HO-3 policy — A mother raccoon stows her 6 babies and one kitten under the bathroom floor of our insured's home. The entry point is discovered and closed off so that mom raccoon cannot get back to her kits, and the kits subsequently die. The insured eventually starts to smell an odor and rips the floor of the bathroom out, discovering the decaying carcasses. The area has to be cleaned out and the insulation replaced due to the contamination. Is the raccoon's decaying body a covered cause of loss and does the policy afford coverage to repair the access damage done to the bathroom?

Michigan Subscriber

The key here is which policy this is on. The HO 00 03 05 11 excludes nesting or infestation by animals, and the kits were certainly the result of nesting.

However under the HO 00 03 10 00, the exclusion is for birds, vermin, rodents or insects. Rodent is a scientific classification and is the Order of an animal. The Order of raccoons is Carnivora; if a raccoon were a rodent, the order would be Rodentia, which it isn't, so a raccoon is not a rodent. Nor is it an insect, a bird, or a vermin. Vermin by definition (Merriam Webster online) are defined as: a: small, common, harmful, or objectionable animals (as lice or fleas) that are difficult to control; b: birds and mammals that prey on game; c: animals that at a particular time and place compete (as for food) with humans or domestic animals. Raccoons aren't similar to lice or fleas, and don't truly prey on game or compete with humans for food as they are omnivores and will scavenge and eat fruit, grass, frogs, fish, mice, carrion or other edibles. Under this form, the damage would be covered.

Now, since you have a dead body the issue of pollutant comes up. Pollutants are defined as excluded, and the list of excluded items is geared towards industrial byproducts. Also, Nicholson v. Allstate Ins. Co., 979 F. Supp. 2d 1054 (E.D. Cal. 2013) speaks to this directly; in this case the court stated that the carrier failed to show that the standard pollution exclusion in the homeowners policy would be understood by a reasonable policyholder to apply to bat guano and decaying bat carcasses. So the pollution exclusion does not apply. If the animal exclusion likewise does not apply there is coverage; if the animal exclusion does apply, there is no coverage.

Take a good look at the policy language involved; that's going to determine coverage. 

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