that the fire was excluded as vandalism
and malicious mischief.
The insured argued that the phrase
“vandalism and malicious mischief” did
not include arson. She noted that the policy’s personal property coverage listed “fire”
and “vandalism and malicious mischief”
as separate covered perils, which suggests
that fire is not the same as vandalism or
malicious mischief. Moreover, the vacancy
exclusion listed “vandalism and malicious
mischief” as excluded causes of loss, but
did not mention “fire.” Botee asserted that
this would lead an insured to believe that
an intentionally set fire was not the same
as “vandalism and malicious mischief.”
Therefore, even if someone could interpret
arson as a form of vandalism, the exclusion was ambiguous. Thus, she argued that
because an ambiguity in the policy must
be resolved in favor of coverage, the arson
damage had to be covered.
The Botee court disagreed. It analyzed
the plain and ordinary meaning of the
words “vandalism,” “malicious mischief”
and “arson.” “Vandalism” is defined in
dictionaries as “willful or malicious destruction or defacement of…property.”
“Malicious mischief” is defined as “
willful, wanton, or reckless damage to or destruction of another’s property.” Arson
is defined as “the willful or malicious
burning of property….” Because burning
something is a form of damage, destruction or defacement, arson constitutes willful or malicious damage to or destruction
or defacement of property. Therefore, the
court concluded, arson is a form of vandalism and malicious mischief, and the
vacancy exclusion applied to the arson
fire. Under Botee, arson is clearly excluded by the vacancy exclusion.
The Ong case (CA) — A deliberately
set fire might be excluded
Two months after Botee, a California
court reached a decidedly different position. [Ong v. Fire Ins. Exchange, 235 Cal.
App.4th 901 (Cal. Ct. App. 2015).] In this
case, the evidence showed that although
the fire was intentionally started, the intent was not to damage the house. The
court held that the vacancy exclusion excludes fire only if the fire was started with
the intent to cause harm.
A transient started a fire on the kitchen
floor of Mr. Ong’s vacant house. A mat-
tress lay next to the large hole the fire had
burned in the floor. There were smaller
holes burned in the floor near the door,
which could have been caused by someone
trying to throw burning wood outside.
Because the fire was intentionally set
by a trespasser, the insurance company
denied coverage on the grounds that the
fire was an act of vandalism, and the va-
cancy exclusion therefore applied. The
insured asserted that the transient start-
ed the fire in order to keep warm, not to
destroy property. Therefore, the insured
argued, this fire did not qualify as an act
The court determined that the ordinary
meaning of “vandalism” is the willful destruction of property or the destruction
of property with a desire to cause harm.
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