United States District Court, W.D. Pennsylvania
WILLIAM S. STICKMAN, IV UNITED STATES DISTRICT JUDGE
Capital Flip, LLC ("Capital Flip"), brought this
action 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 argues that the raccoons engaged in
"vandalism and malicious mischief which is
unquestionably covered by the insurance policy. Defendant
counters that raccoons cannot, as a matter of law, engage in
vandalism or perpetrate mischief-much less with malice. The
Court agrees and, as set forth below, finds that Plaintiffs
claims fail as a matter of law. Therefore, Defendant's
Motion to Dismiss, ECF No. 3, is granted.
Factual Background and Procedural History
relevant facts are straightforward and are not in
dispute. 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. See Plaintiffs Complaint,
Dwelling Policy offered coverage for a limited number of
"perils insured against." See Pl's
Compl., Exhibit A. The only insured peril relevant to this
case covers losses arising out of "vandalism or
malicious mischief." The Policy provides, in relevant
Unless the loss is excluded in the GENERAL
EXCLUSIONS, we insure for direct physical loss to
the property covered caused by:
* * *
10. Vandalism or malicious mischief. This
peril does not include loss:
a. to glass or safety glazing material constituting a part of
the building other than glass blocks;
b. by pilferage, theft, burglary or larceny, but we will be
liable for damage to the building covered caused by burglars;
c. to property on the Described Location if the dwelling has
been vacant for more than 30 consecutive days immediately
before the loss. A dwelling being constructed is not
See id, Ex. A, pp. 3-4.
Flip made a claim on the Policy, contending that the damage
to its property was a result of "vandalism or malicious
mischief by the culprit racoon. American Modern denied the
claim by a May 6, 2018, letter, which stated; "[s]ince
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."
See id, Ex. B, p. 2.
December 3, 2018, Capital Flip filed the instant Complaint in
the Court of Common Pleas of Allegheny County, Pennsylvania,
asserting claims of breach of contract and insurance bad
faith. On February 19, 2019, American Modern removed the
Complaint to this Court, asserting diversity jurisdiction
under 28 U.S.C. §1332. (Notice of Removal, ECF No. 1).
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.
Specifically, American Modern contends that raccoons cannot
commit vandalism or engage in malicious mischief and,
therefore, there was no coverage upon which to premise a
claim for breach of contract or for insurance bad faith.
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 question of whether an animal can
engage in "vandalism" or "malicious mischief
is one of first impression in Pennsylvania and, therefore,
does not lend itself to disposition on a motion to dismiss.