The Western District of Pennsylvania recently had to answer the question of whether a raccoon’s actions in destroying a property can be considered vandalism or malicious mischief under an insurance policy. The trial court found that “raccoons and their companions in the animal kingdom cannot formulate the intent needed to engage in vandalism, malicious mischief, or any other criminal or actionable conduct.”1

Capital Flip, LLC (“Capital Flip”), the Plaintiff, was insured by a dwelling policy issued by Defendant, American Modern Select Insurance Company (“American Modern”). Capital Flip discovered that raccoons had somehow entered the dwelling and caused damage to the interior. The dwelling policy offered coverage for a limited number of “perils insured against,” one of which was for “vandalism or malicious mischief.” Capital Flip sought relief under the policy based on this peril and American Modern denied coverage.

Capital Flip filed a Complaint which contained breach of contract and bad faith counts. Defendant subsequently filed a 12(b)(6) Motion to Dismiss. Capital Flip’s argument in response to the motion was that the racoons had vandalized the property and, therefore, the loss was covered. Capital Flip further argued that the policy was ambiguous because it did not specifically define “vandalism” or “malicious mischief.”

The court disagreed and found the policy to be clear and unambiguous. It reasoned that “it is well-established that a term is not ambiguous merely because an insurance policy does not provide a specific definition.”2 The court looked to both dictionary definitions and specific legal usage in coming to its conclusion. The Oxford Dictionary defined “vandal” as “a Person who deliberately destroys or damages property.” Further, criminal mischief, which intertwines the concepts of vandalism and common law malicious mischief, requires a human actor under the Pennsylvania Crimes Code.

Lastly, the court considered persuasive case law on the issue and found that all of the precedent reflected declining coverage for vandalism and malicious mischief when alleged to have been caused by an animal. In its analysis the court referred to a poem provided by New Mexico District Court Judge/Poet Steve Herrera:

Alas, it is written in the law
That an animal with the paw
Does not have the mind
To do the damage of this kind.
And so, I’m sorry, the Plaintiff won’t get paid.
That’s how the contract was made.
This policy does not apply
When the bobcat runs awry.3

Based off this case and similar cases throughout the country, an insured will not succeed in making an argument that an animal vandalized their property.

Merlin Law Group has blogged about similar circumstances but different policy issues. Please see Nicole Vinson’s blog pertaining to an alligator that entered a Florida property and whether or not the loss would be denied under a reptile exclusion. Please also see Larry Bache’s blog pertaining to raccoons and the vermin exclusion in insurance policies.
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1 Capital Flip v. American Modern Select Ins. Co., 2:12-CV-180 (W.D. Penn. 2019).
2 Id.
3 Montgomery v. United Services Automobile Association, 118 N.M. 742 (N.M. App. 1994).

  • I wrote about “vermin” years ago:

    https://www.independentagent.com/vu/Insurance/Personal-Lines/Homeowners/Property-Exclusions/WilsonVermin.aspx

    There was a clear legal consensus the the word “vermin” is ambiguous. The IIABA technical affairs committee was successful in lobbying ISO to eliminate that exclusionary wording in their homeowners policies. They revised that language to track with their commercial property form exclusion for “nesting, infestation, secretion, etc.”

    Needless to say, even those words can be ambiguous. How many animals does it take to “infest” a structure?

  • I’ve seen raccoon damage in eastern Pa. & NJ. I’ve successfully settled some raccoon claims. These claims can be large. Racconn’s usually travel up and down the house using the the corner of the house. Look for insulation on the ground as they make their way in & out of the eves. Look for damaged corner bead or down spouts from their claws. I 1st review the policy and look at the policy’s language. Some carriers cover just the structural damage, others cover the structural damage & the raccoon’s excrement. Others offer no coverage at all.
    Raccoon excrement may contain Raccoon Roundworm (Baylisascaris) This
    is a worm that does infect humans. The eggs are hard to see and will get airborne.
    These egg spores can live for years and is very dangerous to humans especially children.