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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

A Rehearing En Banc is Granted and Another Blawger Drops a Gauntlet

While you, dear reader, ponder the meaning of the second half of the headline, let me first address the Rehearing Granted today in Katie Orndoff v. Commonwealth of Virginia. This case was decided back in June and discussed in this space. The case involved a victim-witness who felt the need for some smoked courage (then still not legal) before testifying and incurred the summary contempt wrath of the judge for being intoxicated in his courtroom. The majority found that the circuit court lacked sufficient evidence to support the summary contempt finding, while the dissent felt that the witness's behavior on the stand was sufficient to prove her intoxication. Separate and apart from the legality of the contempt finding, the judge has suffered the wrath of public opinion for what was viewed as disrespectful treatment of a victim who was being made to face her accuser in a domestic battery case. The full court will now review the conviction.

Now on to today's one published decision and the aforementioned Gauntlet Dropping. The Sage of Virginia Beach, Steve Emmert has advised that he intends to invade "my" territory of the Court of Appeals Blawging (actually he informed me and another Blwager who also reports on the VCA, so perhaps I should say "my shared territory") in order to discuss Blue Pearl Veterinary Partners, LLC, et al v. Kristine Anderson. Now to be fair, Steve did offer us the first bite at the apple before he weighed in, which was quite decent of him.

More to the point, when the Court of Appeals jurisdiction was expanded, I suggest that he continue to review the civil cases while I would focus on the criminal, domestic and administrative ones. He declined, graciously, saying he would continue to confine himself to the opinions of the Supreme Court of Virginia, but I think may be having second thoughts given the paucity that court's recent output, so I cannot begrudge him the opportunity

At any rate, I recommend his Blawg, Virginia Appellate News and Analysis to you and look forward to his own take on Blue Pearl. But he did offer the challenge of first effort to me, so let's dive in, shall we?

If you have seen Miracle on 34th Street -- the original form 1947, at least -- you will recall the scene in which Mr. Gailey (the marvelous John Payne from Roanoke) recites certain facts about the post office "for the record." Well, let me recite some facts "for the record":

Pet ownership in the U.S. has jumped significantly over the past three decades. As of 2023, 66% of U.S. households (86.9 million homes) own a pet That’s up from 56% in 1988, pet ownership statistics show. From companionship to emotional support, pets are a vital part of their owners’ lives. In fact, 85% of dog owners and 76% of cat owners consider their pets to be a member of the family. Dogs are the most popular pet in the U.S. (65.1 million U.S. households own a dog), followed by cats (46.5 million households) and freshwater fish (11.1 million households).

In 2022, Americans spent $136.8 billion on their pets, up 10.68% from 2021 ($123.6 billion). Dog owners spend an average of $730 a year on their dogs. While the love of a pet is priceless, the cost of owning one is not. Veterinary care, grooming, food, treats and other outlays can add up quickly. For example, a Forbes Advisor survey of more than 5,000 U.S. dog owners found that 41% of dog owners spend between $500 and $1,999 a year on their dogs and 8% spend more than $2,000. Dog owners spend the most on veterinary care ($367 per year), food ($339 per year) and grooming ($99 per year).

Why have a recited these facts for the record? Because this case is about what a dog is worth. Ask any dog owner what their pet is worth and they will say "you cannot put a price on love." I offer this:

“The gift which I am sending you is called a dog, and is in fact the most precious and valuable possession of mankind.” — Theodorus Gaza, 15th Century Greek Humanist

But the folks at Blue Pearl can ask the court to put, or rather limit, the value of dog that was injured as a result of the negligence of one of their employees. You see, the dog had two of its legs crushed during an MRI procedure and extraordinary measures were needed and will continue to be needed to care for the animal. In suit to recover these damages, Anderson sought $6,782 for “necessary treatment and evaluations.” She also sought between $108,855 and $119,055 per year for the remainder of the dog’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. Blue Pearl filed a motion in limine to exclude “any evidence or suggestion of veterinary expenses in excess of $350.00,” the amount Anderson paid for the dog.

The court acknowledged that damages for injury to personal property typically are “confined to the diminution of the value of the property” and any “reasonable and necessary expenses incurred.” Nevertheless, the court ruled that certain veterinary treatments exceeding the dog’s value could be “reasonable and necessary expenses.” The court further found that determining which expenses were in fact reasonable and necessary was a question for the fact finder. The court certified that this question was subject to an interlocutory appeal under Code § 8.01-675.5(A).

Today the Court of Appeals affirmed the judge's ruling. Judge Athey, joined by Judges Causey and Friedman, recognizes that pets, however beloved, are personal property (the readers of Dog Fancy and Cat Fancy are probably seething at this suggestion), and as such a cause of action for injury to chattels cannot include “damages for emotional distress resulting from negligently inflicted injur[ies]" (more seething from Friends of the ASPCA). This does not mean, however, that recoverable damages cannot include veterinary expenses that exceed the diminution in the dog’s fair market value, which the Court observes is an issue of first impression in Virginia.

Blue Pearl notes that “the general rule for determining . . . damages for injury to personal property is to subtract the fair market value of the property immediately after the loss from the fair market value thereof immediately before the injury, the remainder, plus necessary reasonable expenses incurred, being the damages.” (Emphasis added mine, which I will explain shortly).

The Court agrees that this is generally the measure for damages to personal property . . . but it is not the only measure. Rather, there are “sundry rules for measuring damages" which "are subordinate to the ultimate aim of making good the injury done or loss suffered and hence ‘[t]he answer rests in good sense rather than in a mechanical application of a single formula.'" When the property has no ascertainable market value or where such value is "manifestly inadequate,"' some other measure of worth must be applied. (Cheering from The American Kennel Club).

Relying on a 1904 case from Massachusetts and an even older treatise, the Court concludes that Blue Pearl's proposed limitation to diminution in market value was overly mechanistic and that the Court properly denied the motion in limine. At trial (technically, not "on remand" because this is an interlocutory appeal), Anderson will still have the burden of proving that the six-figure annual costs of care are reasonable an necessary, but she should have that chance.

Now, back to my emphasis in the paragraph above. Blue Pearl argued that damages in the case included necessary reasonable expenses incurred. Well, isn't that exactly what the trial court ruled? So, I am left to wonder what Blue Pearl was trying to accomplish by not sticking to its guns that the damages were limited to the animal's purchase price and nothing more? I am not sure that the Court shouldn't have seized on this statement as a concession and affirmed on that basis.

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