Swedberg v. Battle Creek Mut. Ins. Co.

• Decision Date: 12 October 1984
• Docket Number: No. 83-315,83-315
• Parties: Morris J. SWEDBERG, Appellee, v. BATTLE CREEK MUTUAL INSURANCE COMPANY, Appellant.
• Court: Nebraska Supreme Court

Page 456

356 N.W.2d 456

218 Neb. 447

Morris J. SWEDBERG, Appellee, v. BATTLE CREEK MUTUAL INSURANCE COMPANY, Appellant.

No. 83-315.

Supreme Court of Nebraska.

Oct. 12, 1984.

Syllabus by the Court

1. Insurance. The parties to an insurance contract may make the contract in any legal form they desire, and in the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations, not inconsistent with public policy. If plainly expressed, insurers are entitled to have such exceptions and limitations construed and enforced as expressed.

2. Insurance. In order to recover upon a policy of insurance of limited liability, the insured must bring himself within its express provisions.

3. Insurance: Words and Phrases. In general, the terms "vandalism" and "malicious mischief" refer to wanton or malicious acts intended to damage or to destroy property. Thus, to recover under a policy assuring against loss caused by vandalism and malicious mischief, the plaintiff must show by a preponderance of the evidence, direct or circumstantial, that the damage was caused by acts intended to damage the property in question.

4. Insurance: Words and Phrases. Regardless of how careless, negligent, or even illegal an act might be, it is not malicious mischief absent evidence that the act was motivated by malice toward the property or its owner.

Jewell, Otte, Gatz & Collins, Norfolk, for appellant.

Wyman E. Nelson, Blair, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

KRIVOSHA, Chief Justice.

Battle Creek Mutual Insurance Company (Battle Creek) appeals from a judgment entered by the district court for Burt County, Nebraska, in favor of the appellee, Morris J. Swedberg, and against Battle Creek in the sum of $7,350, together with attorney fees and costs. Swedberg was an insured under a policy of insurance issued by Battle Creek which, among other coverage, insured Swedberg against direct loss to property owned by Swedberg by reason of vandalism and malicious mischief. Battle Creek has assigned two errors in support of its appeal. First, it maintains that Swedberg did not file a proper proof of loss as required by the policy. Second, it maintains that the trial court erred in finding that the damages sustained by Swedberg were a direct loss from vandalism and malicious mischief, as required by the policy. Because we believe that Battle Creek is correct with regard to its contentions that the trial court erred in finding that the loss sustained by Swedberg was due to vandalism and malicious mischief as defined by the policy and therefore erred in awarding any damages, we need not consider the matter regarding the proof of loss.

The record discloses that sometime prior to the date upon which Swedberg suffered the loss, a policy of insurance was issued by Battle Creek to Swedberg. Section III, the relevant portion of the policy, reads in part: "This policy insures under Section III against direct loss to the property covered by the following perils as defined and limited herein:

....

"9. Vandalism and malicious mischief, meaning only the willful and malicious damage to or destruction of the property covered ...."

The evidence discloses that in late December of 1979 or early January of 1980, Swedberg observed that some of his livestock were ill and dying. The livestock were maintained on leased land, in an area away from a main traveled road and accessible only by farm trails. The parties stipulated that the death of the animals was caused by the cattle eating a poisonous substance found in a pail or bucket. It was further undisputed that the poisonous substance ingested by the cattle was a white crystalline substance containing chlorate. The bucket was apparently dumped on the ground, together with other junk and debris, including some molasses and oats. The area where the pail was dumped had earlier been littered with an abandoned disk, a haystacker, and a car body. While Swedberg claims that he did not know of the existence of the molasses, oats, and chlorate before the injury to his livestock, he did know about the abandoned farm machinery. He further testified that before he rented the property he was aware of another dump area on the land some quarter of a mile away. In order to protect the cattle before placing them on the property, he had specifically fenced around that dump area but did not do so around the area where the abandoned disk, haystacker, and car body were located.

There was no evidence as to who dumped the molasses, oats, and other debris, including the chlorate, nor any evidence as to how it was placed there. Swedberg admitted that he did not believe anyone did it to harm him or his livestock. The evidence simply established that the pail was there and that the chlorate caused the damage.

The central question which we must decide is whether the mere fact that harmful material is placed in an area where harm follows to persons or property establishes coverage under a policy of insurance which insures only against vandalism and malicious mischief, defined by the policy as meaning only the willful and malicious damage to or destruction of the property covered. While we have found no Nebraska authority construing such coverage, other jurisdictions have addressed this issue. The better reasoned cases seem to deny coverage.

In attempting to determine whether liability exists under this policy of insurance, we are not at liberty to simply determine what "seems fair" but, rather, are limited in determining whether, under the clear language of a policy, the insurer has in fact insured against the risk involved. Recently, in the case of Safeco Ins. Co. of America v. Husker Aviation, Inc., 211 Neb. 21, 317 N.W.2d 745 (1982), we had occasion to examine and review certain rules of construction regarding policies of insurance. In Safeco, supra at 24-25, 317 N.W.2d at 748, quoting from Adolf v. Union Nat. Life Ins. Co., 170 Neb. 38, 101 N.W.2d 504 (1960), we said:

"Under the law of this state the acquiring of insurance has always been a matter of contract. Insurance is a contract by which one party assumes specified risks of the other party for a consideration, and promises to pay him or his beneficiary an ascertainable sum of money on the happening of a specified contingency. It is true, however, that an insurance contract will be construed against the insurance company when the contract or policy is indefinite or ambiguous because it drafted the contract or policy and is responsible for any indefiniteness or ambiguity therein. But where the contract is plain and unambiguous in its meaning the contract will be enforced according to its terms. Unless this be the law, the attaching of liability on an insurance company, contrary to the plain meaning of the contract, would be nothing less than a rewriting of the liability provisions of the contract. It appears to us that it would be a dangerous innovation of contract law to hold that one is not bound by what he signs, and that that which he fails to read or understand should be read out of the contract."

Furthermore, the Safeco case, supra 211 Neb. at 25-26, 317 N.W.2d at 748, defined this court's rule in construing policies of insurance:

"An insurance policy should be construed as any other contract to give effect to the intent of the parties at the time it was made. The language should be considered not in accordance with what the insurer intended the words to mean, but what a reasonable person in the position of insured would have understood them to mean. If the contract was prepared by the insurer and contains provisions reasonably subject to different interpretations, one favorable to the insurer and one advantageous to the insured, the one favorable to the latter will be adopted. There is, however, a difference between a favorable construction and a favorable finding for the insured. The former does not mean imposing upon the insurer a gratuitous obligation not justified by the usual meaning of the words employed. In giving effect to this principle of law, it is imperative that the contract made by the parties shall be respected and that a new contract is not interpolated by construction. Construction ought not to be employed to make a plain agreement ambiguous for the purpose of interpreting it in favor of the...