The Fifth District Court holds that the destruction of property by an intentionally set fire is encompassed within the term “vandalism and malicious mischief.”

In Botee v. Southern Fid. Ins. Co., 2015 Fla. App. LEXIS 1566, Botee owned a single-family home, which was insured under an Southern Fidelity Insurance Company (“SFIC”) insurance policy. The Policy included all-risk coverage on the structure, Coverage A, subject to certain exclusions. One exclusion, the vacancy exclusion, excluded coverage for losses caused by “vandalism and malicious mischief, theft or attempted theft” if the dwelling had been vacant or unoccupied for more than thirty consecutive days immediately before the loss. The Policy also provided named perils coverage, Coverage C, for personal property. The perils named in Coverage C included “fire or lightning” and “vandalism or malicious mischief.”

On October 10, 2012, an intentionally set fire destroyed Botee’s home, which had been vacant for more than thirty consecutive days. Following the fire, Botee filed a claim with SFIC for the loss. SFIC denied Botee’s claim, asserting that the intentionally set fire was an act of “vandalism and malicious mischief” excluded under Coverage A as the property had been vacant for more than thirty consecutive days immediately prior to the loss. Botee then filed a declaratory action, requesting the trial court to determine whether the Policy covered her loss. She later filed a motion for summary judgment, conceding that while the property had been vacant for more than thirty days prior to the fire, the vacancy exclusion in Coverage A applied only to “vandalism and malicious mischief,” not “fire.” The trial court denied Botee’s motion and entered final summary judgment in favor of SFIC, holding that the vacancy exclusion in Coverage A of the Policy was unambiguous and that the term “vandalism and malicious mischief” encompassed arson within its plain and ordinary meaning. Thus, the court concluded that SFIC was correct in denying Botee’s claim.

Botee appealed the trial court’s final summary judgment entered in favor of SFIC. The Fifth District Court of Appeals stated the Policy provides all-risk coverage against direct physical loss to the structure under Coverage A, the structure provision, and named perils coverage for direct physical loss to the contents of the structure under Coverage C, a separate personal property provision. There was no reason to consider Coverage C in order to determine the meaning of Coverage A. Each are separate and distinct provisions, though common policy definitions and general conditions and provisions would control both. Although arson could be included within “fire or lightning,” these terms appear only in Coverage C, the personal property provision, not Coverage A, the structure provision. As the loss in the instant case was only to the structure and not to any personal property, it is only necessary to read Coverage A and the general conditions and definitions applicable to the entire Policy. In that context, the Fifth District Court concluded that the plain and ordinary meanings of “vandalism” and “malicious mischief” include “arson.” The Court need not read Coverage C to create an ambiguity when the vacancy exclusion in Coverage A is clear on its face. For these reasons, the Fifth District Court affirmed the trial court’s final summary judgment.