, medicine, veterinary care, various services, apparel, afterlife arrangements, and toys for their animals. They upload and publish photographs of their “fur babies” on social media with hashtags such as #ilovemydog or #doggo. Some people choose to forego having and raising human children, electing instead to care for dogs or cats. Companion animals are, for many people, a part of their family unit.

This is unsurprising. After all, the bond between humans and animal companions is evolutionary. Humans and dogs share a reciprocal relationship. They evolved together. Dogs evolved to protect humans, keeping watch and alerting humans about threats. Dogs love humans unconditionally, and humans love their pets.

Companion Animals: Property and Family Members

Currently, the law considers pets to be property. However, many courts understand that companion animals are worth more to most owners than chairs, tables, or other personal property. Companion animals are of greater value to some pet owners than even special property, such as heirlooms. If owners considered their animal companions to be personal property, such as a chair or lamp, they would not necessarily take their animals to a veterinarian for treatment. Instead, owners would discard the infirm animal to simply get another. If owners thought of companion animals as property, they would not seek counsel for the creation of “pet trusts,” nor would divorcing couples fight for custody of their pet during a divorce.

Animals are worth more to clients than other forms of property. When a beloved pet is injured or killed as a result of another’s tortious action or inaction, what is the proper compensation that owners of the pet can receive for the injury or death of the animal?

Tort Law and Damages for a Companion Animal’s Injury or Death

The purpose of the tort system is to compensate an injured party for the wrongdoing of the tortfeasor. If the victim of the tort is a companion animal, there are numerous considerations. Should the law provide compensation for the animal’s suffering, the animal owner’s suffering, or both? What type of damages should be awarded? The answers to these questions depend on the jurisdiction and court that analyzes the matter.

A traditional measure of damages for property is the fair market value or the replacement value of the damaged or destroyed property. This traditional fair market value approach is often used for companion animals because animals are property. Fair market value may make sense for animals that are used in a commercial way, but fair market value for pets is likely de minimis and inadequate for owners of a pet, especially because the animal is a beloved member of the family unit. Another measure of damages is a “cost of repair” theory. This measure means that a plaintiff-owner could recover, for example, the cost to bring an injured animal back to health.

Courts may permit other special damages, such as the intrinsic value, or the sentimental value, of the pet to the owner. These damages may be awarded while simultaneously denying a plaintiff’s request for emotional distress compensation.

Some attorneys who represent owners of companion animals may try to pursue noneconomic damages. This refers to animal owners who seek damages for their emotional distress, loss of protection, or loss of companionship. Attorneys representing such owners may pursue punitive damages in addition to compensatory damages. Punitive damages may serve an important function in deterring defendants from engaging in bad acts.

Should the Value of Pets Be Limited to Fair Market Value?

Many courts have held or would likely hold that animals are property; as such, the measure of damages of animals is the fair market value or the replacement value of the property. Unfortunately, unlike some other property, the value of a companion animal to an owner tends to increase with age. Many pet owners form emotional bonds with their animals that increases as time passes.

How can animal valuation law reflect the reality that companion animals are worth more than property? Should courts increasingly recognize noneconomic damages for companion animals?

Those in favor of noneconomic damages for animals may include some attorneys, animal rights advocates, and pet owners. Noneconomic damages may encourage people and entities to treat animals well and to avoid any actions or inactions that would cause injury to or death of the animal. Those who oppose the use of noneconomic damages may include some veterinarians, kennel owners or managers, and others who care for animals. Entities that save animals, such as rescue organizations, also may be opposed to noneconomic damages. For example, suppose that a rescue organization humanly euthanized an outdoor cat that they found and determined to have “behavioral” issues. Upon learning that his beloved outdoor cat was taken and euthanized, a man wants to pursue a claim against the organization. It makes sense that the rescuing organization would not want the man to be able to pursue damages other than for the fair market value of the cat. What if, however, the man’s attorney argued that the cat could be cloned at a cost of $300,000 and that the fair market value of that cat was $300,000? Clearly, plaintiffs counsel who are involved in animal valuation matters may need to be creative in their approach to making a damages claim for torts against animals.

In 1846, the Massachusetts Supreme Judicial Court held that “[l]ife is the gift of God, not to man only, but to all animals, and it ought not to be taken away, except from necessity, or for some useful and proper purpose.” Coolidge v. Choate, 52 Mass. 79 (1846). Animals are sentient. They are alive. Clients who are distraught over the death or injury of a companion animal might be well-served by counsel who consider the value of the animal companion beyond the fair market value.

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By Lenore Montanaro

Lenore M. Montanaro is an animal protection attorney licensed to practice law in Rhode Island, Massachusetts, the District of Columbia, and the U.S. District Court for the District of Rhode Island. A facilitator working with a variety of stakeholders, she works to positively affect animals at the federal, state, and local levels of government and within the legal arena. She has experience as director of advocacy for the Animal Rescue League of Boston, where she advanced animal-friendly legislation in the Commonwealth. Currently, she is an adjunct professor of law, teaching animal law at Roger Williams University School of Law. She currently is chair of the Companion Animal Subcommittee of TIPS’s Animal Law Committee and will become chair-elect of the Animal Law Committee for the 2020–2021 bar year. She also serves as founder and chair of the Rhode Island Bar Association’s Animal Law Committee. She may be reached at [email protected].