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Some of these claims are paid and some are not. The defintions of "vandalism", "malicious mischief" etc. vary according to state case law. I have posted a Washington State case below which has no relevance to Florida cases or the policy you are adjusting except that it might illustrate some of the issues the courts look at. You need to find previous Florida cases with similar sets of facts to even approach what the law is.
This is a great case to read because it deals with proximate cause and all kinds of other issues, but PLEASE don't assume it applies to other states.
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 18306-8-III
Title of Case: Bethany Bowers
v.
Farmers Insurance Exchange, a Foreign Ins. Corp.
File Date: 01/25/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Spokane County
Docket No: 98-2-03129-2
Judgment or order under review
Date filed: 02/26/1999
Judge signing: Hon. Salvatore F. Cozza
JUDGES
------
Authored by Frank L. Kurtz
Concurring: John A. Schultheis
Stephen M. Brown
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Martin Gales
Montgomery Carroll & Gales
2206 N Pines Rd
Spokane, WA 99206-4756
Counsel for Respondent(s)
Mark S. Cole
1001 4th Ave Ste 3810
Seattle, WA 98154-1106
Gregory D. Zamudio
1001 4th Ave Plz #3810
Seattle, WA 98154-1131
State of Washington
Division 111
BETHANY BOWERS, a single woman, ) No. 18306-8-III
)
Appellant, )
)
v. ) ORDER GRANTING MOTION
) FOR RECONSIDERATION
FARMERS INSURANCE EXCHANGE, a ) AND AMENDING OPINION
foreign insurance corporation, )
)
Respondent. )
)
THE COURT has considered respondent's motion for reconsideration and
the answer thereto, and is of the opinion the motion should be granted.
Therefore, the motion for reconsideration of this court's decision of
January 25, 2000, is granted.
IT IS FURTHER ORDERED that the last sentence of the opinion 'On
remand, the superior court shall enter a judgment in conformity with this
opinion and make an award of reasonable attorney fees to Ms. Bowers' shall
be amended to read:
On remand, the trial court shall enter an order of partial summary judgment
in favor of Bethany Bowers on the issue of coverage, and shall make an
award of reasonable attorney fees pertaining to the issue of coverage. The
matter is remanded for further proceedings consistent with this opinion.
DATED:
FOR THE COURT:
FRANK L. KURTZ
CHIEF JUDGE
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BETHANY BOWERS, a single woman, ) No. 18306-8-III
)
Appellant, )
) Division Three
v. ) Panel Five
)
FARMERS INSURANCE EXCHANGE, a )
foreign insurance corporation, ) PUBLISHED OPINION
)
Respondent. )
) FILED
KURTZ, C.J. - Bethany Bowers was denied coverage by Farmers Insurance
Exchange (Farmers) for mold damage to a rental house which occurred when
her tenants, without the knowledge of Ms. Bowers, converted the house into
a marijuana grow operation. The marijuana cultivation caused damage to the
house, including mold growth throughout the house. Upon cross-motions for
summary judgment, the court held in favor of Farmers. Ms. Bowers appeals
contending the court erred in holding that the insurance did not cover the
mold damage caused by the marijuana grow operation, and in not awarding her
reasonable attorney fees.
We conclude the tenants' acts constitute vandalism, for which there is
coverage under Ms. Bowers' landlord's insurance policy. We further
conclude that the tenants' acts are the efficient proximate cause of Ms.
Bowers' loss. The judgment of the superior court is reversed. Ms. Bowers
is awarded her attorney fees.
FACTS
On November 1, 1997, Bethany Bowers rented her single family house to
new tenants. Prior to being rented, the house had been well-maintained,
without problems of mold or excess water vapor condensation. A Landlord's
Protection Package insurance policy was issued by Farmers to Ms. Bowers and
was in effect from November 1, 1997, to June 6, 1998.
The tenants converted a basement portion of the house into a hothouse
for growing marijuana. Halide lights were used, the basement windows were
covered, foil was put on the walls, and the marijuana grow operation was
vented directly into the chimney. The house was otherwise sealed. All
heat in the house was diverted to the basement grow operation room.
The lack of heat throughout the house, together with excessive water
condensation from the halide lights and marijuana grow operation, caused
mold to grow rapidly throughout the house. There were deposits of mold on
floors, carpets, walls, paneling, doors, window coverings, insulation,
rafters, joints and other surface areas in the house.
Initially, Ms. Bowers was unaware of the marijuana grow operation.
However, after almost three months, she became suspicious and contacted the
Spokane police. The marijuana grow operation was discovered and removed by
the Spokane police.
Ms. Bowers thereafter submitted an insurance claim to Farmers for
(1) replacement of warped paneling in the basement, and (2) an additional
$14,802.90 for clean up of mold damage. Farmers paid for the warped wall
paneling, but denied the claim for mold-related damage as not being covered
under the policy. Ms. Bowers filed an action against Farmers for the
repair costs and lost rent. Upon cross-motions for summary judgment, the
trial court held in favor of Farmers. Ms. Bowers appeals.
ANALYSIS
An insurer is liable under a contract for insurance when a covered
peril causes a loss. The court must first determine the scope of the
policy's coverage. Graham v. Public Employees Mut. Ins. Co., 98 Wn.2d 533,
540, 656 P.2d 1077 (1983) (Brachtenbach, J., dissenting). The court
determines coverage by characterizing the perils contributing to the loss,
and determining which perils the policy covers and which it excludes. Kish
v. Insurance Co., 125 Wn.2d 164, 170, 883 P.2d 308 (1994). Interpretation
of insurance policy language is a matter of law that we review de novo.
McDonald v. State Farm Fire & Cas. Co., 119 Wn.2d 724, 730-31, 837 P.2d
1000 (1992).
The Farmers policy's exclusion section states in relevant part:
We do not cover direct or indirect loss from:
. . . .
4. Vandalism or Malicious Mischief, breakage of glass and safety glazing
materials if the dwelling has been vacant for more than 30 consecutive days
just before the loss. A dwelling under construction is not considered
vacant.
. . . .
6. Wear and tear; marring; deterioration; inherent vice; latent defect;
mechanical breakdown; rust; mold; wet or dry rot; contamination; smog;
smoke from farm smudging or industrial operations; settling, cracking,
shrinking, bulging or expansion of pavements, patios, foundation, walls,
floors, roofs or ceiling; birds, vermin, rodents, insects or domestic
animals. If any of these cause water to suddenly and accidentally escape
from a plumbing, heating, air conditioning system or household appliance,
we cover loss caused by water. We also cover the cost of tearing out and
replacing any part of a building necessary to repair the system or
appliance not otherwise excluded under item 5 above. We do not cover loss
to the system or appliance from which the water escaped.
(Emphasis added.)
Ms. Bowers contends the purpose of the Farmers' policy was to insure
her as landlord from accidental loss to the insured rental property. She
emphasizes that there is no dispute that the loss was 'accidental' insofar
as she was concerned. She argues there should be coverage for this loss
under the coverage for vandalism or malicious mischief because the tenants
willfully, wantonly and recklessly damaged her property.
In response, Farmers argues the cause of Ms. Bowers' loss is mold, not
vandalism or malicious mischief. In plain language, the policy excludes
loss due to mold. Farmers maintains there is no ambiguity or provision in
conflict with the exclusion. Farmers asks this court to enforce the
exclusion.
The Farmers' policy specifically covers loss caused by vandalism or
malicious mischief, but does not define those terms. 'Courts interpret
insurance contracts as an average insurance purchaser would understand them
and give undefined terms in these contracts their 'plain, ordinary, and
popular' meaning.' Kish, 125 Wn.2d at 170 (quoting Boeing Co. v. Aetna
Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507, 87 A.L.R.4th 405
(1990)); accord State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 480,
687 P.2d 1139 (1984).
'Vandalism' is defined as 'willful or malicious destruction or
defacement of things of beauty or of public or private property.'
Webster's third New International Dictionary 2532 (1993). 'Malicious
mischief' is defined as 'willful, wanton, or reckless damage or destruction
of another's property.' Webster's, supra,
at 1367. A person who acts willfully acts knowingly. RCW 9A.08.010(4).
The
criminal statutes require that 'malicious mischief' be done 'knowingly and
maliciously.' RCW 9A.48.070, .080, .090.
Farmers argues that the tenants' conduct was not vandalism or
malicious mischief because the conduct was not malicious. Farmers
emphasizes that the tenants' conduct was not motivated by any ill will or
malice towards the owner. In this context, malice does not require ill
will, hatred, or vindictiveness of purpose. Malice may be inferred from
the act of destruction. It is sufficient if the actor is guilty of wanton
or intentional disregard of the rights of others. 13A George J. Couch,
Couch on Insurance 2d sec. 48:210 (Mark S. Rhodes, rev. ed. (1982));
Michael A. Sabatino, Annotation, What Constitutes 'Vandalism' or 'Malicious
Mischief' Within Meaning of Insurance Policy Specifically Extending
Coverage to Losses from Such Causes, 56 A.L.R.5th 407 (1998). As stated in
Frontier Lanes v. Canadian Indem. Co., 26 Wn. App. 342, 613 P.2d 166
(1980), '{p}roperty has been damaged 'willfully and maliciously' if the
damage results from an intentional act from which damage was reasonably
expected to result.' Id. at 347.
This is illustrated in Livaditis v. American Cas. Co., 117 Ga. App.
297, 160 S.E.2d 449 (1968), in which a tenant operated a moonshine still in
a rental house. The moonshine operation was vented so that the smoke,
fumes and vapor were pulled by a fan to the interior of the house. As a
result of smoke and condensation, the paint in the rooms peeled, plaster
was loosened, and rugs, drapes, and walls were stained, soiled and covered
with mold. The issue before the court was whether the tenant's acts were
vandalism, for which there was coverage. In concluding that the tenant's
acts were vandalism, the court rejected the insurance company's contention
that the owner was required to show that the tenant acted with specific
intent to injure the property and was motivated by actual malice. Id. at
299-300.
In this case, the tenants diverted all of the heat from the furnace to
the basement in order to create a marijuana grow room. They irrigated the
marijuana plants under grow lights. This created a sauna-like environment
in the basement. Additionally, they sealed the house and thereby trapped
the water vapor generated by their activities in the basement. These
activities caused certain damage to Ms. Bowers' house. The tenants acted
in conscious or intentional disregard for her property rights. Malice may
be inferred from their acts. We conclude that the tenants' acts are
vandalism.
Ms. Bowers argues that the 'efficient proximate cause' of her loss was
not the mold, but the vandalism of her tenants. The question is whether
the tenants' acts, the covered peril, or the mold, the excluded peril, are
the proximate cause of Ms. Bowers' loss.
In Graham, the court addresses the issue of whether an all-risk
insurance policy covers a loss caused by two or more perils when one of the
perils is excluded and the other peril is covered. Graham held that where
an insured peril 'sets other causes in motion which, in an unbroken
sequence and connection between the act and final loss, produce the result
for which recovery is sought' that peril is the 'proximate cause' of the
loss. Graham, 98 Wn.2d at 538. The proximate cause is 'the efficient or
predominant cause,' not necessarily the last act in a chain of events
leading to the damage. Id. When the insured can identify an insured peril
as the proximate cause, there is coverage 'even if subsequent events in the
causal chain are specifically excluded from coverage.' Findlay v. United
Pac. Ins. Co., 78 Wn. App. 17, 20, 895 P.2d 32 (1995), aff'd, 129 Wn.2d
368, 917 P.2d 116 (1996).
In Sunbreaker Condominium Assoc. v. Travelers Ins. Co., 79 Wn. App.
368, 901 P.2d 1079 (1995), the court applied the efficient proximate cause
rule to find that where wind-driven rain was a distinct, covered peril
under the policy, the policy's fungus damage exclusion did not necessarily
bar recovery for fungus damage. Even though expert testimony identified
rain as the cause of fungus, a jury could find that wind-driven rain was
the efficient proximate cause of the loss. Similarly, Ms. Bowers
recognizes that mold growth was the immediate cause of her loss but argues
that her tenants' vandalism was the efficient proximate cause of the loss.
If the efficient proximate cause rule applies, the question of which
peril constitutes the proximate cause is usually referred to the factfinder
unless the facts are undisputed and there can be no reasonable difference
of opinion regarding their meaning. In the latter case, the issue of
proximate cause may be a question of law for the court. Kish, 125 Wn.2d at
170. Here, there can be no reasonable difference of opinion regarding the
cause of Ms. Bowers' loss. It was the tenants' acts, which 'in an unbroken
sequence . . . {produced} the result for which recovery is sought{.}'
Graham, 98 Wn.2d at 538. We conclude that the tenants' acts are the
efficient proximate cause of the owner's loss.
The judgment of the superior court is reversed. Ms. Bowers is awarded
her reasonable attorney fees in superior court and on appeal. Olympic S.S.
Co. v. Centennial Ins. Co., 117 Wn.2d 37, 51-54, 811 P.2d 673 (1991). On
remand, the trial court shall enter an order of partial summary judgment in
favor of Bethany Bowers on the issue of coverage, and shall make an award
of reasonable attorney fees pertaining to the issue of coverage. The
matter is remanded for further proceedings consistent with this opinion.
Kurtz, C.J.
WE CONCUR:
Schultheis, J.
Brown, J.
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