ANIMAL DAMAGE HELD NOT COVERED BY VANDALISM AND MALICIOUS MISCHIEF PERIL

ANIMAL DAMAGE HELD NOT COVERED BY VANDALISM AND MALICIOUS MISCHIEF PERIL 469_C003

ANIMAL DAMAGE HELD NOT COVERED BY VANDALISM AND MALICIOUS MISCHIEF PERIL

A bobcat gained entrance to an apartment and caused considerable damage to personal property. The tenant made claim under a renters policy for loss by "vandalism and malicious mischief," the most likely of covered named perils to be applicable.

The insured sued the insurer, when coverage was denied, and then appealed trial court judgment for the insurer. The court concluded that "a bobcat cannot develop an intent or malice," fundamental ingredients of "vandalism."

The insured argued that a reasonable person would consider damage caused by a bobcat to be covered as "vandalism," claiming a conflict existed between the policy definition of the term and a broader meaning. The policy defined the covered peril to include only "intentional and malicious damage." The insured asserted that "vandalism" in a broader sense also connotes "ignorant destruction" of property, bringing the claimed damage within the scope of coverage.

The appeal court disagreed, and stated that a reading of the policy by a reasonable person would lead to the conclusion that the peril in question would cover only intentional and malicious damage. It acknowledged that some dictionaries included "ignorant destruction of property" in definitions of "vandalism." But it noted that such definitions invariably made clear that the damage was in "conscious or intentional disregard for the rights of another."

The court determined that "vandalism and malicious mischief" could only result from an intentional act. It cited decisions to the effect that such an act requires a human mind; that an animal is incapable of intent to commit a wrongful act. An animal does not have the knowledge of right or wrong possessed by a human. The court concluded that the damage for which vandalism claim was made was not covered by the policy.

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

(MONTGOMERY, Plaintiff-Appellant v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellee. New Mexico Court of Appeals. No. 15, 786. December 22, 1994. CCH 1995 Fire and Casualty Cases, Paragraph 5083.)