In Roselli v. Royal Insurance Co., 142 Misc.2d 857, 538 N.Y.S.2d 898 (N.Y. Sur. Ct., Monroe County, 1989), the court granted summary judgment in favor of an insurer on the insured's claim that damage caused by a deer resulted from "vandalism or malicious mischief."Summary of this case from Capital Flip, LLC v. Am. Modern Select Ins. Co.
February 16, 1989
Chamberlain, D'Amanda, Oppenheimer Greenfield (Gary M. Levine of counsel), for defendant.
Mangione, Gianforti Roisman (Gary Gianforti of counsel), for plaintiff.
On March 24, 1988 a deer entered plaintiff's apartment and caused considerable damage to the contents.
There is no question that on that date plaintiff was insured by a homeowner's policy issued by defendant. It is also undisputed that this policy covered damage to personal property caused by vandalism or malicious mischief.
Defendant insurer has disclaimed liability on the grounds that the loss sustained does not constitute a covered loss. More specifically, defendant contends that a deer is not capable of an intentional or a malicious act and therefore the damages sustained by plaintiff were not the result of any vandalism or malicious mischief within the meaning of the policy.
Defendant now moves for summary judgment dismissing the complaint and plaintiff cross-moves for summary judgment in her favor.
The policy in question quite succinctly and unambiguously states in "SECTION I — PERILS INSURED AGAINST" that coverage extends to "direct physical loss" of personal property "caused by a peril listed below". This language is followed by an enumerated list which includes "8. Vandalism or malicious mischief."
Although, as plaintiff's attorney suggests, modern dictionary definitions of vandalism include the "ignorant" destruction of property (see, e.g., Random House Dictionary of the English Language [2d ed 1987]), even expanded, popular definitions require the destruction to be "in conscious or intentional disregard of the rights of another" (King v North Riv. Ins. Co., 278 S.C. 411, 413, 297 S.E.2d 637, 638).
Likewise, the definition of malicious mischief, even broadly read, presupposes an intentional act. Thus it is said: "Malicious mischief has been defined `the wilful injury or destruction of property from ill will toward its owner or from mere wantoness'. * * * Malice does not necessarily mean hatred. It may be inferred from unjustifiable conduct. In a legal sense, it means a wrongful act, done intentionally, without just cause or excuse" (Romanych v Liverpool London Globe Ins. Co., 8 Misc.2d 269, 272, cited with approval in Cresthill Indus. v Providence Wash. Ins. Co., 53 A.D.2d 488, 498).
Consequently, having found no authority to the contrary, the court reluctantly concurs with existing legal precedent to the effect that vandalism and/or malicious mischief must be perpetrated by a human actor (see, Stack v Hanover Ins. Co., 57 Ala. App. 504, 329 So.2d 561, 562; Imperial Cas. Indem. Co. v Terry, 451 S.W.2d 303, 305 [Tex Civ App]; Ditloff v State Farm Fire Cas. Co., 225 Neb. 375, 379, 406 N.W.2d 101, 104).
Defendant's motion for summary judgment dismissing the complaint is hereby granted and plaintiff's cross motion is denied.