Defining a Pollutant

Viruses and bacteria would not typically be considered pollutants for which someone could be held legally responsible. However, there are some exceptions, and some carriers have recognized the potential exposure and provided broader definitions to address the potential exposures to businesses.

Potential Exposures

Contractors

Legionella is a bacterium that causes a form of potentially fatal pneumonia. Legionella can thrive in water-containing systems like large air conditioning systems and industrial water cooling systems. Contractors working on hospitals, nursing homes, apartment buildings and hotels have been sued because of bacteria exposure allegedly associated with their work. At particular risk for lawsuits are trade contractors whose work involves water, heating and cooling systems or any water-containing source that may lead to the spread of water droplets that contain the bacteria. This could include contractors working in carpentry or framing, drywall, electrical, fire sprinkler systems, general contracting, HVAC, mechanical, insulation, plumbing, roofing, fire/water damage restoration, waterproofing or many other contracting classes.

Property Owners

Some properties have a greater risk of visitors contracting a communicable disease from other patrons or tenants. Properties that contain heating and cooling systems where bacteria can form are particularly susceptible. Other properties like gyms, health clubs and spas may carry a higher exposure to methicillin-resistant Staphylococus aureus (MRCA) infections, which are particularly dangerous for those with a weakened immune system. Locations like athletic facilities and schools face an increased exposure as well.

Transportation & Disposal

For both contractors and property owners, there are a number of potential risks when it comes to transportation of materials. They may be hauling infectious materials, and experience a release during transit. They can also be found liable in the event that they dispose of contaminated materials at a disposal facility, and then subsequently the facility has a pollution issue (non-owned disposal site or NODS). Contractors who transport and/or dispose of medical waste or are involved in crime scene cleanup, medical waste disposal and hazardous material handling may face an even higher risk of exposure and a pollution release.

Covering the Risk

Pollution policy definition wording typically falls into one of the following categories:

• Silent on bacteria, viruses and/or legionella as a pollutant. In these cases it should be assumed that carriers wouldn’t cover pollution claims related to viral or bacterial pollution.
• Legionella pneumophila or another bacteria specifically named in the definition of pollutants. This is not as broad as possible, but provides some coverage.
• Bacteria and/or virus specifically included in the definition of what constitutes a pollutant. This is often the broadest language available.
• Medical, pathological and/or infectious waste specifically named as pollutants. In these cases, the waste is included as a pollutant, but other exposures outside of waste handling may not be included.

For example, one carrier’s broadened definition of pollutants includes: “Pollution condition means the discharge, dispersal, release, escape, migration, or seepage … includes electromagnetic fields, mold, virus(es), and bacteria including Legionella pneumophila.”

UCPM Recommendations

Some state courts have ruled that general liability policies can exclude bacteria and legionella as pollutants. Contractors should consider a pollution policy to address the issue, and better yet, confirm that their policies specifically identify bacteria and viruses as pollutants in the definition of covered pollutants.