PATRICIA ABBOTT, ET AL. v. AMICA MUTUAL INSURANCE COMPANY.

2004 Ct. Sup. 401-a, 38 CLR 484
No. CV 02 0191707Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
January 5, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
LEWIS, JUDGE.

This case, which was tried to the court, involves the meaning of the word “vandalism” in a homeowners insurance policy. The insureds claim that the word includes an occurrence at their home, causing a loss to tangible property, whereas the insurer denied coverage on the ground that the occurrence did not constitute vandalism.

The plaintiffs are Patricia Abbott and William Abbott, who own a home at 195 Imperial Avenue in Westport. On or about August 18, 2001, the plaintiffs procured a homeowners policy from the defendant, Amica Mutual Insurance Company. This insurance policy provided coverage to the plaintiffs for a number of named perils, including “vandalism.”

The incident in question occurred on March 25, 2002. The plaintiffs hired Henry Gilliam, d/b/a Commercial Floor Sanding, to sand and refinish the dining and living room floors at their home. Gilliam’s employee, Carmelo Rivera, worked on the dining room floor and then came up to the living room where both of the Abbotts were present. Covering that floor was a Persian rug, 18 by 14 feet, fabricated in the 1930s and purchased by the plaintiffs in the early 1970s at an auction. A very credible expert witness called by the plaintiffs testified that the fair market value of the rug at the time of the incident was between $70,000 and $80,000.

Mrs. Abbott instructed Rivera to roll back the rug and do some sanding on the perimeter of the living room. Underneath the rug was a mat or pad. The parties agree that the pad had deteriorated. At this point, the testimony diverged. Mrs. Abbott testified that she told Rivera to cut away some three or four feet of the pad and that the plaintiffs would procure new padding to go under their Persian rug. Rivera gave testimony in a CT Page 401-b deposition that was admitted at the trial by agreement. He testified that he understood English, that Mrs. Abbott told him clearly that she wanted the Persian rug, not just the pad, cut up, and that upon questioning her further about this instruction, Mrs. Abbott repeated that she wanted Rivera to cut up the carpet as well as the mat.

The parties agree that Mrs. Abbott then left the room to look for a knife or some instrument for Rivera to use, but that in the meantime Rivera located his own knife, and proceeded to cut up the Persian rug into several pieces. The parties further agree that both of the plaintiffs then returned to the living room and were very upset to discover that their valuable carpet had been cut up. Rivera left the premises at this point.

The plaintiffs filed a claim against the defendant under their homeowners insurance policy. The defendant denied the claim and wrote to the plaintiffs on May 21, 2002 stating that their policy only insured against or covered named perils and that “the damage to your Persian Rug was not caused by a named peril.”

The plaintiffs’ complaint is in two counts, breach of contract and breach of the implied covenant of good faith and fair dealing, based on the defendant’s refusal to indemnify the plaintiffs for their loss. The defendant denied the material allegations of the complaint and filed a special defense that the plaintiffs were limited “to the terms and conditions of the contract of insurance” with the defendant.

In terms of credibility of witnesses, Mrs. Abbott was very credible. It is difficult indeed to believe Rivera’s testimony in his deposition that she told him to cut up a valuable Persian rug. This is particularly true when it was the padding underneath the carpet that had deteriorated, as testified to by Rivera himself. Why anyone would want a rug to be cut up to solve a problem with the padding underneath is a mystery. The conclusion therefore is that Rivera cut up the plaintiffs’ rug because he misunderstood Mrs. Abbott’s instructions.

There is no definition of “vandalism” in the policy. The plaintiffs cite a definition from the well-known Black’s Law Dictionary as well as cases from other jurisdictions that do include ignorance under the meaning of vandalism and hold that malice may be inferred from the act of destroying the property in question. The defendant argues that Rivera was not a “vandal” in CT Page 401-c any sense of the word, as he had been invited to enter the plaintiffs’ premises for the specific purpose of working on their floors. The defendant also contends that vandalism requires wilfulness, a malicious intent to damage something. The plaintiffs agree that Rivera’s actions were not based on malice or wilfulness but assert that he cut up the rug out of ignorance. The defendant also argues that the plaintiffs are attempting to rewrite their insurance policy by expanding the word vandalism to include conduct based on ignorance so that any conduct based on negligence or ignorance would constitute a named peril.

The defendant’s arguments are not unreasonable but they run contrary to the well known axiom that in interpreting insurance policies, ambiguities, such as, in this case, the meaning of the word vandalism, are to be resolved against the party who drafted and prepared the policy. “The interpretation of an insurance policy is based on the intent of the parties, that is, the coverage that the insured expected to receive coupled with the coverage that the insurance expected to provide, as expressed by the language of the entire policy . . . The words of the policy are given their natural and ordinary meaning, and any ambiguity is resolved in favor of the insured.” (Citations omitted.)Wentland v. American Equity Ins. Co., 267 Conn. 592, 600-01, 840 A.2d 1158 (2004). A contract is ambiguous if the intent of the parties is not clear and certain from the language of the policy itself. Detels v. Detels, 79 Conn.App. 467, 472, 830 A.2d 381 (2003). The fact that parties advance different interpretations does not necessarily mean the language is ambiguous. United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

The defendant could have defined the meaning of vandalism by indicating, for instance, that it pertained only to a trespasser, not to someone like Rivera who was invited on the premises, and that it included only conduct that was wilful and malicious, not conduct based on ignorance or negligence. By not defining the word vandalism contained in Section 8 of the policy, the defendant became vulnerable to other interpretations of the word advanced by the plaintiffs, including conduct based on ignorance.

There is an ambiguity in this policy with regard to the meaning of vandalism, is it meant to include damage caused by ignorance, not just by malice and wilfulness? This ambiguity is resolved in favor of the plaintiffs for the reasons stated above. CT Page 401-d

The remaining issue is the amount of damages to which the plaintiffs are entitled. Under their policy with the defendant, they are entitled to be indemnified for losses due to injury to tangible property. The defendants claim that the measure of recovery is solely the cost of repair, which amounted to about $14,500. The basis for this contention is a “replacement loss endorsement” to the policy which lists certain property, including “antiques,” as entitled to reimbursement for losses only to the extent of the cost of repair or replacement, not the loss in value. The defendant did not file a special defense relating to antiques as not being eligible for replacement cost settlement, nor did it make this argument when it rejected coverage of the plaintiffs’ claim. Moreover, although the rug was 70 years old or so, there was no testimony that it was an “antique” within the meaning of the defendant’s policy which referred to “antiques, fine arts, paintings and similar articles of rarity or antiquity which cannot be replaced.”

An expert witness testified credibly that as a result of the cutting of the rug into several pieces, its value was diminished by half, that is, to about $37,500 after the repair had been made. To make the plaintiffs whole, they should recover the amount of the decrease in value of the rug, plus the cost of repair. Thus, judgment enters in favor of the plaintiffs in the amount of $52,500, plus costs as taxed by the office of the chief clerk.

So Ordered.

William B. Lewis, Judge CT Page 402