An arson fire engulfs a vacant house. Will the homeowners policy cover the damage? The typical fire insurance policy
excludes coverage for damage caused by
vandalism or malicious mischief if the
building was vacant for more than 30
days before the loss. Determining whether arson qualifies as vandalism or malicious mischief can be a difficult task.
Last year, three appellate courts ad-
dressed that issue and came to very differ-
ent conclusions. A court in Florida found
that the vacancy exclusion clearly excludes
damage caused by arson; a California
court said the vacancy exclusion might
apply, depending on the intent of the per-
son who set the fire; and a court in Ten-
nessee found that the vacancy exclusion
obviously does not apply to arson fires.
These courts used the same method
to interpret similar vacancy exclusions.
Because the policies did not define “fire,”
“vandalism,” “malicious mischief” or “ar-
son,” the courts looked at dictionaries to
find the ordinary, everyday meaning of
those words. They examined how terms
like “vandalism” were used throughout
the policy, not just in the exclusion.
These cases also deal with the same basic facts, because the houses were vacant
and the fires were intentionally set by
someone other than the insureds. Nevertheless, common rules of policy interpretation, applied to the same situation and
policy language, have yielded varying
opinions on whether arson is excluded as
a form of vandalism.
The Botee case (FL) —
Arson is definitely excluded
The first case was decided in February
2015, in Florida. [Botee v. Southern Fidelity Ins. Co., 162 So.3d 183 (Fla. Ct. App.
2015).] An intentionally set fire damaged
the insured’s vacant house. The insurance
company denied coverage on the grounds
Arson and the
By Brendan J. Fogarty, Esq. and Andrew P. Collier, Esq.