The issue for the appeal court in this case was whether a few "insignificant" items in an otherwise empty warehouse overcame a policy vacancy clause that defined "vacant" to mean "containing no contents pertaining to operations or activities customary to operations of the building." The trial court had granted the insurance company's motion for summary judgment, concluding that by "....any reasonable interpretation of the policy language, the warehouse had been 'vacant' for 60 days prior to the fire."

The appeal court confirmed that the warehouse, last occupied by a tenant that stored unprocessed pepper for a major spice company, was damaged by fire five months after the tenant left the premises. It was undisputed that the only "non-fixtures" in the warehouse, when it was vacated by the tenant, were a small hand-operated truck left behind by the former tenant and a piece of scaffolding and a small table belonging to the building owner.

It was established in evidence that the office area was empty of furniture, supplies and records. The alarm system had been disconnected. Except for lights, heat and electricity were turned off.

The insured contended that the presence of any one of the described items would avoid the vacancy exclusion, which made reference to contents "....pertaining to operations or activities customary to occupancy of the building...." The contention was that the presence of a few items, not necessarily related to warehousing or belonging to the last tenant, rendered the exclusion inapplicable.

The court observed that, if the phrase "no contents" were interpreted as the insured insisted, it "would be for practical purposes (the elimination of) the coverage exclusion from the policy." The presence of a single light bulb would have that effect. The court quoted Bausch & Lomb, Inc. v. Utical Mutual Insurance Company, 330 Md. 758, 778 (1993) as follows:

"Unless there is an indication that the parties intended to use words in a special technical sense, the words in a policy should be accorded their 'usual, ordinary and accepted meaning' ....A word's ordinary signification is tested by what meaning a reasonably prudent layperson would attach to the term."

The court concluded that a warehouse used for industrial storage could be considered not vacant only if contents indicated current use for storage by an industrial company. "No reasonable person would believe that anyone was currently using the (warehouse) for storage based on the presence of one non-motorized hand truck and one piece of scaffolding when the building was otherwise completely empty."

The judgment of the trial court was affirmed in favor of the insurance company and against the insured.

(CATALINA ENTERPRISES, INCORPORATED PENSION TRUST, Plaintiff-Appellant v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellee. United States Court of Appeals for the Fourth Circuit. No. 95-1015. October 17, 1995. CCH 1996 Fire and Casualty Cases, Paragraph 5490.)