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 ‭(Hidden)‬ Catalog-Item Reuse

Contaminated Property: Is the Coronavirus a Pollutant?

Pollutants include substances which are generally recognized in the industry or by the government to be harmful or toxic to persons, property or the environment.
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A property policy excludes pollutants and use the definition: "any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot fumes, acids, alkalis, asbestos, chemicals, petroleum, petroleum products and petroleum by-products, and waste...."

Pollutants include, but are not limited to, substances which are generally recognized in the industry or by the government to be harmful or toxic to persons, property or the environment regardless of whether injury or damage is caused directly or indirectly by a pollutant. 

Q: I’ve heard that the coronavirus is being considered a solid irritant or contaminant. Is the coronavirus a pollutant?

Response 1: Some lawyers are trying to say the coronavirus is a contaminant. If the courts agree, then it would be a pollutant by definition.

Response 2: Perhaps the question should be: Is a virus a contaminant? The answer to both questions will be determined by the courts. If you are addressing business income, please note that most states have had a mandatory virus exclusion endorsement since 2006.

Response 3: You can guarantee that the definition of “pollutant” will be bounced around in court for quite some time in attempting to cover or exclude COVID-19 coverage. There are going to be arguments for both sides. 

But what are you trying to prove? That a business income loss would be covered? With a virus, there was still no direct damage to the covered property, which is needed to trigger coverage. Even if the surfaces of the building were contaminated, you could clean it all up, disinfect it and there was still no building damage. The building is in fine shape and no property loss was paid. There are some good articles on this topic like this one by Bill Wilson.

Response 4: A pollutant is a man-made or derived substance harmful to living bodies, while a virus is a pathogen from an animal or the soil from which it came and does not allow for any immunity to be developed naturally or the possibility over an undetermined period of time.

Response 5: It is likely to depend on the jurisdiction in which the court is asked to decide. While most jurisdictions may limit the pollution exclusion to environmental exposures, others may take a much broader view.

Response 6: The definition of pollutant includes contaminants. A biological contaminant is defined as contamination of food or environment with microorganisms such as bacteria, viruses, fungi or parasites. 

Based on the policy wording and the applicable meaning of “contaminant," the unendorsed policy excludes coverage for the presence of a virus via the pollution exclusion.

Response 7: The second sentence describes a virus to me. Besides, even if "pollution" did not include virus, there is still no damage to real or personal property that is required to trigger a potentially covered loss.

Response 8: It’s a solid contaminant—just read all those governmental and Centers for Disease Control proclamations about contamination—and it sure can cause respiratory irritation. That sounds like a pollutant, but whether it is or not will depend on case law in your jurisdiction.

This question was originally submitted by an agent through the Big “I” Virtual University’s (VU) Ask an Expert Service, with responses curated from multiple VU faculty members. Answers to other coverage questions are available on the VU website. If you need help accessing the website, request login information.

15205
Tuesday, June 2, 2020
Commercial Lines