Definition of vandalism

Vandalism loss scenarios

Reasons for broad interpretation

 Definition of Vandalism

 Unlike the commercial property causes of loss forms, which define vandalism as "willful and malicious damage to, or destruction of, the described property," vandalism and malicious mischief are not defined terms in the ISO homeowners forms. Therefore, the form is open to misunderstanding between insureds and insurers.

 Absent a policy definition of vandalism, the common ordinary dictionary meaning of the word is used. According to Webster's Collegiate Dictionary, 10th ed., vandalism is "the willful or malicious destruction or defacement of public or private property." Black's Law Dictionary defines vandalism as "such willful or malicious acts as are intended to damage or destroy property."

 In Stack v. The Hanover Ins. Co., 329 So. 2d 561 (Ala. App. 1976), the court recognized that "the word vandalism is derived from the Vandals, a Germanic people who in the 4th and 5th centuries overran much of Europe and Africa, willfully and purposely destroying many objects of art and literature."

 Courts have said that, within dwelling policies, the willful and malicious destruction of property must have been either intentional or done in such a wanton and reckless disregard for the rights of others as to equal intent. See Livaditis v. American Cas. Co. of Reading, Pa., 160 S.E.2d 449 (Ga. App. 1968). However, in Mitchell King, Jr., v. North River Insurance Company, 297 S.E.2d (S.C. 1982), the court stated that vandalism should not be construed to apply only to hostile or willful destruction, but should also be extended to its popular meaning, which includes any unusual destruction caused by doing of a wrongful act. In this case a beer can and whiskey bottles on the roof blocked the downspout of a roof which caused water to accumulate and the roof to collapse.

 Several cases concerning damage caused by animals illustrate that the ability to form intent or a disregard for the rights of others is an important element in defining vandalism. One court said that "a deer is not capable of an intentional or malicious act," and therefore the destruction of property it caused could not be considered vandalism. See Roselli v. Royal Ins. Co., 538 N.Y.S.2d 898 (N.Y. App. Div. 1989). Likewise, the court in Montgomery v. United Services Automobile Assoc., 886 P.2d 981 (N.M. App. 1994) ruled that a bobcat lacked the mental capacity to inflict either malicious or ignorant damage.

 The willful element of the definition implies that the act is voluntary and intentional. Because the perpetrators of vandalism are often unknown, or at least uncooperative if caught, it may be difficult to establish their destructive intent.

 Some acts are clearly vandalism, such as spray painting nasty words on someone's garage door. But, as the situation crosses from where the act and the resulting damage are intended (as in the spray painting example), to situations where the act but not the resulting damage is intended, the concept blurs. Further confusion ensues as the second group of situations can be broken down into two sub-groups: intended actions with unintended but reasonably anticipated damage; and intended actions with unintended and not reasonably anticipated damage.

Vandalism Loss Scenarios

 •Scenario #1: An insured discovers that some kids damaged a hedgerow border between properties in forcing their way through the hedge and then tied the branches up with twine in an apparent attempt to hide the broken branches (intended action with unintended but reasonably anticipated damage). The insured claims for vandalism damage under his HO policy, but the insurance company questions whether this damage can correctly be considered vandalism inasmuch as the intent to damage the property seems to be lacking.

•Scenario #2: Same as #1, but with the difference that the loss is to tree branches damaged when the kids climbed the trees to get apples and misjudged the strength of the limbs (intended action with unintended and not reasonably anticipated damage). Again, the insured makes a vandalism claim, which the company denies due to the lack of intent in damaging the trees.

 •Scenario #3: A roofer pulls up to a house while no one is home and goes to work dismantling the roof in order to put on a new one. After pulling off the shingles on a large part of the roof, the roofer notices he's at the right number, but on the wrong street. He covers the damage with a thin tarp, collects the loose shingles, throws them in his truck, and leaves. The insured doesn't notice until two days later when heavy rains damage the property (intended action with unintended but reasonably anticipated damage). The claims handler is resistant to paying the claim under the vandalism peril because the cause of damage was negligence and there was no intent to purposely damage the roof.

Are any of the above scenarios covered by the vandalism peril? Scenarios #1 and #3 apparently qualify as covered under the vandalism peril, and #2 might be.

 Reasons for Broad Interpretation

The item that leaps to mind immediately as important in the dictionary definitions of vandalism is that the conjunction in the definition is or and not and. Therefore, vandalism can be either willful or malicious destruction, but does not have to be both.

That emphasizes the question of what constitutes willful damage? Willful means "done with will," or "done purposefully." If an act is done willfully, then the act need not be malicious in order to be considered vandalism.

Tested against this formula, in the three scenarios the kids broke the hedgerow branches and tied them up to avoid detection and the midnight roofer took up the shingles and carted them away on purpose. While malicious intent might not be present under any of the facts, the purposefulness of committing the acts meets the "willful" part of the definition. Only where the kids climbed the tree to pick apples and broke limbs would the willful damage test not be met.

In addition, the way the vandalism peril is phrased in the policy strengthens the idea that vandalism may be something other than a malicious act. The peril covers vandalism or malicious mischief. If all vandalism requires a malicious act, why does the peril cover both vandalism and malicious mischief?

Can't it be argued that a policy covering solely malicious mischief would be sufficient to include coverage for acts of vandalism, if indeed, vandalism requires a malicious intent? As both terms are used in the perils part, there must be some identifiable distinction between vandalism and malicious mischief. As vandalism's two-pronged definition includes both malicious and willful acts, then that distinction might be that malicious mischief requires a malicious intent, but not all vandalism acts require maliciousness—willfulness will suffice.

Requiring an insured to produce evidence of the subjective intent of the actor places quite a burden on the insured, particularly where the insured's property has been damaged in what could reasonably be argued as an act of vandalism. The damage has to be looked at from the reasonable standpoint of the insured, and not from the (perhaps unprovable) subjective intent of the perpetrator of the damage.

The lack of policy definitions for vandalism and malicious mischief has led to a wide contrast in how courts interpret the terms. Some courts have ruled that arson is vandalism; others have said that arson is not. Some courts have found that damage caused by objects being thrown on a roof, which in turn led to water buildup and eventual collapse of the roof, was the result of vandalism. Other courts have not.

As a matter of policy, the insured should be granted the benefit of the doubt, and not placed in a position of having to prove a subjective intent of a perhaps unidentifiable person. This is important for a number of reasons: first, it's fair; second, it aids the public perception of the industry; third, the insurance company offers the contract, which the insured must either take or leave (a contract of adhesion, in legal terms), and therefore any and all ambiguities are resolved in the insured's favor; and fourth, if a company wants to nail down a definition of vandalism for policy purposes, it can easily do so by drafting and including appropriate policy language.