A skunk entered the basement of a house through a cat door and sprayed the area. Is animal spray excluded from homeowners coverage under the pollution exclusion?
A skunk entered the basement of a house through a cat door and sprayed the area. The insurance company denied the cleanup of the spray saying the discharge from the skunk is a pollutant and is excluded in ISO's 2000 edition of the HO 005 10 00 under Section I - Perils Insured Against (e) 5.
The policy defines a pollutant as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." Section (e) 7 also excludes damage by “birds, vermin, rodents, or insects."
Q: Is animal spray excluded from coverage under the pollution exclusion?
Response 1: Historically, skunk spray has always been covered under the ISO homeowners policy, even the HO3. But that was up until the ISO revised the form in the 2011 edition. In the 2000 edition, the policy excludes:
(7) Birds, vermin, rodents, or insects
In 2011, the ISO replaced that exclusion by removing the word “vermin:"
(7) Birds, rodents or insects
and added a new exclusion:
(8) Nesting or infestation, or discharge or release of waste products or secretions by any animals;
So, under the 2011 ISO policy (HO 00 05 05 11) skunk discharge is not covered. This was a huge removal of coverage under the homeowners policy. Not only for skunk discharge but any blood or urine from a deer or bear that may break into the insured's home. If those waste products or secretions were considered “pollution" there would have been no reason for ISO to change that language.
Tell your carrier that if they want to deny those claims, they had better adopt the 2011 edition of the ISO homeowners policy.
Response 2: Skunk spray seems to fit the definition of a pollutant, so on its face, the release of the nasty stuff would seem to be excluded under a plain English reading of the form. However, there may be case law in your state that distinguishes between skunk spray and pollutants. You may need to have an attorney or your state's insurance department check that for you.
Response 3: Most carriers will cite the pollution exclusion for this type of claim. The definition of “pollutant" is “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
Courts have dealt with this exclusion for many years with varying results. Some courts have said the exclusion applies to industrial pollutants; others have said that bat guano is a pollutant.
If you can get around the pollution exclusion, you run into the exclusion for damage caused by birds, vermin, rodents, or insects. A skunk is not a bird, rodent or insect, but is it a vermin? The policy doesn't define the term.
The term “vermin" was removed in the 2011 homeowners edition, however, it added an exclusion for: “nesting or infestation, or discharge or release of waste products or secretions, by any animals."
This exclusion was probably added to address this type of claim. Unfortunately, the insured might have to take this to court and rely on a favorable ruling.
Response 4: Skunk spray, when naturally released by a skunk, wouldn't be considered a pollutant by many courts. The 2011 edition of ISO's Homeowners now excludes animal secretions which the skunk spray would likely be considered and consequently would no longer be covered.
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