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The insured argued the carrier’s policy provided coverage for property damage caused by raccoons. Specifically, it asserted the policy’s language covering vandalism and malicious mischief applied, i.e., the raccoons should be treated as vandals having malicious intent in wreaking havoc inside the insured dwelling.  This reading was possible because the terms vandalism and malicious mischief were undefined in the policy, and Pennsylvania’s courts had never determined if those terms could apply to animals.

The court rejected these arguments, and the notion that the absence of definition in the policy could open the door to meanings outside of commonly understood usage.

The court analyzed, at significant length, common law, dictionary definitions, and statutes using the terms vandalism or malicious mischief.  The court concluded that vandalism could only be the act of human beings. Likewise, animals could not have malicious intent. Rather, malice as used in an insurance contract, or anywhere in the law, is a human quality. As the court observed, “[b]y its very language criminal mischief, like all crimes, requires a human actor. Animals are subject only to the laws of nature, not the Pennsylvania Crimes Code or law governing human conduct.”

The court cited a New Mexico case, involving a bobcat, reaching a similar conclusion. The  court quoted the New Mexico judge’s poetic conclusion summarizing his opinion on feline mentation, which the Pennsylvania court found good for raccoons too:

“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.”

In sum, there was no coverage. Thus, there could be no bad faith.

[The court did not mention that the original “Vandals” were human beings, most famous for sacking Rome in 455 (hence the term vandalism).

For some interesting reading on raccoons, this recent article describes the destructive risks raccoons pose to the world, and how they too have now reached Italy.]

Date of Decision: September 19, 2019

Capital Flip, LLC v. American Modern Select Insurance Co., U. S. District Court Western District of Pennsylvania Civil Action No. 2:19-cv-180, 2019 U.S. Dist. LEXIS 165422, 2019 WL 4536164 (W.D. Pa. Sept. 19, 2019) (Stickman, J.)