In New London County Mut. Ins. Co. v. Zachem, 145 Conn. App. 160 (2013), the Connecticut Appellate Court defined the term “vacant” in a vandalism exclusion to mean that a dwelling is “unoccupied,” and does not otherwise contain “items ordinarily associated with habitation,” such as furniture or personal property. The Appellate Court further applied its previously-articulated proximate cause analysis to find that an ensuing loss provision did not afford coverage for the loss.
In Zachem, a property loss occurred at the insured’s premises after an intruder stole copper pipes from the house, including piping for a propane gas line. The basement filled with propane, which was ignited by a spark from the water heater. The propane exploded and caused a fire that destroyed the house.
The policy contained a vandalism exclusion which provided that “we do not insure loss . . . caused by . . . vandalism and malicious mischief, theft or attempted theft if the dwelling has been vacant for more than [thirty] consecutive days immediately before the loss.”
At a bench trial, the trial court found that the insured premises had been “vacant” for more than thirty consecutive days at the time of the explosion and fire, and that the insured’s loss fell squarely within the vandalism exclusion. The appellate court affirmed. The court rejected the insured’s argument that the term “vacant” was ambiguous. The appellate court relied on the dictionary definition as “having no contents; empty” and, with regard to a dwelling specifically, as “having no tenant and devoid of furniture, fixtures.” The court rejected the insured’s argument that a dwelling should only be deemed “vacant” upon a “complete abandonment of the entire premises,” stating that such an interpretation would substitute the term “abandoned” for “vacant.”
The court also rejected the insured’s position that the explosion and fire was an “ensuing loss” based on the insured’s argument that the spark from the water heater actually caused the explosion. In so doing, the appellate court cited with approval the efficient cause analysis set forth in Sansone v. Nationwide Mutual Fire Ins. Co., 47 Conn. Supp. 35, 39-41, 770 A.2d 500 (1999), aff’d, 62 Conn. App. 526, 527, 771 A.2d 243 (2001). There, the court stated:
“In the determination [of] whether a loss is within an exception in a policy, where there is a concurrence of two causes, the efficient cause-the one that sets the other in motion-is the cause to which the loss is to be attributed, though the other cause may follow it and operate more immediately in producing the disaster. . . .”
In Zachem, the trial court noted that the fire investigator’s report concluded that the “fire and explosion were a direct result from the intentional act of removing the copper propane lines.”
Applying the proximate cause analysis set forth in Sansone, the trial court found, and the appellate court affirmed, that the efficient cause of the explosion was the removal of the copper propane lines, which constituted “the cause to which the loss is to be attributed.” Specifically, the court stated that “[t]he spark that set off the explosion does not constitute a separate and independent hazard from which the defendants’ loss ensued.” Therefore, the court ruled that the insured did not meet its burden of establishing that the “ensuing loss” exception was applicable to the damage caused by the fire and explosion.