I as soon as had three indoor black cats. One or two of them started to urinate on the furnishings. After paying over $20,000 to switch the furnishings, the cats turned outside cats. Cat urine is solely foul smelling and can’t be tolerated.  

The New Hampshire Supreme Court docket presumably appreciated this when ruling that cat urine odor constituted bodily loss or injury in Mellin v. Northern Safety Insurance coverage Co., 167 N.H. 544 (2015).  I’ve argued that if cat odor, which merely smells unhealthy, is roofed, then Covid, which may kill you, should represent bodily loss or injury. 

Sadly, in a current resolution, the New Hampshire Supreme Court docket distinguished how cat urine odor may represent bodily loss or injury, however not Covid.1 Relating to the cat urine, the courtroom famous:

The plaintiffs in Mellin sought to recuperate underneath their house owner’s coverage after their condominium was considerably affected by a cat urine odor emanating from a unit beneath….The insureds and their tenant briefly moved out of the unit at completely different instances because of the odor. Remediation proved unsuccessful; the plaintiffs finally bought the condominium and claimed that the gross sales worth was diminished due to the odor….The plaintiffs introduced a declaratory judgment motion towards their insurer, asserting that the insurer was required to reimburse them for losses to their condominium brought on by the cat urine odor…The coverage at challenge ‘insure[d] towards threat of direct loss to property . . . if that loss is a bodily loss to property.’…

The trial courtroom granted abstract judgment to the insurer after discovering that the cat urine odor didn’t fulfill the ‘bodily loss’ requirement, and the owners appealed. Id. We vacated that ruling, noting that whereas some jurisdictions had adopted a restricted interpretation of ‘bodily loss,’ others acknowledged that an insured could endure a ‘bodily loss’ within the absence of structural injury to property. We held that:

[P]hysical loss could embrace not solely tangible modifications to the insured property, but in addition modifications which can be perceived by the sense of odor and that exist within the absence of structural injury. These modifications, nonetheless, have to be distinct and demonstrable. Proof {that a} change rendered the insured property briefly or completely unusable or uninhabitable could assist a discovering that the loss was a bodily loss to the insured property….

Whereas we adopted a ‘distinct and demonstrable alteration’ commonplace in Mellin, we didn’t maintain that the odor of cat urine within the property was essentially enough to fulfill that commonplace….Moderately, we remanded the case for the appliance of that commonplace…We additionally cautioned that ‘the time period ‘bodily loss’ shouldn’t be interpreted overly broadly,’ and cited a federal appeals courtroom resolution recognizing that direct bodily loss or injury can’t be interpreted to use ‘ ‘at any time when property can’t be used for its supposed function.’ ‘…(quoting Pentair v. American Assure and Legal responsibility Ins., 400 F.3d 613, 616 (eighth Cir. 2005)….

The plaintiffs argue that the presence of SARS-CoV-2 on property, whether or not by aerosolized particles suspended within the air, or by fomites that come to relaxation on surfaces, alters property that’s secure and usable into property that’s harmful and unusable. In accordance with the plaintiffs, this alteration is ‘distinct’ as a result of anybody offered with property that’s contaminated with SARS-CoV-2 and different property that isn’t would select the latter. The plaintiffs assert that the alteration is ‘demonstrable’ by way of testing and modeling used to establish the place the virus is current. The trial courtroom agreed with the plaintiffs that the change to the property was ‘distinct’ as a result of folks coming into contact with property uncovered to the virus leads to a threat of contracting a plague.

… Whereas a ‘distinct and demonstrable’ bodily alteration needn’t essentially be seen and alterations at microscopic ranges may in sure circumstances meet this threshold, the mere adherence of molecules to surfaces doesn’t alter the property in a definite and demonstrable method. Columbiaknit, Inc. v. Affiliated FM Ins. Co., No. Civ. 98-434-HU, 1999 WL 619100, at *6 (D. Or. Aug. 4, 1999) (discovering that when clothes have to be cleaned to remediate an odor and can’t be bought as new, there’s lined property injury, however that when ‘a mere washing’ would take away odor from a bit of clothes whose newness was not a part of its worth, there was no ‘distinct and demonstrable’ injury to property). As has been famous by a lot of courts, the virus will be cleaned from surfaces, and it will definitely disintegrates by itself.

Insurance coverage commentator Invoice Wilson argued partially that Covid wouldn’t be lined as a result of it may simply be cleaned and eliminated. I can admire from private expertise that cat urine odor will not be simply cleaned and eliminated. This distinction is what the New Hampshire Supreme Court docket perceived as nicely. 

The Covid authorized battles have virtually universally been gained by insurers with American types. That is one other authorized win for the insurance coverage business and appears to doom my cat urine odor rhetoric. 

Thought For The Day  

Girls and cats will do as they please, and males and canines ought to loosen up and get used to the thought.

—Robert A. Heinlein

1 Schleicher & Stebbins Motels v. Starr Surplus Strains Ins. Co., No 2022-0155 (N.H. Could 11, 2023).


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