This is the second installment in our two part blog post analyzing a recent case involving the applicability of the vacancy exclusion in a homeowner’s policy to a loss caused by fire. In Part I of this blog, we provided an overview of the facts and the majority’s decision. The conclusion of this blog post analyzes the dissenting opinion and outlines the important lessons policyholders can glean from this case.
The dissenting judge took issue with the majority’s assumption that “malice” required an actual desire to cause harm or an intent to injure someone. The dissent indicated that a more appropriate reading of the policy involved equating “willful” with “intentional” in terms of setting the fire. In other words, the purpose of the provision was to exclude acts that were deliberate rather than accidental.
The dissenting opinion also took issue with the majority’s reliance on evidence the vagrant made an attempt to stop the fire as raising a jury question regarding the transient’s intent to damage the home. The act of starting the fire in the kitchen demonstrated “willful” (i.e., intentional) defacement of the property. Even if the vagrant intended to confine the fire to the floor of the kitchen, the flooring would inevitably be damaged once the blaze was started according to the dissenting judge. Whether or not the purpose of the fire was to generate warmth or burn down the house was irrelevant under this analysis.
This case offers a number of valuable lessons for homeowners. The most obvious issue is that a residence should be made to “look” occupied even if no one is living inside. This can be accomplished by leaving on lights rather than having the electricity turned off, or even leaving some furnishings within the home. Even if someone is occupying the home, the vacancy exclusion does not apply if the insured takes satisfactory steps to confirm that the property does not look like it is sitting empty.
The situation often arises when a home is listed for sale or a renter has vacated the premises. In either situation, the owner of the property should implement measures to make it appear that the home is occupied. A home that appears abandoned often constitutes an invitation to criminals, delinquents, vandals, and others with malicious motives. The steps taken to make the home look occupied do not need to be costly or elaborate. Examples of signs that might prevent exclusion based on vacancy include:
- Vegetation and landscaping being maintained
- Furnishings inside the home visible to those looking in windows while driving or walking past the home
- Lights being turned on perhaps with use of a timer
Another important takeaway from this case involves the importance of legal representation from an experienced insurance claims lawyer. Many policyholders relinquish claims because an insurance carrier points to policy language, conditions, or an exclusion that appears to justify denial of a claim. However, any ambiguity in an insurance policy typically will be construed against the insurance carrier. An experienced Florida insurance claims lawyer will have the expertise and knowledge to recognize potentially unclear provisions that might not look ambiguous to a layperson. Thus, an insured might have a valid claim despite what appears like a reasonable basis for denial under the language of the policy.
A final takeaway involves families or individuals traveling for work or on a long vacation. Although a temporary work assignment or prolonged travel does not mean that you intend to vacate your home, the key is whether the home appears unoccupied. If no one will be in the home for a period longer than thirty days, an insured must make sure that the house is not “packed up” or that newspapers do not accumulate in the driveway. These can be signs that a home is unoccupied, which an insurance company might attempt use to deny a valid claim under a vacancy exclusion.
Our bad faith insurance attorney J.P. Gonzalez-Sirgo invites you to contact us if you are having difficulties with your insurance company. J.P. Gonzalez-Sirgo handles claims against insurance companies in Miami and throughout Florida. The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and case evaluations. No Recovery, No Lawyer Fees. Call 305-461-1095 or Toll Free 1-866-71-CLAIM.