Wade Clark Mulcahy LLP

The Western District of Pennsylvania recently decided an unusual case in <a href="https://www.wcmlaw.com/wp-content/uploads/2019/11/Capital-Flip-v.-American-Modern-Select-Insurance-Co..pdf">Capital Flip v. American Modern Select Insurance Co.</a>: whether a raccoon damaging a house was covered under a dwelling insurance policy pursuant to a vandalism or malicious mischief rider.

Specifically, this case presents as a dispute between Capital Flip LLC and its insurer, American Modern Select Insurance Co. pursuant to a homeowners’ dwelling policy. At some point it was discovered that raccoons had entered the property and did what racoons normally do (malicious or not) – cause substantial damage. Capital Flip subsequently sought coverage under the policy, pointing to a clause covering losses arising from “vandalism or malicious mischief.” American Modern denied coverage and this lawsuit followed.

American Modern filed a motion to dismiss, contending that damage caused by raccoons simply could not be covered under the vandalism or malicious mischief clause, as animals cannot have subjective intention. Capital Flip argued that the policy did not define “vandalism or malicious mischief”, thus rendering it possible those terms encompassed damage by animals. The Court agreed with American Modern, holding that under reasonable definitions of “mischief” and “vandalism”, a subjective intent combined with an intended unfavorable result was required – and raccoons simply did not have that intellectual ability. Put simply, despite creative thinking, these terms require human actions.

Despite the popular opinion that racoons are malicious, this is yet another instance where the Courts simply disagree.

Thanks to Matthew Care for his contribution to this post.  If you have any questions, please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a>.