Risk Management Implications of Spraying Chemicals to Control Mosquitoes

by Edward A. Schirick

Minimizing the Risk of West Nile Virus

West Nile Virus (WNV) continues to spread across the United States. According to the Centers for Disease Control and Prevention (CDC), all persons who reside in areas with West Nile Virus activity are at risk of getting the illness. However, persons over fifty years of age are at risk for getting the most severe illness. CDC is uncertain if persons with compromised immune systems are at greater risk for severe illness if they contract WNV.

Naturally, parents of your campers are concerned about this issue. Staff may be concerned as well. Considering the outdoor nature of the camp experience, campers and staff have a greater exposure to the risk of mosquito bites — and consequently of contracting West Nile Virus — than the general population.

Under these circumstances, many camp owners and directors are considering their options for managing the risk of illness from mosquitoes infected with WNV. The first step is education. The CDC Web site is a treasure trove of information on the subject. Go to CDC's Web site, select “Health Topics A to Z” in the left margin under Contents, and scroll down the list to West Nile Virus. CDC has extensive information on prevention, how to choose insect repellents, how to apply insect repellent on children, links to state health departments, and to mosquito control programs in various states and metropolitan areas. Use this information to develop or refine your risk management plan for WNV.

In addition, Mary K. Dagley wrote an article for The CampLine in January 2000, which discussed the broader issues of mosquito-borne illnesses. The article provides similar information to that on the CDC Web site, but is more condensed. You can view this article on the ACA web site, www.ACAcamps.org in the Knowledge Center. Choose Health and Wellness, then Health Care Staff Resources. Choose the article New Threat: Mosquito-Borne Illness.

After you have gotten the facts, follow the five steps in the risk management process (Risk Identification, Risk Evaluation, Risk Control, Risk Financing and Risk Administration). As you consider your options for managing the risk of WNV and how to finance it, take some time to consider the risk and insurance implications of spraying insecticide or herbicide on your property to kill mosquito larvae and to eliminate places where mosquitoes can lay their eggs.

Most camp general liability policies have a total pollution exclusion. This endorsement eliminates coverage for “bodily injury” or “property damage,” which would not have occurred in whole, or in part, except for the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants.

“Pollutants” in the general liability policy means “any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.” Under this definition, “bodily injury” or “property damage” from the actual spraying or dispersal of insecticide or herbicide by the camp staff on your property to control West Nile Virus, or any other pest for that matter, is probably not covered.

In addition, the general liability policy contains exclusions for “bodily injury” or “property damage” that are either expected or intended from the standpoint of the Insured. Consequently, it is possible that “bodily injury” — in the form of an allergic reaction from an insecticide or herbicide sprayed around your property — could be excluded if the insurance company determines the allergic reaction should have been expected from your standpoint.

To sum up briefly, if someone — a camper or staff person — suffers “bodily injury” or “property damage” that is the result of your staff spraying insecticides and herbicides on your camp property, your camp general liability insurance most likely provides no liability insurance protection. This could represent a significant gap in your risk management and risk transfer plan. Injury to a staff person could be covered by worker's compensation depending upon the circumstances. Camper accident medical policies will most likely provide coverage for medical expenses if a camper suffers an allergic reaction to chemicals. But this is limited protection.

If your analysis leads you to conclude you must spray to control mosquitoes, there is a Pesticide or Herbicide Applicator insurance coverage endorsement, which can be attached to the general liability policy. The endorsement, which appears to be available in all states, provides coverage for “bodily injury” or “property damage” arising from the intentional act of spraying insecticide or herbicide. The endorsement grants coverage only “if all of the standards of any statute, ordinance, regulation, or license requirement of any federal, state, or local government which apply to the operation are met.”

While this endorsement may be available, your particular camp liability underwriter may not be willing to provide it. Or, you may not want to go to the trouble of learning about all of the standards and statutes and training required for one or more of your staff to be licensed to apply the chemicals.

An alternative to spraying yourself is to hire an independent contractor to do the spraying on your premises. By taking this approach, you transfer some of the risk to the pest control operator’s insurance. Request an additional insured endorsement from the pest control company’s liability insurer, as respects the contractor’s ongoing services for your camp. Under these circumstances, if a claim occurs that is covered by the insurance, the pest control contractor’s policy should pay on your behalf.

However, this should not be assumed, and these situations are never “black and white.” Seek clarification about how the contractor’s insurance applies in this situation. Remember not all insurance is the same. There can be significant differences in coverage among policies, which may be labeled liability insurance. Your insurance agent or broker can help here. Using an independent contractor and getting an additional insured endorsement insurance does not eliminate the risk. And you should not rely upon the independent contractor’s insurance entirely. Continue to take other actions to reduce, prevent, and avoid mosquito bites. Build your risk management plan and live it!
 

Originally published in the 2003 Winter issue of The CampLine.
 

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