Tear Gas Damage Excluded by Pollution Exclusion

Our insured owns and operates a gun shop. During late evening hours while closed for business, unidentified persons broke into the store and stole several items. They activated the silent alarm which brought the police department to the scene.

The police believed the suspects were still inside the premises when they arrived. They decided to shoot tear gas into the building, with the hopes the perpetrators would surrender and exit. It was later determined that the suspects had fled the scene before the police arrived.

The insured has subsequently filed a claim for:

1. Break-in damage to the building,

2. Theft of stock,

3. Cleaning of interior areas of the building affected by the tear gas, and

4. Cleaning and replacement of clothing and other porous business property damaged by the tear gas.

The insured has a CP 10 30 04 02, Special Causes of Loss form.

We all feel comfortable providing coverage for the building damage attributed to the break-in and the theft of business property. Our question centers around the available coverage for cleaning the structure and replacing damaged business property attributed to the tear gas.

Some in the office feel the tear gas is a pollutant, where coverage is limited under the form because theft isn't a "specified cause of loss" as defined. Others believe there is an uninterrupted chain of events leading from the break-in to the police department's actions, and all damages as a result should be considered within the scope of the theft claim without limitation.

Does the tear gas fit the definition of a "pollutant" as defined in the policy forms? Should we exclude coverage for the work related to the clean-up as a result of the tear gas discharge?

New Jersey Subscriber

This part of your office is correct: "Some in the office feel the tear gas is a pollutant, where coverage is limited under the form because theft isn't a 'specified cause of loss' as defined." Tear gas would indeed be considered a pollutant and damaged caused by it would not be covered.

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