United States District Court, D. Connecticut
Mercedes Zee Corporation, LLC, Plaintiff, Counter Defendant:
Jon David Biller, Michael J. LeMoult, LEAD ATTORNEYS, Biller,
Sachs, Raio & Zito, Hamden, CT.
Seneca Ins Co Inc, Defendant: Cristin E. Sheehan, LEAD
ATTORNEY, John O'Neil Sheehy, Morrison, Mahoney LLP-CT,
Hartford, CT; William A. Schneider, LEAD ATTORNEY, PRO HAC
VICE, Morrison Mahoney LLP-MA, Boston, MA.
Seneca Ins Co Inc, Counter Claimant: Cristin E. Sheehan, LEAD
ATTORNEY, Morrison, Mahoney LLP-CT, Hartford, CT; William A.
Schneider, LEAD ATTORNEY, PRO HAC VICE, Morrison Mahoney
LLP-MA, Boston, MA.
DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT
Alker Meyer, United States District Judge.
vandalism or was it theft? That is a $2 million question that
gives rise to this case about whether damages inflicted by
intruders inside a vacant building are subject to coverage
under the terms of a commercial insurance policy.
in March 2013, the owner of an empty commercial building in
East Hampton, Connecticut found an unwelcome surprise:
intruders had broken into the building, extensively damaged
the building's interior and fixtures, and stolen copper
pipe from inside the building. The building's
owner--plaintiff Mercedes Zee Corp., LLC--seeks payment for
most of its losses under the terms of an insurance policy
issued by defendant Seneca Insurance Company, Inc.
insurance policy covers damages from " vandalism"
but excludes damages from " theft." This lawsuit
has resulted because the parties have very differing
interpretations of what these terms mean as used in the
policy and how they should apply to the facts of this case.
Indeed, the same policy provision is widely used in insurance
policies nationwide, and courts across the country have
frequently grappled with how to understand and apply the
distinction between losses that should be covered as "
vandalism" and losses that should be excluded as "
theft." See, e.g., Morley Witus, The
Paradox of Insurance Coverage for Vandalism But Not
Theft, 56 Wayne L.Rev. 1747 (2010).
parties have now cross-moved for summary judgment. Because I
believe that both parties have overlooked in some respects
the guiding principles that should govern interpretation of
the policy, I will deny both motions for summary judgment.
parties have stipulated to certain facts for purposes of
their cross-motions for summary judgment. Doc. #45 at 9-13.
Plaintiff owns a commercial building in East Hampton,
Connecticut that was vacant while it was undergoing
renovation. Id. at 9. In March 2013, two men broke
into the premises and intentionally damaged the building and
stole copper piping. Id. at 11. Plaintiff claims
damages to walls, ceilings, floors, electrical boxes,
electric panels, electrical distribution, plumbing fixtures,
an alarm system, heating units, and the heating and cooling
systems. Id. at 11-12.
insurance policy at issue in this case includes the following
coverage clause that broadly includes losses due to vandalism
but that is subject to exception for losses due to theft:
A. Covered Causes of Loss
* * * *
8. Vandalism, meaning willful and malicious damage to, or
destruction of, the described property.
We will not pay for loss or damage caused by or resulting
from theft, except for building damage caused by the breaking
in or exiting of burglars.
Id. at 11.
does not claim that this so-called "
vandalism/theft" clause of the insurance policy covers
the value of the copper piping or any other items inside the
building that were stolen by the intruders. Instead,
plaintiff limits its claim to damages sustained to the
interior of the building. It is not clear from the
parties' submissions whether or the extent to which any
interior building damages occurred as a necessary part of any
act of theft ( e.g., whether any damages to walls or
electrical boxes was done to remove copper piping or other
property from inside the walls or electric boxes).
parties offer sharply contrasting views of the scope of the
vandalism/theft clause. For its part, plaintiff contends that
the vandalism/theft clause extends not only to graffiti that
the intruders did within the building but also to the rest of
the intruders' wide-ranging damages to building
components. Id. at 12. According to plaintiff,
" [i]t was reasonable for [plaintiff] to believe it
would be paid for vandalism damage to its building but not
for any items stolen from the building, whether the vandalism
damage was done gratuitously, just for the sake of causing
damages, or whether it was done as part of a successful or