provide coverage for the defendants’
claimed loss arising from the explosion
The trial court found that the subject
premises had been vacant for more than
30 consecutive days at the time of the
explosion and fire and, accordingly, that
the defendants’ loss fell squarely within
the vandalism exception in the insurance
policy. The trial court also rejected the
defendants’ argument that the explosion
and fire was an “ensuing loss” and, thus, a
covered loss under the policy despite the
vandalism exception and that the defendants failed to meet their burden of establishing that the policy’s ensuing loss provision was applicable in the present case.
In determining whether the terms of
an insurance policy are clear and unambiguous, a court will not torture words
to import ambiguity where the ordinary
meaning leaves no room for ambiguity.
Similarly, any ambiguity in a contract
must emanate from the language used in
the contract rather than from one party’s
subjective perception of the terms.
The Random House Webster Unabridged
Dictionary defines “vacant” as “having no
contents; empty” and, with regard to a
dwelling specifically, as “having no tenant
and devoid of furniture, fixtures.”
Although no appellate court in Con-
necticut has had the opportunity to
construe the term “vacant” in the con-
text of an insurance policy exception to
coverage, courts in other jurisdictions
that have considered the very issue have
applied a definition very similar to the
definition applied by the trial court, and
which, although not binding on a Con-
necticut court, are persuasive and consis-
tent with the dictionary definitions.
The plain and ordinary meaning of
vacant is that the structure is not lived in
and lacks the basic amenities for human
The vandalism exception expressly
provides that losses caused by vandalism or theft are not covered “if the dwelling has been vacant for more than [ 30]
consecutive days.” The “dwelling” is described in the policy as the structure used
principally for dwelling, meaning the
house, including any attached structures.
The defendants’ garage was unattached
and thus, not part of the dwelling.
Viewed in context of the policy as a
whole, the court of appeal concluded that
the term “vacant” as used in the vandalism exception is susceptible to only one
reading and is not ambiguous. Consistent
with the intent of the parties, a vacant
dwelling is one that is unoccupied and
does not contain items ordinarily associated with habitation, such as furniture,
fixtures or personal property. The definition of “vacant” applied by the trial court
was therefore legally and logically correct.
Having so concluded, the court of appeal
concluded that the defendants’ house had
been vacant for more than 30 consecutive
days prior to the claimed loss.
The plaintiff argued that the court cor-
rectly determined that the policy’s ensu-
ing loss provision did not apply, arguing
that “the ensuing loss provision only ap-
plies when an excluded peril sets in mo-
tion a covered peril, and the trial court
determined as a factual matter that all of
the damage to the dwelling was caused
by the excluded peril of vandalism, mali-
cious mischief, and theft. Since there was
no second covered peril to trigger the
ensuing loss provision, the court of ap-
peal found no error with the trial court’s
conclusion that the defendants’ claim was
not entitled to coverage under the policy’s
ensuing loss provision.
The owners of the property, the insureds, knew that their rental dwelling
had been vacant for more than a year.
They did nothing to advise their insurer
of the vacancy, nor seek coverage for the
increased risk of loss brought about by
the vacancy. Here, the “ensuing loss” argument failed because the insureds could
not prove to the court that the ensuing
explosion and fire were separate and
apart from the vandalism and theft that
allowed the house to fill with propane.
It is standard language in almost every
first-party property policy that there is
no coverage if the insured increases the
risk of loss by, among other things, allowing the property to be vacant and unoccupied. If the insureds had advised their
insurer of the vacancy, they might have
received coverage if they added security
with burglar and fire alarms or secured
They did not.
Barry Zalma, Esq., CFE, is an insurance
coverage attorney, consultant and expert
witness. He recently joined FC&S as a
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