Montgomery v. United Services Auto. Ass'n
| Decision Date | 28 October 1994 |
| Docket Number | No. 15786,15786 |
| Citation | 118 N.M. 742,1994 NMCA 140,886 P.2d 981 |
| Parties | Sharon J. MONTGOMERY, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a reciprocal insurance company, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
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.
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) ().
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 N.M. 516, 520, 565 P.2d 1033, 1037 (1977) ().
Nor is there any conflict between use of the general term "vandalism" and the more limited definition of "intentional and malicious damage" which are both utilized simultaneously in the policy. Even conceding the argument that "vandalism" is broadly defined in modern dictionaries to include the "ignorant" destruction of property, this would not, in our judgment, encompass damage caused by a wild animal. See, e.g., The Random House Dictionary of the English Language 1579 (Unabridged ed. 1969) (); Webster's New Collegiate Dictionary 1293 (1977) (defining "vandal" as "one who willfully or ignorantly destroys, damages, or defaces property belonging to another or to the public"). Where gauged by the standard of "what a reasonable person in the position of the insured would understand," Ivy Nelson Grain Co., 80 N.M. at 225, 453 P.2d at 588, whether the term is "ignorant" damage or "malicious" damage, animals lack the mental capacity to inflict either.
This result is supported by the few decisions which have confronted this issue and the lack of any authority to the contrary. In Roselli v. Royal Insurance Co., 142 Misc.2d 857, 538 N.Y.S.2d 898 (1989), an apartment was damaged by a deer. The homeowner's policy insured personal property against damage by " '[v]andalism or malicious mischief'." The New York court acknowledged, as we do, that some modern dictionary definitions of vandalism include the "ignorant" destruction of property. However, these definitions also require the destruction to be in " 'conscious or intentional disregard of the rights of another.' " Id. 538 N.Y.S.2d at 899 (quotingKing v. North River Ins. Co., 278 S.C. 411, 297 S.E.2d 637, 638 (1982)). As such, the court concluded that vandalism "must be perpetrated by a human actor." Id.
Similarly, in Stack v. Hanover Insurance Co., 329 So.2d 561 (Ala.Civ.App.1976), a deer damaged a home when it crashed through a bedroom window. The term vandalism in the homeowner's policy was defined as " 'only the wilful and malicious damage to or destruction of the property covered....' " Id. Finding the policy unambiguous, the court reasoned:
There is no question but that the popular meaning of vandalism is the intentional...
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Capital Flip, LLC v. Am. Modern Select Ins. Co.
...must be perpetrated by a human actor." Roselli , 142 Misc.2d at 858, 538 N.Y.S.2d 898.In Montgomery v. United Services Automobile Association , 118 N.M. 742, 886 P.2d 981 (N.M. App. 1994), the Court of Appeals of New Mexico rejected a similar claim for damage caused to the plaintiff's prope......