Skunked again: The animal exclusion in homeowners policies
Over time, policy language has changed to be more specific and detail what exactly is excluded when it comes to animal claims.
Humans have always had some sort of relationship with nature. We keep certain animals as pets, and keep other animals to provide us with certain types of food. We like to live in areas surrounded by nature, as evidenced by the 46 million people living in the Wildland Urban Interface (WUI), which is the transition between unoccupied land and human development, such as dwellings, stores and offices. This interface isn’t just vegetation but includes a host of wild animals such as squirrels, raccoons, possums, skunks and other creatures. However, as humans move into these interface areas, the interactions between humans and the creatures becomes complicated.
Humans build nice houses, and many animals take note and decide the human dwelling would be a nice place for them to nest, too. Raccoons, squirrels, and bats in the attic, raccoons and skunks under the porch, are just some of the ways wild animals have decided to move into our dwellings and camp out.
Unfortunately, the animals aren’t the best tenants; they create their own entrances, tend to make a mess when they build nests, don’t use the bathroom, preferring to just relieve themselves wherever when nature calls, and they almost always leave the property in a worse condition than when they found it. Homeowners then have to evict these bad tenants and clean up the messes.
The homeowners policy
That’s where the homeowners policy comes in, and over time the policy language has changed to be more specific and detail what exactly is excluded. In the ISO HO 00 03 04 91 and the HO 00 03 10 00 forms, the exclusion was for “birds, vermin, rodents, or insects”. This needs to be looked at closely, as when you break it down it’s excluding certain types of creatures.
Birds
First, it excludes birds, which is fairly straightforward. As some of the excluded creatures fall into certain scientific categorizations, a quick review is in order. All living things are sorted according to the scientific categories as follows: Kingdom, Phylum, Class, Order, Family, Genus, Species. If an excluded term relates to one of these levels of categorization, then only creatures within that categorization are excluded.
Birds are of the scientific class of Aves; a cardinal and a flamingo are both Aves, although you’re not apt to have both in the backyard. But a bird is a bird, and there’s no confusion as to whether or not damage from birds is excluded as damage from any bird would be. It gets more complicated after that, as the next excluded animal in the list is vermin. But what are vermin?
Vermin
When terms aren’t defined in a policy, courts turn to a standard desk reference for the definition because that is what is available to the average insured. Merriam Webster online defines vermin as: small common harmful or objectionable animals (such as lice or fleas) that are difficult to control; birds and mammals that prey on game; animals that at a particular time and place compete (as for food) with humans or domestic animals. Once you’ve defined it, then you have to apply the definition to the creature at hand. First, few wild animals compete with humans or domestic animals for food or other purposes; an animal that moves into the attic, while looking for shelter isn’t exactly competing with a human for the dwelling. Lice and fleas are very small; skunks, raccoons, bats and others are not that small. Many are beneficial by eating insects, so objectionable can be seen as a relative term. Some people keep snakes as pets, and many people think snakes as a whole are objectionable, pet snakes included. We do not see most animals that move into attics or under porches as fitting the definition of vermin.
Rodents
The next exclusion is for rodents. Rodent is again a scientific classification, it is the order Rodentia. The order Rodentia includes animals such as rats, mice, squirrels, groundhogs, beavers, guinea pigs and hamsters. So what about raccoons and skunks? Skunks are of the class Mammalia and the order Carnivora, as are raccoons. Bats are of the class Mammalia and the Order Chiroptera. Therefore raccoons, skunks, and bats do not fall under the exclusion for rodents or vermin.
Insects
Insects are the last excluded creature in the list and insects fall into the scientific order Insecta. Bees and anything else falling into that order are excluded from coverage for damage to the dwelling.
Cases
As you can see, the exclusion is vague with many openings for confusion. In Umanoff v. Nationwide Mut. Fire Ins., 110 Misc. 2d 474 (N.Y. Civ. Ct. 1981) raccoons entered and damaged the insured’s dwelling. The insured filed a claim with Nationwide, which denied the claim because the policy excluded “vermin”. The insureds argued that raccoons were not vermin, while the insurer argued that raccoons were not listed in the covered perils within the policy. The court granted the insured’s motion for summary judgment regarding the loss to real property and held that the term “vermin” was capable of being interpreted more than one way, finding in favor of the insured because of the ambiguity.
In Jones v. American Economy Ins. Co., 672 S.W.2d 879 (Tex. App. 1984), the insureds had filed a claim with their insurer for damage caused by a squirrel that entered the home. The insurer denied the claim based on the “vermin” exclusion. The insureds sued and the trial court concluded that a squirrel is a “vermin” as the term is used in the policy. On appeal, the court reviewed other cases with related claims and determined that “vermin” has no established meaning in insurance law, and that cases in other jurisdictions are divided on the question. The court then concluded that the term does not have a simple, plain, and generally accepted meaning and that it is open to more than one interpretation, and is therefore ambiguous. The court held that the term “vermin” does not include squirrel and that the damage done to the insured’s home was not excluded under the policy. The trial court’s judgment was reversed and judgment was rendered in favor of the insureds.
It’s important to note that in Jones the court in part looked at the disparity in court rulings as adding to the idea that the term vermin is ambiguous and that the insureds should get the benefit of the doubt.
Language revision
In 2011, ISO updated the homeowners policy, and in doing so clarified this particular exclusion. The vague “birds, vermin, rodents, or insects” language was changed to read “birds, rodents, or insects” and a much clearer exclusion for “nesting or infestation, or discharge or release of waste products or secretions, by any animals” was added. This removes the issues surrounding determining whether a creature is a bird, vermin or rodent, and makes it clear that damage caused by the action of the animals nesting, infesting, urinating, defecating, or otherwise emitting any secretions such as skunk spray is excluded.
Ensuing losses
This clarification allows insurers to clearly exclude coverage when raccoons, squirrels, or bats invade the attic or the skunk under the porch is startled and sprays. However, there is another clause that needs to be reviewed, that of ensuing losses.
The list of exclusions ends with the following clause: Under 2.b. and c. above, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered.
With this clause, any ensuing loss would be covered. For example, if a skunk sprayed a dog who then ran into the house and rolled on the wall-to-wall carpet, rubbed against the closet door and otherwise got skunk odor on various surfaces, that would be an ensuing loss. The skunk was not in the house, the skunk sprayed the dog. The stinky dog getting skunk spray on the property is an ensuing loss.
Owned animals
This takes us to the exclusion below the nesting, infestation exclusion, which is for “animals owned or kept by an “insured””. Wouldn’t that then exclude the actions of the now stinky dog?
Ejusdem generis principle
Remember that exclusions are to be read narrowly. This exclusion for animals owned by an insured occurs in a list of exclusions that for the most part are for things that occur over time – wear and tear, marring, deterioration, seepage of pollutants, settling or shrinkage of bulkheads, patios, etc. The principle of ejusdem generis also applies. Ejusdem generis is used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Since the list of exclusions specifically excludes wear and tear, deterioration and other things that can be expected to occur over time or that cause damage with repeated exposure, then the exclusion for damage caused by animals applies to repeated damage over time, such as the dog scratching at the door to get out, eventually damaging the door. A dog damaging the floor or door because that’s where he scratches to go out is along the same lines as the roof needing to be replaced due to age. The dog being skunked and running through the house is like the roof being damaged by a falling tree; it is a one-time unexpected event, and should be covered.
Conclusion
We love our pets, and like to look at other wildlife in the yard. When the interactions become problematic is when the animals come in uninvited and cause damage to our homes. While the exclusion eliminates coverage for many of these encounters, there is coverage for some instances. As always, the policy should be read carefully, as different insurers use different, but often similar, policy language.
Lastly, for those whose pets have had an unfriendly encounter with a skunk, we provide the recipe to remove skunk odor. The odor consists of various chemical molecules and they must be broken down in order to be removed. It can be used on textiles too, just test a spot first to be sure the colors don’t run. One quart of 3 % hydrogen peroxide (from drug store) ¼ cup of baking soda (sodium bicarbonate) and a teaspoon of liquid detergent. Mix all ingredients, but don’t mix until ready to use; the mixture is unstable and creates oxygen and may break a container if you try to contain it. This is enough to wash a small dog, say Jack Russell terrier size.