Montgomery v. United Services Auto. Ass'n, 15786

• Docket Nº: No. 15786
• Citation: 118 N.M. 742, 1994 NMCA 140, 886 P.2d 981
• Case Date: October 28, 1994
• Court: Court of Appeals of New Mexico

Page 981

886 P.2d 981 118 N.M. 742 Sharon J. MONTGOMERY, Plaintiff-Appellant,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, a reciprocal
insurance company, Defendant-Appellee. No. 15786. Court of Appeals of New Mexico. Oct. 28, 1994.

Anthony Lawrence Romo, Romo & Associates, a Professional Corp., Albuquerque, for plaintiff-appellant.

William R. Gralow, Civerolo, Wolf, Gralow & Hill, P.A., Albuquerque, for defendant-appellee.

OPINION

BOSSON, Judge.

The single issue in this appeal is whether damage to personal property within a dwelling, when caused by a wild animal, constitutes "vandalism and malicious mischief" as that term is defined in a renters property and casualty policy. Plaintiff's policy defines vandalism and malicious mischief as "intentional and malicious damage." While the policy was in effect, a bobcat entered Plaintiff's dwelling and damaged certain personal property. The insurer denied Plaintiff's claim because destruction of property by a bobcat did not constitute "vandalism." The trial court ruled against Plaintiff because a "bobcat cannot develop an intent or malice" as those terms are used to define "vandalism."¹ We affirm the ruling of the trial court.

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[118 N.M. 743] DISCUSSION

The thrust of Plaintiff's argument is two-fold. First she asserts that the term "vandalism" within the policy is ambiguous and thus should be construed in favor of the insured. See Federal Ins. Co. v. Century Fed. Sav. & Loan Ass'n, 113 N.M. 162, 167, 824 P.2d 302, 307 (1992). This ambiguity is allegedly created by the conflict between the policy definition of vandalism, which is limited to "the intentional and malicious damage" of property, and the broader, ordinary meaning of the word, which in her view includes the "ignorant destruction" of property as well. Plaintiff then argues, in light of this ambiguity, that a reasonable person would expect to be covered under "vandalism" even for property damage caused by a bobcat. See Ivy Nelson Grain Co. v. Commercial Union Ins. Co., 80 N.M. 224, 225, 453 P.2d 587, 588 (1969) ("[T]he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean.").

Defendant argues that this issue was not properly preserved for appeal because Plaintiff failed to: (1) request findings of fact and conclusions of law; (2) raise the issue of ambiguity in her pleadings or before the trial court; and (3) comply with SCRA 1986, 12-213(A)(3) (Cum.Supp.1994). We reject each contention. First, the failure to request findings of fact does not preclude us from reviewing legal issues. See Board of County Comm'rs v. City of Las Vegas, 95 N.M. 387, 389, 622 P.2d 695, 697 (1980); State v. Heck, 112 N.M. 513, 515, 817 P.2d 247, 249 (Ct.App.1991). Second, the issue of ambiguity is addressed in Plaintiff's argument that vandalism does not require intent. Third, although a technical violation of SCRA 12-213(A)(3) may have occurred, the transcripts and briefs sufficiently present the issue to allow review on the merits. See Garcia v. Village of Tijeras, 108 N.M. 116, 117 n. 1, 767 P.2d 355, 356 n. 1 (Ct.App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988).

On the merits, however, we agree with Defendant. The policy is not in any way ambiguous. In boldface print, the policy states that Plaintiff is protected against losses to personal property arising from "vandalism and malicious mischief." However, in ordinary print, the policy assigns its own definition to those terms which includes only "intentional and malicious damage." Despite the difference in type, a reasonable person reading the policy would conclude that only intentional and malicious damage was covered. See Safeco Ins. Co. v. McKenna, 90...