What Defends You

Pesticides, Pests and Insurance Coverage

Written for: Owners, risk managers, insurance brokers and underwriters

Parts of this page marked Professional synthesis, not law are a Board Certified Entomologist's reading of published records. They are not legal rules, they are not legal advice, and they are written to read the same for an owner, a resident, or either side's counsel.

Pest problems reach insurance two ways: a claim that a pesticide application hurt someone or damaged property, and a claim that a unit was unfit to live in. Three published opinions show how policy exclusions handled each. They are decisions of particular courts on particular policy wording. Read your own policy, and ask your broker; this page is not coverage advice.

No published insurer loss-control document on pest records for apartments was located for this reference, so none is described here.

A routine pesticide application and a pollution exclusion

MacKinnon v. Truck Insurance Exchange, 31 Cal. 4th 635 (Cal. Aug. 14, 2003). A tenant asked her landlord to deal with yellow jackets. The landlord hired a pest control company to spray, and the tenant died. The landlord’s general liability insurer denied coverage under a pollution exclusion. The California Supreme Court disagreed:

the pollution exclusion in question does not plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides

We conclude that it is far from clear MacKinnon’s claim, based on the Denzin action, for injuries arising from the normal, though negligent, residential application of pesticides, would be commonly thought of as pollution.

The holding is limited to the “normal, though negligent, residential application” of pesticides, and it is California law.

A banned pesticide and a homeowner’s property claim

Whitney v. Vermont Mutual Insurance Co., 2015 VT 140 (Vt. Dec. 11, 2015). A pest company treating a family’s home for bed bugs used chlorpyrifos. The court described the application:

Triple A sprayed the house, corner to corner, wall to wall, and sprayed the Whitneys’ personal effects within the home, including the inside of the oven and the ductwork of the forced hot air heating system.

and the product:

The undisputed facts are that chlorpyrifos is: toxic to humans; can cause nausea, dizziness, confusion, and at very high exposures, respiratory paralysis and death; and is banned for residential use.

The homeowners’ own property policy excluded the loss:

We conclude that the property damage to the Whitneys’ home is an excluded risk in the applicable policy and accordingly reverse.

Whitney is a first-party homeowners case, not a landlord’s liability case. The court decided it “in the context of this case,” where the product was banned for residential use and was sprayed “corner to corner, wall to wall.”

A habitability exclusion that removed the whole defense

24th & Hoffman Investors, LLC v. Northfield Insurance Co., No. A163670 (Cal. Ct. App., 1st Dist., Aug. 30, 2022) (certified for publication). Tenants of a six-unit San Francisco property sued the owner over a long list of conditions that included

destruction of the garden and plants, pest and vermin infestations, uncontained construction debris and dust

The owner’s policy excluded habitability claims, with a catch-all for any suit that also alleged a habitability violation:

[a]lleged in any claim or ‘suit’ that also alleges any violation, breach or wrongful eviction, entry or invasion as set forth in Paragraphs (1)(a)-(c) above.

The court held the insurer had no duty to defend any of it:

We conclude the plain terms of the contract exclude all of the claims in the underlying action, and we accordingly reverse.

Reading the three together

Professional synthesis, not law

• A habitability exclusion can leave an owner defending a pest claim alone. 24th & Hoffman turned on a catch-all clause. An owner who does not know whether its policy has one should ask its broker.
• How a pesticide was applied mattered. MacKinnon involved a routine application by a hired company. Whitney involved a product banned for residential use, applied wall to wall. The application record required in Utah (R68-7-11(11): product, EPA registration number, amount, area, target pest, applicator’s license) is the record that shows which kind of application happened. See Who May Apply Pesticide.
• Label compliance is a federal requirement for everyone (7 U.S.C. 136j(a)(2)(G)), and Whitney shows what a misapplication can cost before liability is even reached.