{ "id": 1563514, "name": "Sharon J. MONTGOMERY, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a reciprocal insurance company, Defendant-Appellee", "name_abbreviation": "Montgomery v. United Services Automobile Ass'n", "decision_date": "1994-10-28", "docket_number": "No. 15786", "first_page": "742", "last_page": "744", "citations": [ { "type": "official", "cite": "118 N.M. 742" }, { "type": "parallel", "cite": "886 P.2d 981" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "70 So.2d 421", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 5251351 ], "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ala/260/0330-01" ] }, { "cite": "451 S.W.2d 303", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10137853 ], "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/sw2d/451/0303-01" ] }, { "cite": "48 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560838 ], "weight": 2, "year": 1944, "pin_cites": [ { "page": "16", "parenthetical": "use of \"malicious injury\" in insurance clause contemplates intentional infliction of wrongful injury" }, { "page": "680", "parenthetical": "use of \"malicious injury\" in insurance clause contemplates intentional infliction of wrongful injury" } ], "opinion_index": 0, "case_paths": [ "/nm/48/0009-01" ] }, { "cite": "225 Neb. 375", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2918978 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "in dictum, court stated that cattle could not have caused wilful or malicious damage to property because they could not form the necessary malicious intent" }, { "page": "104", "parenthetical": "in dictum, court stated that cattle could not have caused wilful or malicious damage to property because they could not form the necessary malicious intent" } ], "opinion_index": 0, "case_paths": [ "/neb/225/0375-01" ] }, { "cite": "329 So.2d 561", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 428139 ], "weight": 3, "pin_cites": [ { "page": "562", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ala-app/57/0504-01" ] }, { "cite": "297 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2153009 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/sc/278/0411-02" ] }, { "cite": "278 S.C. 411", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2152888, 2153009 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/sc/278/0411-01", "/sc/278/0411-02" ] }, { "cite": "538 N.Y.S.2d 898", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "142 Misc.2d 857", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 4231878 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/misc2d/142/0857-01" ] }, { "cite": "90 N.M. 516", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874921 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "520", "parenthetical": "\"Resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists.\"" }, { "page": "1037", "parenthetical": "\"Resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0516-01" ] }, { "cite": "765 P.2d 758", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 785", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "108 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592805 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0116-01" ] }, { "cite": "112 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720199 ], "weight": 2, "pin_cites": [ { "page": "515" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0513-01" ] }, { "cite": "95 N.M. 387", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575570 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "389" }, { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0387-01" ] }, { "cite": "80 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358560 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "225", "parenthetical": "\"[T]he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean\"" }, { "page": "588", "parenthetical": "\"[T]he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean\"" }, { "page": "225" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0224-01" ] }, { "cite": "113 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723192 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "167" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0162-01" ] } ], "analysis": { "cardinality": 590, "char_count": 8642, "ocr_confidence": 0.707, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05843680461679426 }, "sha256": "a379e80f806155855dcc9a2f19949d17c895a83671c539c424c823c998aa8630", "simhash": "1:bd4de4da493df5f5", "word_count": 1403 }, "last_updated": "2023-07-14T22:33:20.619055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and BLACK, JJ., concur." ], "parties": [ "Sharon J. MONTGOMERY, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a reciprocal insurance company, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nBOSSON, Judge.\nThe single issue in this appeal is whether damage to personal property within a dwelling, when caused by a wild animal, constitutes \u201cvandalism and malicious mischief\u2019 as that term is defined in a renters property and casualty policy. Plaintiffs policy defines vandalism and malicious mischief as \u201cintentional and malicious damage.\u201d While the policy was in effect, a bobcat entered Plaintiffs dwelling and damaged certain personal property. The insurer denied Plaintiffs claim because destruction of property by a bobcat did not constitute \u201cvandalism.\u201d The trial court ruled against Plaintiff because a \u201cbobcat cannot develop an intent or malice\u201d as those terms are used to define \u201cvandalism.\u201d We affirm the ruling of the trial court.\nDISCUSSION\nThe thrust of Plaintiffs argument is twofold. First she asserts that the term \u201cvandalism\u201d within the policy is ambiguous and thus should be construed in favor of the insured. See Federal Ins. Co. v. Century Fed. Sav. & Loan Ass\u2019n, 113 N.M. 162, 167, 824 P.2d 302, 307 (1992). This ambiguity is allegedly created by the conflict between the policy definition of vandalism, which is limited to \u201cthe intentional and malicious damage\u201d of property, and the broader, ordinary meaning of the word, which in her view includes the \u201cignorant destruction\u201d of property as well. Plaintiff then argues, in light of this ambiguity, that a reasonable person would expect to be covered under \u201cvandalism\u201d even for property damage caused by a bobcat. See Ivy Nelson Grain Co. v. Commercial Union Ins. Co., 80 N.M. 224, 225, 453 P.2d 587, 588 (1969) (\u201c[T]he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean\u201d).\nDefendant, argues that this issue was not properly preserved for appeal because Plaintiff failed to: (1) request findings of fact and conclusions of law; (2) raise the issue of ambiguity in her pleadings or before the trial court; and (3) comply with SCRA 1986, 12-213(A)(3) (Cum.Supp.1994). We reject each contention. First, the failure to request findings of fact does not preclude us from reviewing legal issues. See Board of County Comm\u2019rs v. City of Las Vegas, 95 N.M. 387, 389, 622 P.2d 695, 697 (1980); State v. Heck, 112 N.M. 513, 515, 817 P.2d 247, 249 (Ct.App.1991). Second, the issue of ambiguity is addressed in Plaintiffs argument that vandalism does not require intent. Third, although a technical violation of SCRA 12-213(A)(3) may have occurred, the transcripts and briefs sufficiently present the issue to allow review on the merits. See Garcia v. Village of Tijeras, 108 N.M. 116, 117 n. 1, 767 P.2d 355, 356 n. 1 (Ct.App.), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988).\nOn the merits, however, we agree with Defendant. The policy is not in any way ambiguous. In boldface print, the policy states that Plaintiff is protected against losses to personal property arising from \u201cvandalism and malicious mischief.\u201d However, in ordinary print, the policy assigns its own definition to those terms which includes only \u201cintentional and malicious damage.\u201d Despite the difference in type, a reasonable person reading the policy would conclude that only intentional and malicious damage was covered. See Safeco Ins. Co. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037 (1977) (\u201cResort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists.\u201d).\nNor is there any conflict between use of the general term \u201cvandalism\u201d and the more limited definition of \u201cintentional and malicious damage\u201d which are both utilized simultaneously in the policy. Even conceding the argument that \u201cvandalism\u201d is broadly defined in modern dictionaries to include the \u201cignorant\u201d destruction of property, this would not, in our judgment, encompass damage caused by .a wild animal. See, e.g., The Random House Dictionary of the English Language 1579 (Unabridged ed. 1969) (defining \u201cvandalism\u201d as \u201cwillful or ignorant destruction of artistic or literary treasures\u201d); Webster\u2019s New Collegiate Dictionary 1293 (1977) (defining \u201cvandal\u201d as \u201cone who willfully or ignorantly destroys, damages, or defaces property belonging to another or to the public\u201d). Where gauged by the standard of \u201cwhat a reasonable person in the position of the insured would understand,\u201d Ivy Nelson Grain Co., 80 N.M. at 225, 453 P.2d at 588, whether the term is \u201cignorant\u201d damage or \u201cmalicious\u201d damage, animals lack the mental capacity to inflict either.\nThis result is supported by the few decisions which have confronted this issue and the lack of any authority to the contrary. In Roselli v. Royal Insurance Co., 142 Misc.2d 857, 538 N.Y.S.2d 898 (1989), an apartment was damaged by a deer. The homeowner\u2019s policy insured personal property against damage by \u201c \u2018[vandalism or malicious mischief.\u201d The New York court acknowledged, as we do, that some modern dictionary definitions of vandalism include the \u201cignorant\u201d destruction of property. However, these definitions also require the destruction to be in \u201c \u2018conscious or intentional disregard of the rights of another.\u2019 \u201d Id. 538 N.Y.S.2d at 899 (quoting King v. North River Ins. Co., 278 S.C. 411, 297 S.E.2d 637, 638 (1982)). As such, the court concluded that vandalism \u201cmust be perpetrated by a human actor.\u201d Id.\nSimilarly, in Stack v. Hanover Insurance Co., 329 So.2d 561 (Ala.Civ.App.1976), a deer damaged a home when it crashed through a bedroom window. The term vandalism in the homeowner\u2019s policy was defined as \u201c \u2018only the wilful and malicious damage to or destruction of the property covered____\u2019\u201d Id. Finding the policy unambiguous, the court reasoned:\nThere is no question but that the popular meaning of vandalism is the intentional and malicious destruction of property. Such act requires a human mind capable of forming the requisite intent of committing a wrongful act, resulting in senseless destruction or damage to property either public or private.\nAn animal, such as a deer, to the human mind, and in law, is incapable of forming an intent to commit a wrongful act or to act maliciously. An animal, non-human, acts or reacts instinctively without knowledge of right or wrong as defined by man.\nIn the popular connotation of vandalism it is clear that the destruction of plaintiffs\u2019 property by the independent action of the deer in this case does not fall within the terms of the policy of insurance. An insurance policy without ambiguity in its terms must be enforced____\nId. at 562 (citations omitted); see Ditloff v. State Farm Fire & Casualty Co., 225 Neb. 375, 406 N.W.2d 101, 104 (1987) (in dictum, court stated that cattle could not have caused wilful or malicious damage to property because they could not form the necessary malicious intent); 5 John A. Appleman & Jean Appleman, Insurance Law and Practice \u00a7 3182.25 (Supp.1993); see also Rea v. Motors Ins. Corp., 48 N.M. 9, 16, 144 P.2d 676, 680 (1944) (use of \u201cmalicious injury\u201d in insurance clause contemplates intentional infliction of wrongful injury); Imperial Casualty & Indem. Co. v. Terry, 451 S.W.2d 303, 308 (Tex.Civ.App.1970) (policy insuring against loss caused by \u201cmalicious mischief\u2019 must show that damage was caused by acts intended to damage the property in question); Great Am. Ins. Co. v. Dedmon, 70 So.2d 421, 422 (Ala.1953) (vandalism originates from the Vandals, a Germanic people of the 4th and 5th centuries known for pillaging other lands).\nCONCLUSION\nFor the foregoing reasons, we affirm the decision of the trial court.\nIT IS SO ORDERED.\nDONNELLY and BLACK, JJ., concur.\n. In addition to its formal judgment, the trial court orally announced its ruling at the conclusion of the case as follows:\nThe scarecrow wanted a heart.\nHe wanted it from the start.\nThe tin man wanted a brain.\nSo he could be the same.\nAnd it was courage asked for by the lion, even though he was always crying.\nIn this case the bobcat needs \"intent\u201d.\nOr did he just rely on his scent?\nAlas, it is written in the law that the animal with the paw does not have the mind to do the damage of this kind.\nAnd so, I\u2019m sorry, the Plaintiff won\u2019t get paid.\nThat's how the contract was made.\nThis policy does not apply when the bobcat runs awry.", "type": "majority", "author": "BOSSON, Judge." } ], "attorneys": [ "Anthony Lawrence Romo, Romo & Associates, a Professional Corp., Albuquerque, for plaintiff-appellant.", "William R. Gralow, Civerolo, Wolf, Gralow & Hill, P.A., Albuquerque, for defendantappellee." ], "corrections": "", "head_matter": "886 P.2d 981\nSharon J. MONTGOMERY, Plaintiff-Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, a reciprocal insurance company, Defendant-Appellee.\nNo. 15786.\nCourt of Appeals of New Mexico.\nOct. 28, 1994.\nAnthony Lawrence Romo, Romo & Associates, a Professional Corp., Albuquerque, for plaintiff-appellant.\nWilliam R. Gralow, Civerolo, Wolf, Gralow & Hill, P.A., Albuquerque, for defendantappellee." }, "file_name": "0742-01", "first_page_order": 772, "last_page_order": 774 }