We have a consumer inquiry involving damage done to a rental property by a tenant. The dwelling was insured under a DP-3 form, 10/00 edition. The insurer determined that some of the damage was caused by “hard living” by the tenant. When questioned, the insurer defined hard living as wear and tear, deterioration and marring. The insurer found some of the damage appeared to be vandalism, but occurred at different times, so the insurer applied a deductible to each separate incident identified.

The DP-3 form does not appear to have any language that specifically identifies an occurrence, or that says a deductible applies to each occurrence. Further, there may be differing interpretations regarding what constitutes wear and tear.

We would appreciate your analysis so we may better advise the consumer.

Oregon Subscriber

The terms vandalism, occurrence, and wear and tear are not defined in the policy, so we go to the dictionary. Merriam Webster Online defines occurrence as something that occurs, happens, or takes place. While there is no reference to time in the definition, the synonyms do contain time references; event, incident, episode all relate to a distinctness or brief duration of an occurrence. In your situation, damage caused at different times would be different occurrences, even if the same cause of loss occurred. For example, if there's a fire in the attic on Monday and a fire in the basement on Friday, that would be two separate occurrences. Even if the same person started the fires with candles, the events happened at different times and locations.

The loss settlement provisions indicate that coverage for property damaged under coverages A or B is subject to a deductible. While it does not specify that a deductible is applied per loss, it also does not state that only one deductible is taken per policy period regardless of the number of losses. It's reasonable to expect that for each loss a deductible would be applied.

Vandalism is defined by Merriam Webster as willful or malicious destruction or defacement of public or private property. Note that vandalism needs to be willful or malicious, not both. The tenant taking down the wallpaper in an attempt to redecorate is a willful act and if it results in the defacement or destruction of property, vandalism. The intent may be to redecorate, but the result is damage. Not everyone knows how to properly remove wallpaper.

Wear and tear is defined as the loss, injury, or stress to which something is subjected by or in the course of use, and can be different for different families. A retired couple with no pets will probably not cause much wear and tear on property, whereas a family with 5 children, 3 dogs and 2 birds may wear the property down quickly. Wear patterns in the carpet or floors to and from the doors where the children and animals go in and out, children roughhousing in the den may cause wear on the carpet and walls, and marks from various types of sports equipment throughout the house would all be wear and tear. “Hard living” is not vandalism; the family with the children and pets will likely cause much more wear much faster than the older retired couple will. It is still wear and tear, unless the action was willful or malicious.

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