Construction Dust: Does Your Insurance Policy Consider It A Pollutant? - January 2023

Mon, Jan 23, 2023 at 8:00AM

Trent Cotney, Partner, Adams and Reese LLP

We all know that there are pollutants on construction sites. These can include noxious fumes that may be hazardous for workers and building residents. But what about construction dust?

This question was raised in a recent Northern District of Georgia insurance coverage decision. This case illustrates the intricacies of understanding insurance policies and what they cover. Specifically, it points to the Absolute Pollution Exclusion, which often is present in a General Liability Policy.

What the Absolute Pollution Exclusion Permits

An Absolute Pollution Exclusion in an insurance contract removes coverage of pollution exposure resulting from normal operations. It allows insurance companies to preclude liability for any pollution related lawsuits that involve their customers. In the 1980s, this provision became popular after insurers were on the hook for numerous lawsuits against pollution-producing companies.

What This Case Involved

In Love Lang v. FCCI Insurance Company, 530 F.Supp.3d 1299 (N.D. Ga 2021), Joel Edgar Love Jr. lived in an apartment building where construction work was being done. He sustained injuries due to the amount of construction dust produced when the construction workers removed bricks from part of the apartment building. They accomplished this by drilling holes in the grout, then cutting those holes and taking the bricks out. This process resulted in large clouds of dust entering apartment units.

The construction dust itself was not toxic. It did not contain lead, asbestos or other dangerous substances. In most cases, the dust would have been considered harmless. However, Joel Love had emphysema and the dust adversely affected his unhealthy lungs. When it accumulated in his apartment, he had to be hospitalized. Read more.

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