I don’t often address property coverage decisions in CO. But this one was just too good to overlook.
At issue in Mitchellville Plaza Bar v. Hanover Am. Ins. Co., No 21-106 (D. Md. Sept. 26, 2022) was coverage for Waynesboro GF LP under a property policy for roof damage to a Popeyes restaurant located in Maryland. The damage was caused by turkey vultures pecking and tearing at the roof. There were frequently 50-75 vultures on the roof.
The insurer disclaimed coverage under a policy exclusion for “damage caused by or resulting from . . . [n]esting or infestation, or discharge or release of waste products or secretions, by insects, birds, rodents or other animals.”
At issue before the court was whether the presence of the vultures was an “infestation.” The insured brought in as an expert an ornithologist and animal behavioralist who issued a report stating that the roof damage was not caused by a vulture infestation, but, rather, just a couple of bad apple turkey vultures.
The expert stated that “the damage to the roof was caused by pecking or shredding of the roof’s protective membrane by the beaks of turkey vultures. However, by no definition of the term ‘infestation’ does the evidence suggest damage was due to an infestation of turkey vultures, given the behavioral ecology of turkey vultures as a species. None of the presented evidence suggests turkey vultures inhabited the roof in large numbers or long-term, or used the roof as a communal roost or nesting site. The evidence, and turkey vulture behavior, is far more consistent with the scenario of a small number of passing turkey vultures temporarily using the roof as a perching site.”
The insurer presented numerous dictionary definitions of “infestation,” which it asserted supported its position, to oppose the insured’s ornithologist and animal behavioralist expert.
The court sided with the insurer, being troubled by the insured’s expert’s deposition testimony that the number of animals required to be an infestation can vary from species to species. While testifying that it is typically in the hundreds or thousands, when it comes to turkey vultures the expert said that it could be greater than 50. The court also concluded that issue was not tied to specific numbers, but, rather, the nature of the problem.
The court stated:
“There is no indication that the parties intended to incorporate into the Policy a species-specific ‘biological definition’ when they agreed to exclude coverage for damages arising out of animal infestation. And it is clear from the dictionary definitions offered by both parties that the word ‘infestation’ is not defined by a specific number of any particular animal. Instead, the plain and ordinary definition of the word ‘infestation’ is the unwanted and persistent presence of a number of animals large enough to cause harm or damage.”
It didn’t help the insured’s case that its expert never visited the property and only looked at two photographs, Google Maps and Google Images when writing her report. From these images, she concluded that “there was no vulture ‘infestation’ based on the absence of ‘feces, regurgitate, feathers, et cetera, that one would expect of a vulture roost or a vulture infestation.’” On the other hand, there was testimony of several eyewitnesses -- including two who saw between 10 and 75 vultures each time they visited the property over a period of months.
The court’s conclusion -- based on the plain and ordinary meaning of “infestation,” that’s what was going on at Popeyes.
By the way, I went to Google Images to try to find a picture of the turkey vulture-infested Popeyes roof. No luck. But I found this story [and picture] about a Weis Market and KFC – in Maryland, how ‘bout that -- having lots of vultures hanging out on the roof. Now I’m no ornithologist or animal behavioralist, but maybe vultures like the smell of fried chicken.
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