Roof Claim for Damage by Vultures Fails on Ordinary, Not Expert, Meaning of ‘Infestation’

How many vultures are required and how long must they be present to create an infestation?

The Pennsylvania-based owner of a Maryland commercial building has learned that the answer, at least for insurance purposes, does not lie with an expert in bird behavior when that expert’s conclusions fly in the face of multiple eyewitness accounts, inspection reports, and dictionary definitions of infestation.

The property owner has lost its appeal of a denial of its claim for $300,000 for repairs to a roof damaged by turkey vultures.

Hanover American Insurance rightfully denied the claim in accordance with an exclusion in its policy for damage from nesting or an infestation by birds, a federal district court concluded in 2022 in granting summary judgment for Hanover. The Fourth Circuit Court of Appeals has now upheld that decision.

In denying the claim under the infestation clause, Hanover explained: “Turkey vultures do not build nests, but rather lay their eggs in dark recesses in ledges, cave, crevices, and hollow logs, as well as on the ground. Turkey vultures also nest in the abandoned stick nests of birds, in mammal burrows, and in abandoned buildings. Existing pairs return to and reuse nesting sites year after year. ”

The insurer maintained that this behavior of nesting and returning was an infestation, citing the Merriam-Webster dictionary definition: “to spread or swarm in or over in a troublesome manner.” The insurer also cited a page from the Turkey Vulture Society blog stating that “Vultures are highly social animals, and they prefer to roost in large colonies.”

Since the policy specifically excluded damage from nesting or infestation or discharge or release of water products or secretions by insects, birds, rodents or other animals, Hanover concluded there was no coverage for this loss.

The claimant, Mitchellville Plaza Bar, did not dispute that vultures caused the roof damage. Mitchellville also acknowledged that repeated attempts to repair that damage by patching had been futile because the vultures would simply pull them up again.

Thus, there was no dispute that vultures were persistently present on the roof of the property over a period of months, and that they repeatedly damaged the roof by pecking and tearing at its membrane and at the site of the attempted patch repairs. The parties disagreement related solely to whether the vultures’ presence or activity on the roof fell within the scope of the exclusion.

Mitchellville argued that the exclusion was limited to damages caused by specific activities, namely, nesting and infesting, and that those activities were not present in its case. Mitchellville maintained that Hanover acted in bad faith by denying the claim.

PLRB Opinion

Hanover submitted this coverage question to the Property & Liability Resource Bureau (PLRB) for guidance: “Is long- term buzzard problems that caused damage to roof excluded under nesting and infestation exclusions?”

PLRB responded that a “reasonable argument could be made that the term ‘infestation’ should be limited to loss caused by a group of turkey vultures, as opposed to damage caused by one turkey vulture.” In general, PLRB said, courts have limited the infestation exclusion to losses involving hundreds if not thousands of one kind of animal, such as mites, termites, or bats.

But on the question of how many turkey vultures constitute an infestation, PLRB said the answer was unclear and recommended that “perhaps consultation with an expert might help clarify what constitutes an infestation of turkey vultures.”

There was undisputed eyewitness testimony that the vulture activity constituted “infestation” within the term’s plain and ordinary meaning. The property owner’s own roofer, who was on the property more than 10 times over a period of months, testified that there were between 50 and 75 vultures on the roof every time he visited. The property manager, who visited every two weeks, said she saw between 10 and 25 vultures on the roof each and every time. Hanover’s adjuster and the forensic engineer it hired both observed vultures on the roof.

The property owner engaged an ornithologist and animal behaviorist and relied upon this expert to argue that the infestation exclusion did not apply. This expert acknowledged 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, she maintained that by no definition of the term “infestation” did 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,” she stated.

She concluded that the membrane damage on the roof was most likely caused by one or a few vultures “in a brief, acute incident or series of incidents” and that an “acute visit of an animal or animals to a roof for a brief period of time, even if it results in damage to the roof, does not constitute an infestation.”

Not Specific

The appeals court found that there was 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. Furthermore, the dictionary definitions offered by both parties did not define the word “infestation” by a specific number of any particular animal. Instead, the court found, “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.'”

The appeals court found that the ornithologist’s conclusions conflicted directly with the testimony of multiple eyewitnesses, including two who saw a minimum of 10 vultures, and as many as 75, each time they visited the property over the course of months.

Also, the ornithologist conceded during her deposition “that a number of vultures, 15 to 25, perched on that roof, perhaps with some regularity,” which was testimony the court said directly conflicted with her own report’s conclusion in her report that the roof damage was caused by “one or a few” vultures in an isolated incident, or a series of isolated incidents.

The appeals court concluded that the conflicting conclusions of the expert, who never set foot on the property, did not establish a genuine dispute of material fact and thus upheld the summary judgment awarded to Hanover.

Photo: Turkey vulture (Cathartes aura), also known as the turkey buzzard.