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Pollution liability coverage

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Pollution liability coverage

Hiring an unprofessional duct cleaning does come with risk, a consumer that received a poor service is concerned for dust that re-entered her home. She is seeking pollution liability coverage, exclusions can be tricky.

Question: My claim involves a duct cleaning contractor who failed to close off a vent.  The contents of the duct work were spewed into a bedroom.  There has been no testing of the “dust” contents but the claimant alleges that particulates that cannot be cleaned damaged his property.  The loss state is New Jersey. 

Our policy contains an exclusion for Microorganisms, Biological Organisms or Organic Contaminants. It states:  This insurance does not apply to:  Liability, injury or damages of any kind, to include but not limited to “bodily injury”, “property damage” or “ personal and advertising injury”, including costs or expenses, actually or allegedly arising out of, related to, caused by, contributed to by, or in any way connected with actual, alleged or threatened past, present or future claims arising in whole or in part,  either directly or indirectly, out of the exposure to, presence of, formation of, existence of or actual, alleged or threatened  discharge, dispersal, seepage, migration, release or escape of any microorganisms, biological organisms or organic contaminants, including but not limited to mold, mildew, fungus, spores, yeast or other toxins, allergens, infectious agents, wet or dry rot or rust, or materials of any kind containing them at any time, regardless of the cause of growth, proliferation or secretion; or (2) Any loss, cost or expense arising out of any:  (a) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up,  remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of microorganisms, biological organisms or organic contaminants, including but not limited to mold, mildew, fungus, spores, yeast, or other toxins, allergens, infectious agents, wet or dry rot or rust, or any materials containing them at any time, regardless of  the cause of growth, proliferation or secretion. 

My question is: Would dust from a vent be considered a microorganism, biological organism or organic contaminant in New Jersey?  There are no lab tests or scientific data to identify what’s in the dust. 

— New Jersey Subscriber

Answer: The exclusion in the policy is the standard pollution exclusion; the question of fact, which we cannot answer, is what is included in the vent dust?

An internet search indicates that vent dust can include not only fine dirt but also dead skin, pet dander, microorganisms from cat litter (toxoplasmosis), and other particulates such as pollen, mold spores, fungi, and even rodent feces. If these particles are left to contaminate your ducts, they can become a breeding ground for bacteria, mites, and other pests.

Admittedly, these sources are professional duct cleaners, so we refer to the Environmental Protection Agency website,  which presents a more neutral view of the general contents of dust.

The duct cleaner is responsible for the failure to close off the vent. Following the logical progression, then, the customer is likely looking to the insurer to cover the cleaning and possibly the repair or replacement of the damaged property. The issue at hand is one of fact; if the dust contains allergens and such, as many duct cleaners claim, then the cleanup would be excluded under the listed pollution exclusion. However, if it is just general dust, the cleanup should be covered.

As always, it is up to the insurer to prove that an exclusion applies to the situation. So if the insurer wishes to deny coverage, it will be up to them to prove that there are pollutants in the vents.

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