As Evil as They Can Be, a Racoon Can Never Be a Vandal

Court Refuses to Allow Pro Se Plaintiff to Annoy Court

Lawyers are creative people. They will try almost anything to get money out of an insurance company. Sometimes, however, their creativity approaches stupidity and a waste of the time of a court and lawyers.

In Capital Flip, LLC v. American Modern Select Insurance Company, Civil Action No. 2:19-cv-180, United States District Court for the Western District of Pennsylvania (September 19, 2019) a USDC in Pennsylvania was faced with a creative but ridiculous attempt to find coverage for loss not one of the named perils specified in the policy.

Capital Flip, LLC (“Capital Flip”), sued asserting claims for breach of contract and insurance bad faith arising out of Defendant American Modern Select Insurance Company’s (“American Modern”) denial of insurance coverage for substantial property damage caused by racoons. Capital Flip argued that the raccoons engaged in “vandalism and malicious mischief” which is unquestionably covered by the insurance policy. Defendant countered that raccoons cannot, as a matter of law, engage in vandalism or perpetrate mischief—much less with malice.

FACTUAL BACKGROUND

Capital Flip was the owner of a dwelling located in the Pittsburgh area. In April of 2018, Capital Flip discovered that racoons had somehow entered the dwelling and caused a substantial amount of damage to the interior. The property was insured by a Dwelling Policy issued by American Modern.

The Dwelling Policy offered coverage for a limited number of “perils insured against.” The only insured peril relevant to this case covers losses arising out of “vandalism or malicious mischief.”

Capital Flip contended that the damage to its property was a result of “vandalism or malicious mischief” by the culprit racoons. American Modern denied the claim stating “since your loss was the result of an animal or animals damaging the dwelling and this is not covered in the list of perils, as stated above, there is no coverage under your policy for the loss. Therefore, your claim is respectfully denied.”

American Modern filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Capital Flip’s claims fail as a matter of law because its denial of coverage was warranted.

Capital Flip counters that the Policy is ambiguous because it does not specifically define “vandalism” or “malicious mischief.” It contends that, because those terms are undefined, they may include damage caused by racoons and/or other animals. At the very least, Plaintiff argues, the question of whether an animal can engage in “vandalism” or “malicious mischief” is one of first impression in Pennsylvania and, therefore, does not lend itself to disposition on a motion to dismiss.

ANALYSIS

The Court found that Capital Flip has failed to plead a plausible claim either for breach of contract or for insurance bad faith. Both of those claims hinge on a finding that Capital Flip was entitled to coverage under the Dwelling Policy at issue. This finding would require this Court to determine that the acts of animals — the raccoons — can reasonably be understood to constitute “vandalism or malicious mischief” as used in the insurance policy.

At its heart, this case requires a simple interpretation of the Dwelling Policy purchased by Capital Flip. Insurance policies are considered contracts and contract interpretation is generally a question of law requiring ordinary principles of contract law.

The role of a court in interpreting an insurance policy must be to ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, the court must give effect to the language of the contract. The words of the insurance policy must be construed in their natural, plain and ordinary sense. Moreover, an insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument.

The USDC found that the relevant portion of the Dwelling Policy is clear and unambiguous. Section 10 of the Policy clearly and unequivocally states that it covers direct physical loss to the property caused by “vandalism or malicious mischief.” A contractual provision is only ambiguous if it is reasonably susceptible to different constructions and capable of being understood in more than one sense. Read in the context of the Dwelling Policy, “vandalism” and “malicious mischief” are not ambiguous — especially not with regard to whether they can be construed to encompass the conduct of animals.

A term is not ambiguous merely because an insurance policy does not provide a specific definition. Rather, where a term is not specifically defined, courts apply the common law definition historically used by courts and apply it to the facts of the case. The absence of a definition of “vandalism” and “malicious mischief” does not render the terms ambiguous. On the contrary, both their common dictionary definition and their specific legal usage show that they are inapplicable to animal behavior.

For example, by its very language criminal mischief, like all crimes, requires a human actor. Animals are subject only to the laws of nature, not the Pennsylvania Crimes Code or law governing human conduct.

All of the courts which have examined whether animal damage is included within coverage for vandalism and malicious mischief have declined to interpret those terms to encompass animal behavior and held that, as a matter of law, they can only apply to human conduct. An animal is incapable of forming an intent to commit a wrongful act or to act maliciously. An animal, nonhuman, acts or reacts instinctively without knowledge of right or wrong as defined by man.

The plain and ordinary definition of the term “vandalism” only refers to intentionally destructive conduct by a human being.  Damage caused by animals — in this case, raccoons — cannot be deemed to have arisen from “vandalism” or “malicious mischief.” Both the common and legal usage of those terms presuppose conscious, willful misconduct by a human being. 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. Animals do not have conscious agency and are not subjects of human law.

The threshold premise for both of Capital Flip’s claims — that there is coverage under the Dwelling Policy for the raccoon damage — cannot stand and so, sorry, the Plaintiff won’t get paid. That’s how the contract was made. This policy does not apply when the racoons ran awry.

ZALMA OPINION

Regardless of the statements of the so-called “animal rights” organizations animals cannot subject themselves to the law, cannot be held and imprisoned for their crimes, nor can they act with conscious or malicious mischief as much as humans dislike what they do. If Capital Flip wanted coverage for damage by animals they could have asked that their insurer include such damage as one of the named perils and pay an appropriate premium if an insurer was willing to take such a risk. It did not and must stand by the contract it made.