The Vermont Supreme Court, applying Vermont law, held that coverage for damage to a home caused by a contractor spraying the pesticide chlorpyrifos throughout the house to combat bed bugs was barred by a pollution exclusion in the homeowners policy.

The homeowners, Neil and Patricia Whitney, noticed bed bugs in their home shortly after a new foster child was placed with them.  At the behest of the Vermont Department of Children and Families, the Whitneys hired a contractor to eradicate the bed bugs.  The contractor sprayed the Whitneys’ home “corner to corner, wall to wall, and sprayed Whitneys’ personal effects” with the pesticide chlorpyrifos.  When the Whitneys returned to their home, the walls and surfaces of the home were visibly dripping with the pesticide.

The substance chlorpyrifos is banned for residential use, and its use violated federal and state law.  Exposure to chlorpyrifos can cause bodily injury.  Concerned about the amount of chemicals sprayed in their home, the Whitneys contacted the Vermont Department of Agriculture.  Following testing, the Whitneys were advised to stay out of their home and were thereafter unable to inhabit their home.

The Whitneys sought coverage for the claim from their homeowners insurer, Vermont Mutual Insurance Company (“Vermont Mutual”).  Vermont Mutual denied the claim based on the pollution exclusion in the homeowners policy.  The trial court determined that the pollution exclusion was ambiguous and, therefore, held that Vermont Mutual must cover the claim.  Vermont Mutual appealed, and the Vermont Supreme Court reversed the trial court.

The issue on appeal was whether the pollution exclusion clause in the property damage coverage in the homeowners policy excluded the damage to the Whitneys’ home resulting from the spraying of chlorpyrifos throughout their home.  The exclusion barred coverage for loss caused by the “discharge, dispersal, seepage, immigration, release or escape of pollutants.”  “Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The court held that the spraying of chlorpyrifos clearly constituted the “discharge, dispersal, seepage, immigration, release or escape” of the substance.  The court also held that chlorpyrifos qualified as a “pollutant.”  Because the substance is toxic to humans, “[w]e do not find it hard to conclude that, in the context of this case, the term “irritant,” “contaminant,” and “pollutant” plainly and unambiguously encompass the chlorpyrifos sprayed ‘corner to corner, wall to wall’ throughout the Whitneys’ home.”  Whitney v. Vermont Mutual Ins. Co., No. 2015-073 (Vt. 2015).