December 18, 2019 ADVENTURES IN THE LAW

Vandalism Is a State of Mind

Who was that

By Norman G. Tabler, Jr.

Put yourself in the position of this Pittsburgh-area homeowner: One day you return home and find that the interior of your house has been damaged almost beyond recognition. The seriousness of the damage is matched only by its senselessness. It’s as though the culprits have wrecked your home simply for the sake of wrecking it.

Neighbors report that all the culprits had black masks across their faces.

Your distress is allayed somewhat by the knowledge that you carry homeowner’s insurance. What’s more, the policy expressly includes damage caused by “vandalism or malicious mischief.” You think to yourself, “If ever there was a case of vandalism or malicious mischief, this is it.”

But when you submit your claim, the carrier denies it by return mail, asserting that the damage is not a result of “vandalism or malicious mischief.” You point out that none of the three policy exclusions to the vandalism or malicious mischief coverage—glass, theft, and vacancy--is applicable, but the carrier will not budge.

When negotiations get you nowhere, you take the matter to state court, suing the carrier for breach of contract and for insurance bad faith. The carrier makes a federal case of it—literally—by removing the suit to the District Court for the Western District of Pennsylvania.

To your astonishment, the District Court throws your case out, readily granting the carrier’s motion to dismiss for failure to state a cause of action.

What’s the explanation? How can the court agree with the carrier that your home has not been damaged by vandalism or malicious mischief?

The explanation is that the culprits—the ones with black masks—were raccoons.

It’s undeniable that raccoons can wreak the same level of damage as a vandal or malicious mischief-maker. You home is proof of that. But the policy provision at issue doesn’t cover all damage—only damage by vandals or mischief-makers. And only humans are capable of being vandals or malicious mischief-makers. Why? Because only humans can formulate the intent that is a necessary component of the tort or crime of vandalism or malicious mischief.

It turns out that this question--whether damage caused by a wild animal is covered by vandalism insurance--is not one of first impression. In dismissing your case the court cites opinions reaching the same conclusion for damage caused by a deer and by a bobcat.

The judge in the bobcat case was so taken with the issue that he waxed poetic, writing:

Alas, it is written in the law
That an animal with the paw
Does not have the state of mind
To do the damage of this kind.

Montgomery v. United Services Auto. Assn, N.M. App. 1994.

The black-masked culprits that wrecked your home are immune from charges of vandalism and malicious mischief.

The case is Capital Flip, LLC v. American Modern Select Ins. Co., W. D. Penn. (2019).


Norman  G. Tabler, Jr. is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm .