Appellate court addresses “Warming Fires”

By April 8, 2015 October 25th, 2018 Insurance Blog, Melody Mosley

On Friday, the Second Appellate District weighed in on an issue that insurance carriers face fairly often which is whether the “warming fire” is an act of vandalism. Under the facts of Ong v. Fire Insurance Exchange, the tenants moved out in February of 2010 and the structure burned in December of 2011. The origin and cause expert concluded that the fire might have been the result of “an uncontrolled warming fire started by an unauthorized inhabitant.” The expert found signs of habitation and theorized that the holes in the floor might have been the result of the transient trying to throw burning wood out the door when the warming fire became out of control.

The claim was denied on the vacancy exclusion which stated: “We do not cover direct or indirect loss from:…4. Vandalism or Malicious Mischief, breakage of glass and safety glazing materials if the dwelling has been vacant for more than 30 consecutive days just before the loss…”   The policy did not define the term “vandalism.” At trial, the insured argued that the definition of “vandalism” required an intent to destroy property whereas the carrier relied upon a different definition of vandalism. The trial court found in favor of Fire Insurance Exchange but the appellate court disagreed.

Relying upon case precedent for how to interpret contractual language, the appellate court held that the trial court should have relied upon the ordinary and popular definition of vandalism which in this instance, required an intent to injure or destroy property. The Court found that intent missing in the Ong case, stating, “the transient apparently kicked the firewood in an attempt to knock it out the door and stop the spread of the fire and the fire was ‘unintentional[ly] incendiary.’”

The insured raised a number of interesting issues, only a few of which were addressed by the Court. The Court noted that California’s standard form fire insurance policy allows a carrier to exclude liability for a fire loss occurring when a covered property is vacant or unoccupied beyond a period of 60 consecutive days and that here, the carrier could have listed “fire” as an excluded risk under the vacancy provision but it did not do so.

The dissent raised interesting points as well. Justice Rothschild stated, “It … does not matter that the person who started the fire did it to keep warm.  What is relevant is that someone intentionally started the fire on the kitchen floor, which constitutes willful destruction or defacement of property.” The full case is attached.