I once had three black indoor cats. One or two of them started peeing on the furniture. After paying over $20,000 to replace the furniture, the cats became outdoor cats. Cat urine simply smells bad and cannot be tolerated.
The New Hampshire Supreme Court probably appreciated this when it ruled that the smell of cat urine constituted physical loss or damage in Mellin v. Northern Security Insurance Co ., 167 NH 544 (2015). I have argued that if cat smell, which just smells bad, is covered, then Covid, which can kill you, must constitute physical loss or damage.
Unfortunately, in a recent decision, the New Hampshire Supreme Court distinguished how cat urine odor could constitute physical loss or injury, but not Covid.1 Regarding the cat urine, the court noted:
Plaintiff i Middle sought to recover under their homeowner’s policy after their condominium was significantly affected by a cat urine odor emanating from a unit below… The insured and their tenant temporarily moved out of the unit at various times due to the odor. Remediation proved unsuccessful; the plaintiffs ultimately sold the condominium, claiming that the sale price was reduced because of the odor…The plaintiffs brought a declaratory judgment action against their insurer, alleging that the insurer was obligated to indemnify them for losses to their condominium caused by the cat urine odor…The policy at issue ‘insured[d] against the risk of direct loss of property. . . if that loss is a physical loss of property.”…
The district court granted summary judgment to the insurer after finding that the cat urine odor did not meet the “physical loss” requirement, and the homeowners appealed. Id. We vacated that decision, noting that while some jurisdictions had adopted a limited interpretation of “physical loss,” others recognized that an insured may suffer a “physical loss” in the absence of structural property damage. We considered that:
[P]Physical damage can include not only tangible changes to the insured property, but also changes perceived by the sense of smell that are present in the absence of structural damage. However, these changes must be distinct and detectable. Evidence that an alteration rendered the insured property temporarily or permanently unusable or uninhabitable may support a finding that the loss was a physical loss to the insured property…While we adopted a “distinct and demonstrable change” standard in Middle, we did not hold that the odor of cat urine in the property was necessarily sufficient to meet that standard…. Rather, we remanded the goal of applying that standard…. We also cautioned that “the term “physical loss” should not be construed too broad,” and cited a federal appeals court decision that recognized that direct physical loss or damage cannot be construed to apply “when property cannot be used for its intended purpose.” ‘…(quoting Pentair v. American Guarantee and Liability Ins.400 F.3d 613, 616 (8th Cir. 2005)….
Plaintiffs argue that the presence of SARS-CoV-2 on property, whether by aerosolized particles suspended in the air, or by fomits that will rest on surfaces, changes property that is safe and usable into property that is dangerous and unusable. According to the plaintiffs, this change is “distinctive” because anyone presented with property contaminated with SARS-CoV-2 and other property that is not would choose the latter. The plaintiffs claim the change is “detectable” through testing and modeling used to identify where the virus resides. The district court agreed with the plaintiffs that the alteration of the property was “distinct” because people coming into contact with property exposed to the virus put them at risk of contracting a fatal disease.
… Although a “distinct and detectable” physical change need not necessarily be visible, and changes at microscopic levels may in some circumstances meet this threshold, the mere attachment of molecules to surfaces does not change the property in a distinct and detectable way. Columbiaknit, Inc. v. Affiliated FM Ins. Co., no. Civ. 98-434-HU, 1999 WL 619100, at *6 (D. Or. Aug. 4, 1999) (holding that when clothing must be cleaned to remove an odor and cannot be sold as new, there is covered property damage, but that where “mere washing” would remove odor from an article of clothing the novelty of which was no part of its value, there was no “distinct and demonstrable” injury to property). As has been noted by a number of courts, the virus can be cleaned from surfaces and eventually disintegrates on its own.
Insurance commentator Bill Wilson argued in part that Covid should not be covered because it could be easily cleaned and removed. I can understand from personal experience that the smell of cat urine is not easy to clean and remove. This distinction is what the New Hampshire Supreme Court also understood.
The Covid legal battles have almost universally been won by insurers with American forms. This is another legal win for the insurance industry and seems to doom my cat urine smell rhetoric.
Today’s thought
Women and cats will do as they please, and men and dogs should relax and get used to the idea.
—Robert A. Heinlein
1 Schleicher & Stebbins Hotels v. Starr Surplus Lines Ins. Co.no. 2022-0155 (NH 11 May 2023).
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