- The Washington Times - Friday, December 20, 2002

There are plenty of "stupid criminal" stories out there, and one such tale recently made headlines. A man got caught in a chimney in a San Diego suburb trying to enter a building through the opening usually reserved for Santa Claus.

Authorities say 19-year-old Josh Marteen was stuck in a chimney for five hours, rescued and later arrested. Firefighters used power tools to cut through the building's siding and masonry to release him.

Instead of pleading that he was playing the "right jolly old elf" himself, Mr. Marteen told police he was stargazing, which brings up the question of what his two friends were doing inside the building, where police found them.

Regardless, in their rescue efforts, the firefighters really did a number on the house.

During emergencies, normal precautions observed during regular construction and remodeling are cast aside. Thus, the sawing into the side of the house and eventually into the chimney left more than just damage to the walls.

All said, the chimney will have to be reconstructed; the walls repaired, spackled and painted; and the carpet replaced or at least thoroughly cleaned. This is going to cost a few thousand dollars, at least. So who's going to pay for it?

Well, according to the Insurance Information Institute (www.iii.org) there are several perils most homeowner's policies will cover. Those include:

• Fire or lightning.

• Windstorm or hail.

• Explosion.

• Riot or civil commotion.

• Damage caused by aircraft.

• Damage caused by vehicles.

• Smoke.

• Vandalism or malicious mischief.

• Theft.

• Volcanic eruption.

• Falling object.

• Weight of ice, snow or sleet.

• Accidental discharge or overflow of water or steam from within a plumbing, heating, air-conditioning or automatic fire-protective sprinkler system, or from a household appliance.

• Sudden and accidental tearing apart, cracking, burning or bulging of a steam or hot-water heating system, an air-conditioning or automatic fire-protective system.

• Freezing of a plumbing, heating, air-conditioning or automatic, fire-protective sprinkler system or of a household appliance.

• Sudden and accidental damage from artificially generated electrical current (does not include loss to a tube, transistor or similar electronic component).

In the instance of a chimney burglar causing damage to your house, that could be considered vandalism and malicious mischief, and your policy might pay for it.

My first inclination would be to sue the responsible party for damages. However, even if that person has homeowner's or liability insurance, the perpetrator might not be covered for intentional criminal acts.

Another case of criminal stupidity recently set a certain standard in determining whether homeowner's insurance will pay damages. Two friends were drinking alcohol and smoking marijuana when one decided to aim a gun at his friend and pull the trigger. When it didn't fire, he pumped it and pulled the trigger again, and voila the gun fired. The trigger-happy friend was found guilty of a felony.

The victim sued for damages, and the triggerman wanted his insurance company to pay off the victim.

The New York State Court of Appeals ruled last summer that the insurance company did not have to pay damages for its policyholder's negligence exhibited in an intentional criminal act.

The New York ruling can be read in full at Cornell University's Law School site (www.law.cornell.edu/ny/ctap/I02_0095.htm).

In essence, the court ruled that the liability coverage under the traditional homeowner's policy is for true accidents not for criminals to protect themselves from liability when they wreak their mayhem.

If the San Diego courts follow this ruling, one would-be Santa could find his insurance company unwilling to pay to repair the victim's damaged chimney, walls and carpet. The bigger question remains: What does this mean to the average homeowner?

If you're worried about insurance coverage from criminal acts, contact your insurer to see what your policy covers. If you're in the midst of such a claim and having problems getting insurance to pay, you probably want to contact a good lawyer.

M. Anthony Carr has written about the real estate industry for more than 13 years. Reach him by e-mail ([email protected]).

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