* Lawyers are creative people. They will try almost anything to get money out of an insurance company. Sometimes, however, their creativity approaches stupidity and a waste of the time of a court and lawyers.
In Capital Flip, LLC v. American Modern Select Insurance Company, Civil Action No. 2:19-cv-180, United States District Court for the Western District of Pennsylvania (September 19, 2019) a USDC in Pennsylvania was faced with a creative but ridiculous attempt to find coverage for loss not one of the named perils specified in the policy.
Capital Flip, LLC ("Capital Flip"), sued asserting claims for breach of contract and insurance bad faith arising out of Defendant American Modern Select Insurance Company's ("American Modern") denial of insurance coverage for substantial property damage caused by racoons. Capital Flip argued that the raccoons engaged in "vandalism and malicious mischief" which is unquestionably covered by the insurance policy. Defendant countered that raccoons cannot, as a matter of law, engage in vandalism or perpetrate mischief--much less with malice.
Capital Flip was the owner of a dwelling located in the Pittsburgh area. In April of 2018, Capital Flip discovered that racoons had somehow entered the dwelling and caused a substantial amount of damage to the interior. The property was insured by a Dwelling Policy issued by American Modern.
The Dwelling Policy offered coverage for a limited number of "perils insured against." The only insured peril relevant to this case covers losses arising out of "vandalism or malicious mischief."
Capital Flip contended that the damage to its property was a result of "vandalism or malicious mischief" by the culprit racoons. American Modern denied the claim stating "since your loss was the result of an animal or animals damaging the dwelling and this is not covered in the list of perils, as stated above, there is no coverage under your policy for the loss. Therefore, your claim is respectfully denied."
American Modern filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b) (6), arguing that Capital Flip's claims fail as a matter of law because its denial of coverage was warranted.
Capital Flip counters that the Policy is ambiguous because it does not specifically define "vandalism" or "malicious mischief." It contends that, because those terms are undefined, they may include damage caused by racoons and/or other animals. At the very least, Plaintiff argues, the...