Intention can be a tricky concept in many areas of the law, from criminal prosecutions to insurance-coverage cases, as illustrated in a recent California case, Hung Van Ong v. Fire Ins. Exchange (Apr. 3, 2015). The Ong court had to choose between two views of what “vandalism” means in an insurance policy — one from a “legal” point of view that would destroy coverage, and one from an “ordinary” point of view that would create it. Honoring the keystone principle in these kinds of cases that a tie in a close case goes to the insured, the coverage-friendly interpretation won the day.

Hung Von Ong owned a house in a relatively isolated area that had been vacant since February 2010. On December 20, 2011, a claim was submitted to the insurer for damage caused by a fire, which was apparently started as a “warming” fire by a transient in the middle of the kitchen floor that accidentally “got out of hand.” The adjuster’s notes describe a bed in the kitchen, extra firewood nearby, and include the conclusion: “Unintentional incendiary.”

633494427_b04f23de02_zDespite this initial acknowledgement that the damage was accidental, the insurer denied coverage for the loss under the policy’s exclusion for losses caused by “Vandalism or Malicious Mischief” in property that has been vacant for over 30 days. The insurer successfully defended this denial of coverage in the trial court by relying on what “vandalism” means in the “legal” sense of that term, which broadly means “a wrongful act, done intentionally, without just cause or excuse.” So, for example, a person can be criminally liable for “vandalism” by burning down a neighbor’s house — even though the intention was only to burn down the person’s own house.

But this broad view of “vandalism” did not carry the day in the court of appeals. The Ong court focused on the “ordinary and popular sense” of what “vandalism” means as “willful or malicious destruction or defacement of public or private property” and a “desire to harm.” Under this narrower view, the transient’s intention to start a fire in the middle of the kitchen floor (which, of course, caused at least some damage) was not enough to trigger the exclusion in light of evidence that damage beyond the kitchen floor was not intended and that the fire “got out of hand” from its purpose, however wrongful, to start only a smaller “warming” fire.

While good news for insureds, Ong should also serve as a reminder to property owners that property policies very often restrict, or entirely omit, coverage for vacant property. Insureds and their brokers ought to carefully review and consider these provisions for vacant property, even if the property is expected to soon be rented (read about another case dealing with this problem here), or becomes vacant after the inception of the policy. Coverage should not be a buy-it-and-forget-it issue for insureds, as “vandalism” exclusions and other issues can create gaps in coverage for the unwary.

Opinion reprinted from WestlawNext with permission of Thomson Reuters. If you wish to check the currency of this case by using KeyCite on WestlawNext, please visit www.next.westlaw.com.