Fire damage to a home can constitute one of the most devastating forms of loss, often resulting in a total loss.  While homeowner’s insurance policies generally cover fire damage, the situation can get more complicated if the insurance company alleges the fire was intentionally set.  Although an insurance carrier might contend that a residential fire was intentionally set to intimidate an insured, there are other ways that an arson allegation can be used to deny a claim.  In the recent 5th District Court of Appeals case of Botee v. Southern Fidelity Insurance Company, the court found that coverage for a fire was excluded under the vacancy exclusion related to vandalism and malicious mischief.

The insured’s home was destroyed by a fire that was intentionally set after the home had been vacant for more than thirty consecutive days.  When the insured submitted a claim for coverage, the insurance carrier denied the claim based on the contention that coverage was excluded under the vacancy exclusion.  This provision of the policy excluded coverage for “vandalism or malicious mischief” if the home was unoccupied or vacant for thirty days or longer immediately preceding the loss.  There was no dispute that the residence was unoccupied for more than thirty days prior to the fire.  The insured contended that the policy was ambiguous, so the policy should be construed to provide coverage.  The trial court granted summary judgment for the insurer based on this exclusion, and the appellate court affirmed this ruling.

The 5th DCA acknowledged that the policy must be interpreted to provide coverage if the policy was subject to an interpretation that would grant coverage and a reading that would limit coverage.  The court noted that neither the term “arson” nor the phrase “vandalism and malicious mischief” were defined by the policy.  Under these circumstances, the court indicated that the terms are interpreted according to their ordinary meaning based on legal and non-legal dictionary definitions.  The court indicated that Webster’s Dictionary defines “vandalism” as “willful or malicious destruction or defacement of public or private property.”  “Malicious mischief” is defined as “willful, wanton, or reckless damage to or destruction of another’s property.”  The same source defined arson as “the willful or malicious burning of property (as a building) esp. with criminal or fraudulent intent.”  The court concluded that arson clearly and unambiguously falls within this definition of “vandalism and malicious mischief.”

The court noted this case was one of first impression in Florida, so the court reviewed decisions in other states.  The court noted that other state courts have found that arson was excluded under the vacancy exclusion as vandalism or malicious mischief.  Given this additional rationale, the appellate court upheld the denial of coverage by the insurer and trial court.

You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
Post A Comment