Battishill v. Farmers Alliance Insurance

2006 NMSC 004, 127 P.3d 1111, 139 N.M. 24
CourtNew Mexico Supreme Court
DecidedJanuary 9, 2006
Docket28,812
StatusPublished
Cited by66 cases

This text of 2006 NMSC 004 (Battishill v. Farmers Alliance Insurance) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Battishill v. Farmers Alliance Insurance, 2006 NMSC 004, 127 P.3d 1111, 139 N.M. 24 (N.M. 2006).

Opinion

OPINION

MINZNER, Justice.

{1} Appellant Farmers Alliance Insurance Company appeals from the Court of Appeals’ opinion reversing summary judgment in its favor on Appellee Cary Battishill’s claim under a homeowner’s policy. See Battishill v. Farmers Alliance Ins. Co., 2004-NMCA-109, 136 N.M. 288, 97 P.3d 620. The question on appeal is whether the policy section covering all risks except “vandalism and malicious mischief’ excluded acts of arson. The Court of Appeals held that the phrase “vandalism and malicious mischief’ did not encompass acts of arson because both terms were susceptible to different interpretations, id. ¶ 22, and because the structure of the policy, taken as a whole, supported an interpretation in favor of the insured. Id. ¶ 24.

{2} We conclude, contrary to the Court of Appeals, that the phrase “vandalism and malicious mischief,” included acts of arson. The clarity of the exclusion in the all-risk .section of the policy precludes an interpretation in favor of the insured.

FACTS

{3} Battishill is the owner of a rental house that was insured under a homeowner’s hybrid policy issued by Farmers Alliance. The hybrid policy provides “all-risk” coverage on the dwelling itself and “named peril” coverage on personal property. The all-risk coverage insures against all risks causing physical loss to the dwelling, unless specifically excluded. The named perils coverage insures for “direct physical loss to [personal] property” caused by specific perils including “fire or lightning” and “vandalism or malicious mischief.”

{4} It is undisputed that Battishill’s house was partially damaged by a fire on or about June 24, 2002. The house had been vacant for more than thirty consecutive days prior to the fire, and did not contain any of Battishill’s personal property. After an investigation, it was determined that the fire was incendiary in nature. Battishill filed a claim under his homeowner’s insurance policy. Farmers Alliance denied coverage based on an exclusion in the policy for loss caused by “[v]andalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss.” M ¶ 4.

{5} The district court granted summary judgment in favor of Farmers Alliance, holding that the vacancy exclusion was unambiguous and excluded coverage. The Court of Appeals reversed the district court’s decision and concluded that “a common and ordinary meaning of ‘vandalism’ ” supports coverage, and therefore, “on a narrow construction of the exclusion” the insured was entitled to recover. Id. ¶ 25. In addition, the Court of Appeals held that the all-risk and named perils coverages were structurally similar and that a reasonable insured “would read the policy as covering destruction by arson” even if the dwelling had been vacant for more than thirty consecutive days. Id.

DISCUSSION

A. Standard of Review and Burden of Proof

{6} We review both issues de novo. “The interpretation of an insurance contract is a matter of law about which the court has the final word.” Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 60, 123 N.M. 752, 945 P.2d 970. “[U]nder an all-risk policy, the insured must initially prove that the loss or damage was caused by some event or risk other than normal depreciation or inherent vice or defect.” 1 ERIC MILLS HOLMES & MARK S. RHODES, HOLMES’S APPLEMAN ON INSURANCE, § 1.10, at 43 (2d ed.1996). In this case, it is undisputed that the damages were caused by arson; therefore, Battishill has met his burden. The burden then shifts to Farmers Alliance “to prove that the loss is not covered by evidence showing an exception, exclusion or other limitation applies.” Id.; see also id. at 45 (“That the insurer has the burden of proof to prove no coverage under an all-risks policy is the American rule in all states, with the possible exception of Texas.”).

B. “Vandalism and Malicious Mischief’ as Ambiguous Terms

{7} The insurance policy at issue did not define “vandalism and malicious mischief’ and it failed to mention arson. These terms are essential in determining whether the exclusion was applicable in this case. If arson constitutes “vandalism and malicious mischief,” then the exclusion precludes coverage because it is undisputed that the dwelling was vacant for more than thirty consecutive days.

{8} The Court of Appeals stated that “an insurance policy is not rendered ambiguous merely because a term is not defined; rather, the term must be interpreted in its usual, ordinary, and popular sense.” Battishill, 2004-NMCA-109, ¶ 11, 136 N.M. 288, 97 P.3d 620. We agree and hold that the common and ordinary meaning of “vandalism,” “malicious mischief,” and “arson” may be ascertained from a dictionary. See, e.g., Estes v. St. Paul Fire & Marine Ins. Co., 45 F.Supp.2d 1227, 1229 (D.Kan.1999) (relying on Webster’s Third New International Dictionary’s definitions of “vandalism” and “arson” to determine that “[a]rson of a private dwelling clearly is within the plain and ordinary meaning of vandalism”).

{9} Webster’s Third New International Dictionary defines “vandalism” as “willful or malicious destruction or defacement of things of beauty or of public or private property.” WEBSTER’S THIRD NEW INT’L DICTIONARY 2532 (2002). It defines “malicious mischief’ as “willful, wanton, or reckless damage or destruction of another’s property.” Id. at 1367. “Arson” is defined as “the willful and malicious burning of or attempt to burn any building, structure, or property of another (as a house, a church, or a boat) or of one’s own usu[ally] with criminal or fraudulent intent.” Id. at 122. Burning is a form of damage, destruction, or defacement. From these definitions, we conclude that arson is a form of “vandalism and malicious mischief.” See Am. Mut. Fire Ins. Co. v. Durrence, 872 F.2d 378, 379 (11th Cir.1989) (per curiam) (“[A] common sense interpretation of the insurance contract’s “Vandalism or Malicious Mischief provision which contains the ‘vacancy’ exclusion, suggests that it would apply to a fire set in a vacant house by an unknown arsonist or vandal.”); Costabile v. Metro. Prop. & Cas. Ins. Co., 193 F.Supp.2d 465, 478 (D.Conn.2002) (predicting “that the Connecticut Supreme Court would conclude that arson ... is a type of vandalism”); United Capital Corp. v. Travelers Indem. Co. of Illinois, 237 F.Supp.2d 270, 274 (E.D.N.Y.2002) (“Although there is somewhat conflicting case law on the issue, courts generally agree that the ordinary use of the word vandalism would include an arson.”); Brinker v. Guiffrida, 629 F.Supp. 130, 136 (E.D.Pa.1985) (“Willfully and intentionally damaging a dwelling by setting it on fire is certainly damaging the dwelling by vandalism and malicious mischief, as well as arson.”).

{10} Although the Court of Appeals recognized that arson may be considered a type of vandalism, it also reasoned that “apart from the dictionary, there exists a sense that the common and ordinary meaning of vandalism is something different than that of arson.” Battishill, 2004-NMCA-109, ¶ 13, 136 N.M. 288, 97 P.3d 620; see also id.

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Bluebook (online)
2006 NMSC 004, 127 P.3d 1111, 139 N.M. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battishill-v-farmers-alliance-insurance-nm-2006.