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While there is no express duty for property owners to respond promptly to service animal requests, this duty may be implied under the Fair Housing Act (FHA). Recently, a judge in the District Court of Massachusetts found that this duty may be implied when there is undue delay in deciding to permit or deny a reasonable accommodation, such as a service animal. Some courts have been somewhat hesitant to imply a duty to respond promptly, but more have been willing to in order to ensure equal enjoyment for all residents.
The FHA prohibits discrimination on the basis of race, color, religion, sex, handicap, familial status, or national origin in the context of housing. If a handicapped tenant is denied a reasonable accommodation to have equal enjoyment of the property by a landowner, that denial may be viewed as discrimination. Handicap is construed broadly, encompassing those with “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”
Reasonable accommodations must be evaluated by the condo board or association with the power of making the decision of whether or not to allow the animal. Simply because a handicapped person requests an accommodation, that does not mean the deciding board has a duty to accept their requested accommodation. A “meaningful review” must be conducted and then a decision may be rendered. Service animals have been long recognized as a reasonable accommodation in aiding the growing number of those in the United States with disabilities. While many property managers do not allow animals, they are still required to conduct the same meaningful reviews for reasonable accommodations to determine whether such accommodation is required by the law. This further allows them to inquire into the details of the handicap to make their determination, but not in an intrusive manner; this usually excludes the need for detailed medical records–a letter from a medical provider may be sufficient.
Recently in Giardiello, the condominium owner’s son was diagnosed with post-traumatic stress disorder and required the assistance of a service animal to sense panic attacks and ease anxiety. After rescuing and bonding with a trained police dog while living in Florida, the son needed to move into his father’s condominium in Massachusetts; the condominium board (Board), however, expressly prohibited animals on the premises and lacked any formal procedures regarding accommodations for handicapped residents. After numerous attempts over several months to contact the Board to request a reasonable accommodation, the condominium-owner and his son received no response and the son moved into in the condominium with his service dog. Immediately after moving in, the owner and his son received an email stating that they had one week to remove the dog from the premises. The Board promptly began imposing fines and gave the son a brief ten days to provide medical documentation for why he must have a dog with him for his disability.
In order to state a claim for discrimination due to a lack of a reasonable accommodation, the plaintiff must show (1) she is disabled under the FHA; (2) defendant knew or should have known of the disability; (3) the requested accommodation was reasonable and necessary for equal enjoyment of the property; and (4) the defendant refused the accommodation. The plaintiff in Giardiello clearly satisfied the first three elements, but it is not clear whether the Board truly denied the accommodation. That leaves the threshold question: can an undue delay in responding to the accommodation amount to a denial? The answer is lacking in the FHA and judges must look to other interpretive guidance for assistance.
In 2004, the United States Department of Justice and Department of Housing and Urban Development issued a joint statement regarding guidelines for reasonable accommodations under the FHA. The statement provided that a board “has an obligation to provide prompt responses to reasonable accommodation requests. An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.” Though this is merely administrative and not binding legislation, courts may turn to it for guidance when interpretation of a statute is required. The Board in Giardiello tried to argue the delays were caused by the son’s delay in returning the medical documents; however, the Board ignored the initial requests for an accommodation for months before medical documents were requested.
The final question left is what constitutes “undue” delay? It is clear in Giardiello that taking months to reply was considered undue delay, but where is the line drawn? How long does it take to conduct a “meaningful” review? Courts have not put a bright line rule on how many days, weeks, or months would constitute “undue,” but instead opted for a fact-based inquiry where a reasonable solution for landowners would be to respond to the individual seeking the request as soon as reasonably possible and not create any barriers to communication.
While there continues to be no rule regarding undue delay set forth under the FHA, federal courts throughout the country should continue to follow the interpretations provided by the Department of Justice and Department of Housing and Urban Development and nonbinding precedent of other jurisdictions. Perhaps legislative changes in the future could modify the fourth element to make the standard clearer that undue delay or denial of an accommodation may result in a violation under the FHA. Not all courts will deem constructive denial as actual denial, but they should when disabled citizens are trying to exercise their fundamental human right to housing.
 See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 96-97 (D. Mass. 2017) (finding duty to review promptly); see also Overlook Mut. Homes, Inc. v. Spencer, No. 09-4036, 2011 WL 285253, at *4 (6th Cir. 2011) (deeming undue delay failure to respond).
 See Giardiello, 261 F. Supp. 3d at 96-97.
 See e.g., Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1286 (11th Cir. 2014) (implying duty following guidance from other administrative documents); Spencer, 2011 WL 285253, at *4 (highlighting detriment if not implied); Giardiello, 261 F. Supp. 3d at 96-97 (following Spencer’s reasoning).
 See 42 U.S.C. § 3604 (1988) (providing details of statute).
 See id. (including denial reasonable accommodations as discriminatory practice).
 See 42 U.S.C. § 3602 (1988) (defining handicap).
 See Gavin v. Spring Ridge Conservancy, Inc., 934 F.Supp. 685, 687 (D. Md. 1995) (recognizing limitations and protections afforded to board).
 See In re Kenna Homes Coop. Corp., 557 S.E.2d 787, 794 (W. Va. 2001) (requiring thoughtful review of request before denial).
 See Rebecca J. Huss, Why Context Matters: Defining Service Animals Under Federal Law, 37 Pepp. L. Rev. 1163, 1166-67 (2010) (providing history of service animals and need for them).
 See Overlook Mut. Homes, Inc. v. Spencer, No. 09-4036, 2011 WL 285253, at *4-5 (6th Cir. 2011) (gauging amount of information required to make decision).
 See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 91 (D. Mass. 2017) (expressing need for service animal to aid with medical condition).
 See id. at 91-92 (emphasizing Board rules).
 See id. (detailing lack of available options after exhausting all remedies).
 See id. at 92 (providing email sent upon discovering dog on premises).
 See Giardiello, 261 F. Supp. 3d at 94.
 See Astralis Condominium Ass’n v. Secretary, U.S. Dept. of Housing and Urban Development, 620 F.3d 62, 67 (1st Cir. 2010) (reciting elements for stating claim for violation of FHA regarding reasonable accommodations).
 See Joint Statement of HUD and DOJ, Reasonable Accommodations Under the Fair Housing Act (May 14, 2004) (providing gap-filler interpretations).
 See id. (answering threshold question).
 See Giardiello v. Marcus, Errico, Emmer & Brooks, P.C., 261 F. Supp. 3d 86, 98 (D. Mass. 2017) (stating plausibility of claim).
 See id. (failing to discuss what constitutes “undue” delay).
In Massachusetts, when an insured’s act falls within an exclusion in the policy, the insurance company may be entitled to declaratory or summary judgment, which ultimately relieves it from its contractual duty to defend. Policies, however, are to be construed strictly against insurers when courts analyze any ambiguity. Insurance companies and policyholders become frustrated with the courts when they attempt to strike a balance between the competing interests: insurance companies believe they should not be required to pay for a policyholder’s litigation when it is the insurance company’s belief that the behavior falls explicitly within an exception. Contrasting the insurance companies interest is that of the policyholders, who, as consumers, believe they are entitled to protection when there are differing interpretations because they did not drafted the policies, but merely assented to them. Both the insurer and the insured have valid arguments, but how does a court decide in favor of one over the other?
When there are ambiguities in contract interpretation, these ambiguities are to be construed against the insurance company because they were the ones in control when drafting the contract. Quite often, policyholders will argue a clause is ambiguous and they are entitled to coverage. Most insurance contracts, however, are quite detailed to avoid this issue; when language within a policy is free of ambiguity, the words must be construed in their “usual and ordinary sense.” This is where the issue arises because it is usually not clear whether an ambiguity exists.
Typically, when a court evaluates whether an insurance company has a duty to defend, it may only look to the plaintiff’s complaint and the policy. The same goes for an insurance company: they should compare the allegations contained within the complaint with the terms of the policy. Courts across the country often refer to this as the “four corners” rule because they only look within the four corners of the document; they do not consider other documents when evaluating this broad duty. This seemingly logical rule makes sense because an insurer’s duty to defend is decided at the beginning of the case, long before many facts come to light during discovery. In very rare circumstances, however, an insurance company may have undisputed extrinsic knowledge of a fact that “takes the case outside the coverage and that will not be litigated at the trial of the underlying action.”
Massachusetts case law provides only one binding case in which the Appeals Court allowed the introduction of extrinsic evidence when evaluating whether an insurance company has a duty to defend. In Whelpley, the complaint alleged that a child sustained injuries from an accident involving an all-terrain vehicle; however, the complaint failed to allege where the accident occurred. The insurer disclaimed coverage because they had knowledge that the accident occurred on a public way, which was part of an exclusionary provision. The court affirmed that the insurance company was permitted to include extrinsic evidence to negate its duty to defend because the fact that the accident occurred on a public way was known by the insurer and undisputed by the insured.
If an insurer is unsure or has doubts as to whether they have a duty to defend, a suggested course of action would be to send the insured a letter, stating they will defend under a reservation of rights. A reservation of rights allows the insurance company flexibility to defend the insured, but if some fact comes to light that makes it clear the insured is not covered under the policy, the insurance company may disclaim coverage and stop its defense. This allows the opportunity for the insureds to take precautionary steps to protect their rights. If an insurance company ultimately disclaims coverage, they cannot retain any control over the remainder of the proceedings.
The duty to defend is often tied together with the duty to indemnify, but the duty to indemnify is much narrower. An indemnification provision requires an insurance company to pay its insured only when judgment is rendered against the insured and for an act or omission that is within the policy provisions. The duty to indemnify is based on the facts decided upon at trial, compared to the duty to defend, which usually only looks to the complaint and the policy.
As of 2016, only thirty-one states have adopted varying degrees of exceptions to the “four corners” rule, including Massachusetts. It appears that states are becoming more liberal with allowing more extrinsic evidence, however, usually they are very limited in what they allow. This could be beneficial to insurance companies because a poorly-drafted complaint may intentionally or unintentionally leave out key information that would immediately enable them to disclaim coverage. Also from a logic standpoint, it would make sense for an undisputed material fact that was not alleged in the complaint to be introduced if it would undoubtedly disclaim coverage; why should an insurance company use its valuable time and resources on preparing for litigation proceedings when they are certain–based on extrinsic evidence–the event was not covered?
While policyholders do need protection, and are afforded arguably more protection than insurance companies, if insurance companies are required to defend frivolous cases they should not be defending, it will ultimately cause more grief to the policyholders. First, if the insurer was defending under a reservation of rights and it came to light later in proceedings that it may be disclaimed, the policyholder would be required to take over the rest of the case. This would be a daunting task for an insured who assumes they will have a minimal involvement in the case and everything will be handled by the insurance company. Second, with increasing claims associated with accidents or catastrophic events, insurance companies may be required to defend even more claims than in the past without being able to introduce extrinsic evidence that would undoubtedly disclaim coverage. In order to offset these costs in the future, insurance companies could increase premiums, thereby causing more grief to policyholders.
Ultimately, if more courts throughout the United States allowed the limited use of extrinsic evidence–as Massachusetts does–less time, money, and efforts would be wasted by insurance companies and ultimately policyholders. In a world of change and unlikely events, insurance claims continue to soar and readily known, undisputed facts that fall within policy exclusions should act to immediately disclaim coverage.
 See Sterilite Corp. v. Continental Cas. Co., 458 N.E.2d 338, 343-44 (Mass. App. Ct. 1983) (identifying declaratory judgment appropriate measure to resolve duty to defend).
 See id. n.10, citing Vappi & Co. v. Aetna Cas. & Sur. Co., 204 N.E.2d 273, 275-76 (Mass. 1965) (construing ambiguities against insurance company).
 See Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 279 N.E.2d 686, 688 (Mass. 1972) (stating ambiguities “resolved against the insurer”).
 See Barnstable County Mut. Fire Ins. Co. v. Lally, 373 N.E.2d 966, 968-69 (Mass. 1978) (addressing ambiguity concerns when interpreting policies).
 See Doe v. Liberty Mut. Ins. Co., 667 N.E.2d 1149, 1152 (Mass. 1996) (highlighting only documents with force when examining duty to defend).
 See Water Well Solutions Service Group, Inc. v. Consolidated Ins. Co., 881 N.W.2d 285, 294-95 (Wis. 2016) (explaining meaning behind four corners rule).
 See Farm Family Mut. Ins. Co. v. Whelpley, 767 N.E.2d 1101, 1104 (Mass. App. Ct. 2002) (uncovering unusual exception to four corners rule).
 See id. (illustrating “very rare” exception).
 See id. at 1102.
 See id.
 See Whelpley, 767 N.E.2d at 1104.
 See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 788 N.E.2d 522, 538-39 (Mass. 2003) (permitting insurers to defend under reservation of rights).
 See id.; see also Salonen v. Paanenen, 71 N.E.2d 227, 230-31 (Mass. 1947) (comparing force of nonwaiver agreement to reservation of rights letter).
 See Salonen, 71 N.E.2d at 232 (describing lack of role for insurance company once coverage disclaimed).
 See A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 838 N.E.2d 1237, 1256 (Mass. 2005) (distinguishing duty to defend from duty to indemnify). “It is settled that an insurer’s duty to defend is independent from, and broader than, its duty to indemnify.” See id.
 See Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 545 N.E.2d 1156, 1157 (Mass. 1989) (explaining what indemnification provision entails).
 See id. (comparing requirements of duty to indemnify versus duty to defend), citing Desrosiers v. Royal Ins. Co., 468 N.E.2d 625, 627-28 (Mass. 1984).
 See David G. Jordan & Jeffrey J. Vita, Extrinsic Evidence: Use of Extrinsic Evidence in Determining Duty to Defend, Saxe Doernberger & Vita, P.C., http://www.sdvlaw.com/wp-content/uploads/2015/11/Extrinsic-Evidence-State-by-State-Survey.pdf [https://perma.cc/U4YG-CWK4] (surveying fifty states and their use of extrinsic evidence); Randy Maniloff, Supreme Court Says 31 States Have Exceptions to the “Four Corners” Rule for Duty to Defend, Coverage Opinions, http://coverageopinions.info/Vol5Issue8/FourCorners.html [https://perma.cc/945Z-QW6M] (highlighting recent decision discussing states allowing extrinsic evidence).
 See Jordan, supra note 18 (discussing varying degrees of evidence different states allow).
 See supra note 14 and accompanying text (explaining shift of responsibility once insurer disclaims coverage during proceedings).
 See Press Release, J.D. Power, Premium Increases Become Sticking Point for U.S. Auto Insurance Customers, J.D. Power Finds (Jun. 19, 2017), http://www.jdpower.com/press-releases/jd-power-2017-us-auto-insurance-study [https://perma.cc/64X5-U4GP] (acknowledging differences between customer service satisfaction and price satisfaction in insurance industry); Press Release, J.D. Power, Satisfaction with Property Insurance Claims Surges, Even as Number of Catastrophes Reaches 10-Year High, J.D. Power Finds (Mar. 1, 2017), http://www.jdpower.com/press-releases/jd-power-2017-us-property-claims-satisfaction-study [https://perma.cc/BAC7-7UBH] (highlighting “ten-year high” in catastrophic events, which corresponded with low satisfaction in past).