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 interchange the furnishings, the cats turned out of doors cats. Cat urine is just foul smelling and can’t be tolerated.  

The New Hampshire Supreme Courtroom presumably appreciated this when ruling that cat urine odor constituted bodily loss or harm 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 might kill you, should represent bodily loss or harm. 

Sadly, in a current determination, the New Hampshire Supreme Courtroom distinguished how cat urine odor may represent bodily loss or harm, however not Covid.¹ Concerning the cat urine, the court docket famous:

The plaintiffs in Mellin sought to get well below their home-owner’s coverage after their condominium was considerably affected by a cat urine odor emanating from a unit under….The insureds and their tenant briefly moved out of the unit at totally different occasions because of the odor. Remediation proved unsuccessful; the plaintiffs finally offered the condominium and claimed that the gross sales value was decreased due to the odor….The plaintiffs introduced a declaratory judgment motion in opposition to their insurer, asserting that the insurer was required to reimburse them for losses to their condominium attributable to the cat urine odor…The coverage at problem ‘insure[d] in opposition to threat of direct loss to property . . . if that loss is a bodily loss to property.’…

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

[P]hysical loss might embrace not solely tangible modifications to the insured property, but additionally modifications which are perceived by the sense of scent and that exist within the absence of structural harm. These modifications, nevertheless, have to be distinct and demonstrable. Proof {that a} change rendered the insured property briefly or completely unusable or uninhabitable might 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 ample to fulfill that commonplace….Somewhat, we remanded the case for the applying of that commonplace…We additionally cautioned that ‘the time period ‘bodily loss’ shouldn’t be interpreted overly broadly,’ and cited a federal appeals court docket determination recognizing that direct bodily loss or harm can’t be interpreted to use ‘ ‘each time property can’t be used for its meant 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 protected 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’s not would select the latter. The plaintiffs assert that the alteration is ‘demonstrable’ by testing and modeling used to determine the place the virus is current. The trial court docket 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 virulent disease.

… Whereas a ‘distinct and demonstrable’ bodily alteration needn’t essentially be seen and alterations at microscopic ranges would possibly 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 offered as new, there’s coated property harm, however that when ‘a mere washing’ would take away odor from a chunk of clothes whose newness was not a part of its worth, there was no ‘distinct and demonstrable’ harm to property). As has been famous by various courts, the virus could be cleaned from surfaces, and it will definitely disintegrates by itself.

Insurance coverage commentator Invoice Wilson argued partly that Covid wouldn’t be coated as a result of it may simply be cleaned and eliminated. I can respect from private expertise that cat urine odor isn’t simply cleaned and eliminated. This distinction is what the New Hampshire Supreme Courtroom perceived as nicely. 

The Covid authorized battles have virtually universally been gained by insurers with American kinds. 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 canine 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).