Some courts across the country have determined whether arson is included within an exclusion for "vandalism and malicious mischief." This issue arises under the vacancy type of exclusion within property insurance policies. Florida appellate courts had not spoken directly on this issue, until just recently.1
The case involved an intentionally set fire (arson) at a property vacant for over thirty consecutive days before the loss. The policyholder filed a claim with Southern Fidelity, which denied coverage claiming the intentionally set fire was an act of "vandalism and malicious mischief" and excluded by the vacancy exclusion from the policy since it was vacant for thirty consecutive days before the loss. The policyholder maintained that the vacancy exclusion provision "vandalism and malicious mischief" did not refer or reference "fire" or "arson" and so the policy should be interpreted in favor of coverage for the policyholder. The trial court determined the terms "vandalism and malicious mischief" encompassed arson within its plain and ordinary meaning and that the insurance carrier was correct in denying coverage.
The appeal followed to the 5th District Court of Appeal ("5th DCA") of Florida. The appellate court noted that:
Webster’s Dictionary defines ‘vandalism’ as ‘willful or malicious destruction or defacement of public or private property’ and ‘malicious mischief’ as ‘willful, wanton, or reckless damage to or destruction of another’s property.’ Webster’s Tenth New Collegiate Dictionary 702, 1301 (10th ed. 2000). ‘Arson’ is defined as ‘the willful or malicious burning of property (as a building) esp. with criminal or fraudulent intent.’ Id. at 64. Indeed, Botee concedes that ‘[a] fair argument can be made that arson is a form of vandalism.’ However, she argues that the Policy is ambiguous because the vacancy exclusion in Coverage A does not specifically refer to arson or fire. Based on the definitions of the words, most courts hold that the destruction of property by an intentionally set fire is encompassed within the term ‘vandalism and malicious mischief.’
The court would not look to coverage C personal property provisions mentioning fire or lightning and interpret those coverage C provisions to assist with the meaning to the terms within coverage A since coverage C was not at issue.
The 5th DCA held that the vacancy exclusion is clear on its face and arson is included with the terms "vandalism and malicious mischief." I have always thought of vandalism or mischief as something short of intentionally setting a fire. However, this new ruling is the first of its kind from a Florida appellate court holding that arson is included within undefined terms of vandalism and malicious mischief.
1 Botee v. Southern Fidelity Insurance Co., No. 5D13-3235, 40 Fl. L Weekly D 368a (Fla. 5th DCA Feb. 6, 2015).