The New Hampshire Supreme Court’s April decision in Mellin v. Northern Security Insurance is getting some attention, and not just because it’s fun to talk about cat pee. The case sets an important precedent regarding the definition of the term “physical loss” and the construction of pollution exclusions in New Hampshire property insurance policies. It is a decision that is likely going to create uncertainty and increased risk for insurers going forward. The scent-illating subject matter is just an added bonus.

The facts started out simple enough. The plaintiffs owned a condominium unit, and their downstairs neighbor had two feline cohabitants. The plaintiffs leased their unit to a tenant in 2009 and 2010, and that tenant noticed that something didn’t smell right. In November 2010, the tenant decided that he would rather find a new place to live than put up with the noxious odors emanating from below. Undeterred, the plaintiffs moved in themselves and promptly filed an insurance claim under their homeowner’s policy. That claim was denied.

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