The defendants owned a dog that caused property damage and injury to the plaintiff. She filed suit against the dog owners and Vermont Mutual Insurance Company (Vermont Mutual). Vermont Mutual counterclaimed and cross-claimed, seeking a declaration that the homeowner’s policy at issue was void as a result of the insureds’ material misrepresentations on their application for insurance as to the dog’s bite history and their history of loss. Following a bench trial on the issue of coverage only, the lower court agreed with Vermont Mutual on the bite history issue and accordingly dismissed the plaintiff’s complaint against Vermont Mutual. The dog owners and the plaintiff (collectively, the appellants) jointly appealed. The Massachusetts Court of Appeals agreed with the appellants and vacated the lower court’s judgment.
On December 30, 2010, the dog owner visited the Tarpey Insurance Group (Tarpey) in Peabody for the purpose of obtaining homeowner’s insurance for his residence in Peabody. With the assistance of one of Tarpey’s customer service representatives, he completed an application for insurance with Vermont Mutual. On the application, he responded “Yes” to the question, “Are there any animals or exotic pets kept on premises?” Under the “Remarks” section of the application, the representative noted, “American bull dog — no biting incidents.” Another section of the application was entitled “Loss History” and asked, “Any losses, whether or not paid by insurance, during the last 6 years, at this or at any other location?” The dog owner responded “No” and placed his initials adjacent to his response. He signed and dated the application. Vermont Mutual subsequently issued a homeowner’s policy to the the dog owners.