Does our policy cover a Legionella outbreak in our building?

Large building water systems with long pipe runs, low flow in unoccupied rooms, water heaters held at temperatures set for scald prevention, decorative water features, cooling towers and therapy pools together create the conditions the bacterium needs. The occupants are elderly and frequently immunocompromised, which is the population for which infection is most often fatal.

That combination is why federal requirements now direct Medicare and Medicaid certified facilities to have a water management program, and why a surveyor will ask for it. It is also why a plaintiff will ask for it on day one.

The pollution exclusion on general liability is written to exclude bodily injury arising from the discharge or release of pollutants, and carriers have argued with mixed success that bacteria in a water system fall within it. The definition of pollutant in your policy decides how strong that argument is.

The communicable disease exclusion, now common on senior care liability forms, can be worded broadly enough to cover any infectious agent rather than only person to person transmission. Read whether it is limited to transmission between people or reaches environmental sources.

And the professional liability grant may be argued not to reach the claim at all, on the theory that maintaining a water system is a building operations function rather than the rendering of professional services.

A specific carve-back for Legionella, or more broadly for waterborne pathogens, on whichever policy part your broker says is meant to respond. Get the endorsement number. A verbal assurance that the pollution exclusion would not be applied to bacteria is not a coverage position.

Then confirm the first party side separately: remediation of the water system, decontamination, business interruption from a closure or admissions hold, and crisis communication. Those costs frequently exceed the liability payment and they sit on the property policy where a pollution exclusion also lives.

A written water management program identifying control locations and limits, with monitoring records and corrective actions logged. Temperature logs at the water heater and at representative fixtures. Flushing protocols for unoccupied rooms, which is the control most often skipped and most often at issue. Cooling tower maintenance records where applicable.

The defense in a Legionella case is almost entirely documentary. An operator with a dated program and a monitoring log has a defensible position even if a case occurs. An operator with a program document and no records has the document used as the standard it failed to meet.