What General Counsel Should Know About Legionnaires’ Disease

Legionnaires’ disease poses a serious liability risk to those responsible for the development, design, engineering, construction, manufacture, installation, maintenance and repair of buildings, building systems and components identified as a cause or source of an outbreak. Manufacturers of HVAC equipment, water heaters, water tanks, plumbing fixtures and supplies – as well as companies that include these items in their products, such as mobile home, motorhome and travel trailer makers – are at risk.

Claims have also been brought against the owners and operators of hotels, hospitals, shopping malls and senior housing facilities, under negligence theory. More recently, savvy plaintiffs’ attorneys have begun to target manufacturers. These suits typically allege product design, manufacture, and instructions and warnings defects. They seek recovery under strict product liability and for breach of express and implied warranty.

It is becoming common for insurance policies to contain language excluding legionella-related claims, and parties may find they are not covered. Standard ISO exclusions have been judicially interpreted to support a denial of coverage.

The American Industrial Hygiene Association and The American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. have published guidelines for the management and control of the legionnaires’ bacteria, but no court has declared that any particular guideline is a definitive standard of care. The trend is moving toward an expectation that designers, owners, and managers of buildings with complex water systems and water features have a solid appreciation of the risk and implement a proactive approach.