October 7, 2019
The U.S. District Court for the Western District of Pennsylvania has dismissed the case of an insured against an insurance company after making the conclusion that the claim the insured's made that their dwelling had been damaged by raccoons engaging in "vandalism and malicious mischief" was not covered by the policy. The case is Capital Flip, LLC v. Am. Modern Select Ins. Co., No. 2:19-cv-180 (W.D. Pa. Sept. 19, 2019).
In 2018, Capital Flip LLC, (Capital Flip) sued its property insurer American Modern Select Insurance Co. (American Modern) for denying coverage after a raccoon vandalized an office near Pittsburgh "causing a substantial amount of damage." American Modern moved to dismiss arguing that raccoons could not, as a matter of law, engage in vandalism or perpetrate mischief. Further, they definitely could not perpetrate malicious mischief as required by the language of the policy.
Capital Flip argued that the policy was ambiguous because two relevant terms, "vandalism" and "malicious mischief" were both undefined in the policy. It argued that, because the terms were undefined, they may include damage caused by raccoons or other animals. Capital Flip argued that at the very least, the question of whether an animal could "vandalize" or commit "malicious mischief" was an issue of first impression in the Pennsylvania court and did not lend itself to a motion to dismiss.
The district court granted the motion noting in the decision that, in order to find coverage, it would have to decide that acts of animals, in this case raccoons, could reasonably be understood to establish "vandalism or malicious mischief" as used in the insurance policy. The court found that "principles of contract interpretation" precluded this finding. Although there was no definition in the policy for either vandalism or malicious mischief, that lack of definition did not render the terms ambiguous. Contrarily the court said that both their "common dictionary definition and their specific legal usage" rendered the two terms inapplicable to animal behavior and required a human actor. The district court observed that animals were subject only to the laws of nature, not to laws governing human conduct.
Therefore, damage caused by animals could not be deemed to have arisen from "vandalism" or "malicious mischief" both of which surmise "conscious, willful misconduct by a human being" and the district courts conclusion that the premise for Capital Flip's claims that there was coverage under the policy for the raccoon damage, could not stand.
Editor's Note: Several other courts have examined damage caused by animals and whether or not that damage is included within coverage for vandalism and malicious mischief. Those courts have also decided not to interpret the terms to encompass animal activity and held that they only apply to human activity as a matter of law.
Vandalism and malicious mischief are not the only legal place where the distinction between humans and animals is important. In the case of Naruto, the macaque who took his own selfie, the United States Copyright Office published an opinion that "only works created by a human can be copyrighted under United States law."
More info about raccoons and insurance coverage can be found in the following articles.