A recently reported case drove me a bit “batty” (pun) because it did not reach a conclusion or quoted policy provisions when considering whether a case involving bat infestations would be covered by a homeowner’s policy.1 The Court of Appeal sent the case back to the district court for further examination and development of facts.
The preliminary facts of the case, which are now still ongoing, are as follows:
According to State Farm, respondents made a claim regarding a bat infestation in 2017. However, State Farm claims that bats had been an ongoing problem on the property for several years prior to 2017. According to State Farm, Dr. Shackelford’s wife, Mrs. Shackelford, testified that before 2015 she had cleaned up from what she thought were injuries caused by mice, but later she was told that it was injuries from bats.
According to Dr. and Mrs. Shackelford signed a contract with Terminix in 2015 to remove a bat attack, which they claim was the first time they became aware of the bat problem. Dr. and Mrs. Shackelford claims that they discovered a “separate and distinct” bat infestation in July 2017 and filed a claim for that infestation on July 11, 2017. State Farm responded that the bats presented a security issue for an inspection and informed Dr. Shackelford that the bats needed to be removed before an employee at State Farm could inspect the property. According to State Farm, it was announced on December 28, 2017 that the roof of the house had been removed / replaced and that the property was available for inspection. An inspection of the home was carried out on 6 February 2018. By letter dated 27 February 2018, State Farm disputed the claim. In support of its denial, State Farm identified several issues including, but not limited to, Dr. Shackelford’s failure to notify State Farm immediately of the claim and to allow State Farm to see and / or document the removal of the roof or damage to the roof. property and lack of coverage under the insurance due to various exceptions.
My guess is that Jake from State Farm will not be showing commercials with weird losses caused by bats.
So, is there coverage for bat infestations and damage caused by bats in the home?
There is a decision that says bat poop is not covered by a homeowner’s policy due to an “exclusion of contaminants.” The Wisconsin Supreme Court ruled:
We conclude that the clause excluding pollution in car owners’ insurance excludes coverage for the loss of Hirschhorn’s home which is alleged to be the result of the accumulation of bat guano. First, we conclude that bat guano unequivocally falls within the policy definition of “pollutants”. Second, we conclude that Hirschhorn’s alleged loss was due to “emissions, discharges, flight, leakage, migration or spread” of bat guano under the simple terms of the policy exclusion clause.
Most pollutant exemptions were written to avoid the payment of industrial pollutants. The Wisconsin court is one that takes an expansive reading of this clause.
United Policyholders published a newspaper, Here’s the scoop: Bat Bajs leads to legal battle over home insurance claims, and criticizes the Wisconsin decision. It said in part:
Adam Scales, a professor at Rutgers School of Law-Camden, says courts – like the Wisconsin Supreme Court in the bat guano case – also interpret exceptions more often in favor of insurance companies. That is what happened in the Hirschhorn case, when the court finally ruled that bat guano is considered pollution under the pollution exemption.
“This particular case involves something that almost no one would intuitively think of as pollution,” says Scales. “Ask someone on the street what pollution is, and they might say something coming out of a chimney or emissions coming out of a car or some green dirt outside an industrial facility – but they probably would not think of bat feces.”
Attorney Timothy Barber pointed out to the Wisconsin Supreme Court on behalf of Auto-owners that the same court had in previous cases found three other substances considered pollutants: dust from lead paint, the smell of fuel oil that penetrated a house and the smell of a fabric softener that had contaminated some ice cream cones.
“For the last 20 to 30 years, courts have really distanced themselves from their mission to protect the consumer from unfair or misleading language in insurance and have adopted a much more insurer – friendly view of ‘pure meaning,'” Scales says. the narrow, literal meaning of a word in a policy rather than in context and how a consumer can interpret the policy.
I found an insurance agency with an excellent discussion on the subject, Are bats covered in the attic under homeowners policy? They noted that the AAIS forms have an increased exclusion of vermin, which includes bats. They recommend that you read the policy to see if there is a specific exception.
The agency’s article also indicates that policies that cover and do not exclude bat injuries will still not provide coverage for removing bats. According to that view, bat infestations are not physical damage to property.
I will definitely keep you informed of the status of the bat case. But until then, I promise you that if Batman drives his Batmobile into a home, there will be coverage.
In the late 60’s there were the three B’s: The Beatles, Batman and Bond.
1 Collectivo Coffee Roasters, Inc. v. Society Ins.No. 2021AP463, 2022 WI 36 (Wis. June 1, 2022).