Last year one of their tenants was found dead in their apartment. The body was there about 2 weeks. A claim was reported to the insurance company and the insured contacted a company to do the cleanup. The carrier has since denied the claim citing the pollution exclusion. I was hoping that you had some information or documentation that I can use to dispute the carrier's position that the bodily fluids are not considered a pollutant.

New York Subscriber

Couch on Insurance 9 Couch on Ins. § 127:8 says it best: "Several courts have applied the principle of "ejusdem generis," interpreting pollution by reference to the surrounding language in order to limit the list of substances that may otherwise qualify as pollutants. Thus, although the list of substances provided in the definition may be nonexhaustive, substances not specifically mentioned must be similar in nature to the listed substances. For example, it has been held that living, organic irritants or contaminants do not constitute pollutants under the policy definition because the irritants specifically identified in the definition, namely "smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste," are primarily inorganic in nature.

 The homeowners form HO 00 03 05 11 does not define pollutants in the definitions. Pollutants are defined in the exclusions section as "solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed;" The intent of the exclusion is to eliminate coverage from industrial products and byproducts. A human body cannot be recycled or reconditioned or reclaimed. That implies being able to reuse the materials again for the same or similar purposes. Organ donation is not recycling a human body. Nicholson v. Allstate Ins. Co., 979 F. Supp. 2d 1054 (E.D. Cal. 2013) speaks to this directly; in this case the court stated that the carrier failed to show that the standard pollution exclusion in the homeowners policy would be understood by a reasonable policyholder to apply to bar guano and decaying bat carcasses.

 Exclusions are to be read narrowly, and reading the pollution exclusion narrowly puts the list of excluded items as being industrial or environmental in nature, and not the result of a natural death of a tenant.