After American Modern denied the claim, Capital Flip sued.

American Modern moved to dismiss, contending that raccoons could not, as a matter of law, engage in vandalism or perpetrate mischief – much less malicious mischief as required by the policy.

Capital Flip countered that the policy was ambiguous because it did not specifically define "vandalism" or "malicious mischief." It contended that, because those terms were undefined, they may include damage caused by raccoons or other animals. At the very least, Capital Flip argued, the question of whether an animal could engage in "vandalism" or "malicious mischief" was one of first impression in Pennsylvania and, therefore, did not lend itself to disposition on a motion to dismiss.

The District Court's Decision

The district court granted the motion.

In its decision, the district court explained that, to find coverage, it would have to decide that the acts of animals – the raccoons – could reasonably be understood to constitute "vandalism or malicious mischief' as used in the insurance policy. It held that "principles of contract interpretation" precluded such a finding.

The district court found "vandalism" and "malicious mischief' were "not ambiguous," especially not with regard to whether they could be construed to encompass the conduct of animals.

Even the absence of a definition in the policy of "vandalism" and "malicious mischief' did not render the terms ambiguous, according to the district court. On the contrary, it said, both their "common dictionary definition and their specific legal usage" showed that they were inapplicable to animal behavior and required a "human actor." Animals, the district court observed, were subject "only to the laws of nature, not the Pennsylvania Crimes Code or law governing human conduct."

Therefore, the district court said, damage caused by animals – in this case, raccoons – could not be deemed to have arisen from "vandalism" or "malicious mischief," both of which presupposed "conscious, willful misconduct by a human being."

As such, the district court concluded, the threshold premise for Capital Flip's claims – that there was coverage under the American Modern insurance policy for the raccoon damage – could "not stand."

The case is Capital Flip, LLC v. American Modern Select Ins. Co., No. 2:19-cv-180 (W.D. Pa. Sept. 19, 2019). Attorneys involved include: For CAPITAL FLIP, LLC, Plaintiff: Brad N. Sommer, LEAD ATTORNEY, Sommer Law Group, PC, Pittsburgh, PA. For AMERICAN MODERN SELECT INSURANCE COMPANY, Defendant: Steven J. Schildt, LEAD ATTORNEY, Post & Schell, Philadelphia, PA; Jeffrey M. Brenner, Post & Schell, P.C., Philadelphia, PA.

Insurance Coverage Law Center Comment

Other courts that have examined whether animal damage was included within coverage for vandalism and malicious mischief have declined to interpret those terms to encompass animal behavior and have held that, as a matter of law, they only applied to human conduct.

In Stack v. Hanover Insurance Co., 329 So. 2d 561 (Alabama Ct. App. 1976), the Alabama court rejected the argument that damage caused when a deer crashed through a glass door and caused substantial interior damage before jumping out of a bedroom window resulted from "vandalism or malicious mischief." The court observed that an animal, such as a deer, was "incapable of forming an intent to commit a wrongful act or to act maliciously." Rather, the court said, the deer reacted "instinctively without knowledge of right or wrong."

In Roselli v. Royal Insurance Co., 142 Misc.2d 857 (N.Y. Sup. Ct. Monroe Co. 1989), the court granted summary judgment in favor of an insurer on the insured's claim that damage caused by a deer resulted from "vandalism or malicious mischief." The court concurred with "existing legal precedent to the effect that vandalism and/or malicious mischief must be perpetrated by a human actor."

In Montgomery v. United Services Automobile Association, 886 P.2d 981 (N.M. Ct. App. 1994), the New Mexico court of appeals rejected a similar claim for damage caused to the plaintiff's property by a bobcat. The appellate court's analysis focused on the plain and ordinary definition of the term "vandalism" and held that it only referred to intentionally destructive conduct by a human being. In affirming the dismissal of the claim against the insurer, the appellate court quoted the following from the decision of the trial court:

Alas, it is written in the law

That an animal with the paw

Does not have the mind

To do the damage of this kind.

And so, I'm sorry, the Plaintiff won't get paid.

That's how the contract was made.

This policy does not apply

When the bobcat runs awry.