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The insured was remodeling the claimants' basement and sanded a concrete floor to level it. The insured used plastic to close off the basement, but dust somehow escaped from the basement and covered the upstairs living area through the heating ducts. As a result, the dwelling had to be cleaned of dust, and the owner had a loss of use while the cleaning was completed.

Does coverage apply? The policy has an absolute pollution exclusion and an asbestos/silica exclusion, so we are wondering if dust is considered a pollutant and if dust can cause property damage under the terms of this general liability policy?

Ohio Subscriber

Property damage under the CGL form is defined as loss of use of tangible property that is not physically injured, so the policy would be applicable in this instance since the claimant suffered a loss of use of his property.

As for the exclusions, dust is not the same as asbestos/silica. As for the absolute pollution exclusion, are you talking about the standard pollution exclusion in the CGL form or the total pollution exclusion endorsement? If the latter, that applies to BI or PD that would not have occurred in whole or in part but for the actual discharge, dispersal, or escape of pollutants any time. So, as long as the dust can be considered a pollutant as defined, the exclusion would apply. You would have to check with an attorney who is familiar with court rulings in your jurisdiction as to whether the courts there see dust as a pollutant. Some courts today see the pollution exclusion as applying only to environmental issues and will not apply the exclusion to things like dust in a room or paint dropped into milk.

As for the standard pollution exclusion in the CGL form, aside from the definition of "pollutant" being met, that exclusion as worded would not apply in this situation. None of the paragraphs in the pollution exclusion fit the situation as you describe it.

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