Frederick W. Preisler v. Kuettel's Septic Service, LLC

• Court: Wisconsin Supreme Court
• Decided: December 30, 2014
• Docket: 2012AP002521
• Status: Published

Opinion

2014 WI 135

SUPREME COURT OF WISCONSIN CASE NO.: 2012AP2521 COMPLETE TITLE: Tina L. Preisler and Frederick W. Preisler, Plaintiffs-Co-Appellants-Petitioners, v. General Casualty Insurance Company, Regent Insurance Company, Hastings Mutual Insurance Company and Secura Insurance, a mutual company, Defendants-Respondents, Kuettel's Septic Service, LLC, 4-DK Farm, Duke Kuettel, Doug Kuettel, Dale Kuettel and Cheryl Kuettel, Defendants-Appellants-Petitioners.

------------------------------------------------ Tina L. Preisler and Frederick W. Preisler, Plaintiffs-Appellants-Petitioners, v. Chartis Specialty Insurance Company f/k/a American International Specialty Lines Insurance Company, Defendant, Rural Mutual Insurance Company, Defendant-Respondent, Phil's Pumping and Fab, Inc., Defendant-Co-Appellant-Petitioner.

REVIEW OF A COURT OF APPEALS DECISION (Reported at 352 Wis. 2d 754, 843, N.W.2d 710) (Ct. App. 2014 – Unpublished)

OPINION FILED: December 30, 2014 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 12, 2014

SOURCE OF APPEAL: COURT: Circuit COUNTY: Outagamie JUDGE: Michael W. Gage

JUSTICES: CONCURRED: BRADLEY, J., concurs. (Opinion filed.) DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.) NOT PARTICIPATING: ATTORNEYS: For the defendants-appellants-petitioners, there were briefs by Michael C. Menghini and Herrling Clark Law Firm Ltd., Appleton, and oral argument by Michael C. Menghini.

For the defendant-co-appellant-petitioner, there were briefs by Winston A. Ostrow, Jonathan T. Smies, and Godfrey & Kahn, S.C., Green Bay, and oral argument by Jonathan T. Smies.

For the plaintiffs-co-appellants-petitioners, there were briefs by James A. Olson, P. Scott Hassett, Kathryn A. Harrell, Daniel S. Lenz, and Lawton & Cates, S.C., Madison, and oral argument by James A. Olson.

For defendant-respondent Rural Insurance Company, there was a brief by Christine M. Rice, Matthew J. Van Keulen, and Simpson & Deardorff, S.C., Milwaukee. Oral argument by Christine M. Rice.

For defendant-respondent Hastings Mutual Insurance Company, there was a brief by William R. Wick, Ryan R. Graff, Katelyn P. Sandfort, and Nash, Spindler, Grimstad & McCracken LLP, Manitowoc, and oral argument by Ryan R. Graff.

For defendants-respondents General Casualty Company of Wisconsin and Regent Insurance Company, there was a brief and oral argument by Jeffrey A. Evans and von Briesen & Roper, S.C., Milwaukee.

For defendant-respondent Secura Insurance, there was a brief and oral argument by Todd Joseph Koback, John P. Runde, and Davczyk & Varline, LLC, Wausau.

2 3 2014 WI 135 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2012AP2521 (L.C. No. 2010CV2601 & 2011CV706)

STATE OF WISCONSIN : IN SUPREME COURT

Tina L. Preisler and Frederick W. Preisler,

Plaintiffs-Co-Appellants-Petitioners,

v.

General Casualty Insurance Company, Regent Insurance Company, Hastings Mutual Insurance Company and Secura Insurance, a mutual company,

Defendants-Respondents,

Kuettel's Septic Service, LLC, 4-DK Farm, Duke Kuettel, Doug Kuettel, Dale Kuettel and Cheryl Kuettel, FILED Defendants-Appellants-Petitioners. DEC 30, 2014 ---------------------------------------------- Diane M. Fremgen Tina L. Preisler and Frederick W. Preisler, Clerk of Supreme Court

Plaintiffs-Appellants-Petitioners,

Chartis Specialty Insurance Company f/k/a American International Specialty Lines Insurance Company,

Defendant,

Rural Mutual Insurance Company,

Defendant-Respondent, Phil's Pumping and Fab, Inc.,

Defendant-Co-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision

of the court of appeals1 affirming an order of the circuit court2

that granted summary judgment to Rural Mutual Insurance Company,

Regent Insurance Company and General Casualty Company of

Wisconsin. Our review focuses on the interpretation of

pollution exclusion clauses in commercial and contractor general

liability insurance policies.

¶2 We conclude that a reasonable insured would understand

that decomposing septage is a "contaminant" and therefore, a

"pollutant" as defined in the policies when it has decomposed

and seeps into a water supply. Accordingly, we affirm the

decision of the court of appeals, which granted summary judgment upon its conclusion that the pollution exclusion clause

precluded coverage for harm resulting from the Preislers' water

supply's contamination.

1 Preisler v. Kuettel's Septic Serv., LLC, No. 2012AP2521, unpublished slip op. (Ct. App. Jan. 14, 2014). 2 The Honorable Michael W. Gage of Outagamie County presided.

2 No. 2012AP2521

¶3 We also conclude that the petitioners failed to

petition this court for review of the court of appeals dismissal

of their claims against Hastings Mutual Insurance Company and

Secura Insurance Company on alternative grounds. We decline to

consider issues not raised in petitions for review. State v.

Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999); Wis. Stat.

§ 809.62 (2011-12).3 Accordingly, those dismissals are not

before us.

I. BACKGROUND

¶4 This review involves an insurance coverage dispute

concerning a pollution exclusion clause commonly found in

commercial general liability (CGL) policies. The historic facts

are not in dispute.

¶5 Fred and Tina Preisler operate a dairy farm and raise

cattle. A well drilled in 1972 supplied water for the

Preislers' household and farm uses until 2008.

¶6 Duke, Doug, Dale, and Cheryl Kuettel live on a farm

across the road from the Preislers' farm. From that property, the Kuettels run a farming operation, 4-DK Farm, and a septic

pumping service, Kuettel's Septic Service, LLC. Kuettel's

Septic hauls, stores, and disposes of the waste it pumps from

customers' septic tanks. Kuettel's Septic also collects waste

from grease traps, floor pits, and car washes, which it combines

with the human waste from septic tanks. Kuettel's Septic

3 All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated.

3 No. 2012AP2521

periodically hired Phil's Pumping and Fab, Inc. to dispose of

septage.4

¶7 Septage is primarily composed of human urine and fecal

material, as well as other materials disposed of in septic

tanks, grease interceptors and portable restrooms. See Wis.

Admin. Code § NR 113.03(55) (Feb. 2014) (defining septage).

Septage contains nitrogen, and when septage is introduced into

soil, it decomposes. During that biological process nitrates

are formed. Mike O'Leary et al., Understanding Nitrogen in

Soils, Univ. of Minn. (2002)

http://www.extension.umn.edu/agriculture/nutrient-

management/nitrogen/understanding-nitrogen-in-soils/.

¶8 When nitrates are created in excess of what plants are

able to use, nitrates can leach into water supplies. Id. The

presence of nitrates in water supplies is a concern for human

health as it may cause health problems in infants and may be

implicated as a risk factor associated with chronic health and

reproductive problems. Nonpoint Source Pollution Abatement Program Redesign, Nitrate in Groundwater - A Continuing Issue

for Wisconsin Citizens 3 (1999). Additionally, high nitrate

4 We will subsequently refer to Fred and Tina Preisler as "the Preislers." We will refer to Kuettel's Septic, 4-DK Farm, the individual Kuettels, and Phil's Pumping collectively as "the Kuettels." We will refer to the insurance companies either collectively as "the insurers" or individually as "Regent" or "Rural."

4 No. 2012AP2521

levels may cause poor appetite or acute nitrogen poisoning in

livestock. Id.

¶9 Fred Preisler and Duke Kuettel discussed applying

septage on the Preislers' farm as fertilizer. Kuettel's Septic

received permission from the Wisconsin Department of Natural

Resources (DNR) to apply it. Kuettel's Septic applied septage

to the Preislers' farm fields for several years.

¶10 In 2008, the Preislers experienced problems with their

well water. The Preislers' cattle that drank the water began to

die at an uncharacteristic rate. The Preislers further noted a

decrease in milk production. August 2008 testing showed the

Preislers' well water contained elevated levels of nitrates,

which are produced as septage decomposes. The cattle deaths

subsided later in 2008 after the Preislers drilled a new well.

¶11 The Preislers sued Kuettel's Septic in 2010 and Phil's

Pumping in 2011. The cases were consolidated and 4-DK Farm and

the individual Kuettels were added. The Preislers alleged

negligence in storing and in applying septage resulting in nuisance and trespass. They also alleged the Kuettels were

strictly liable for engaging in an abnormally dangerous activity

and that Duke Kuettel violated Wis. Stat. § 100.18 by promising

compliance with DNR regulations, failing to follow through, and

falsifying DNR reports.

¶12 The Preislers added the parties' insurers to the suit.

Hastings insured Kuettel's Septic under a CGL policy between

1999 and 2005, after which Regent insured Kuettel's Septic (General Casualty Insurance Company did not insure any party, 5 No. 2012AP2521

but is affiliated with Regent). Hastings also insured 4-DK Farm

under a CGL policy until 2007, after which Secura insured 4-DK

Farms. Secura also provided homeowners insurance to individual

Kuettels.5 Rural insured Phil's Pumping under a CGL policy

between 2002 and 2013.

¶13 The Rural and Regent policies include similarly worded

pollution exclusion clauses. They exclude harm "arising out of

the actual, alleged, or threatened discharge, dispersal,

seepage, migration, release or escape of 'pollutants'. . . ."

The Rural and Regent policies also define "pollutants" similarly

as: "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."

5 The homeowners policies are not at issue in this appeal. They do not include pollution exclusion clauses, and the circuit court determined another exclusion applied. The parties do not challenge this determination, and we do not address it. See Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1992) (appellate courts need not consider issues not specifically raised on appeal).

6 No. 2012AP2521

¶14 The insurers moved for summary and declaratory

judgment.6 The circuit court agreed that the pollution exclusion

clause applies to preclude coverage for alleged losses arising

out of storage of septage and application of septage to farm

fields that is alleged to have caused contamination of the water

supply resulting in harm to the Preislers. The Preislers and

Kuettels appealed, arguing septage is not a pollutant and

therefore, the exclusion does not preclude coverage. The court

of appeals affirmed.

¶15 On April 17, 2014 we granted the Preislers' and

Kuettels' petitions for review. On May 21, 2014, Secura filed a

motion for summary disposition in this court on the alternative

basis of a limited liability endorsement. Initially, we held

the motion in abeyance. We need not address Secura's motion as

Secura's liability is not before us as we explain below.

II. DISCUSSION

A. Standard of Review

¶16 The Preislers and Kuettels ask the court to review the applicability of the pollution exclusion clause, upon which the

6 Rural and Regent moved for summary judgment. Hastings and Secura moved for summary and declaratory judgment. All insurers argued they had no duty to defend or indemnify the various insureds. The policies we address are Regent's Contractors General Liability Coverage policy for Kuettel's Septic, LLC and Rural's Commercial General Liability Coverage policy for Phil's Pumping and Fab, Inc. We do not discuss the pollution exclusion clauses in Hastings' and Secura's policies because the parties did not petition for review of the court of appeals' dismissal of claims against Hastings and Secura, on alternative grounds.

7 No. 2012AP2521

circuit court and the court of appeals relied to grant summary

judgment dismissing Rural and Regent from this lawsuit. When we

review summary judgment, we independently apply the same

methodology as the circuit court and the court of appeals. The

standards set forth in Wis. Stat. § 802.08 are our guides.

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶20, 338 Wis. 2d

761, 809 N.W.2d 529 (reviewing summary judgment denying coverage

for property harm from accumulation of bat guano); Siebert v.

Wis. Am. Mut. Ins. Co., 2011 WI 35, ¶27, 333 Wis. 2d 546, 797

N.W.2d 484 (reviewing summary judgment denying coverage in

negligent entrustment claim); Peace v. Nw. Nat'l Ins. Co., 228

Wis. 2d 106, 119-20, 596 N.W.2d 429 (1999) (reviewing summary

judgment denying coverage for claims arising from ingestion of

lead); Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224,

229-30, 564 N.W.2d 728 (1997) (reviewing summary judgment

denying coverage for injuries resulting from buildup of carbon

dioxide). Summary judgment "shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." § 802.08(2).

¶17 The parties do not dispute the material facts giving

rise to the Preislers' loss.7 Rather, the sole issue is whether

the pollution exclusion clause in the insurance policies

7 See Preisler, No. 2012AP2521, unpublished slip op., ¶12.

8 No. 2012AP2521

excludes coverage for harm the Preislers allege they sustained

due to contamination of their water supply by decomposing

septage. The interpretation of an insurance policy is a

question of law that we review independently. Siebert, 333

Wis. 2d 546, ¶28.

B. Policy Interpretation

¶18 This case requires us to interpret the pollution

exclusion clause as it applies to decomposing septage that

entered a water supply. We must determine whether it is a

pollutant within the meaning of the pollution exclusion clause

of the insurance policies. The primary task in contract

interpretation is to determine and carry out the parties'

intentions. Hirschhorn, 338 Wis. 2d 761, ¶22; Am. Family Mut.

Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673

N.W.2d 65. We interpret insurance policy language according to

its plain and ordinary meaning as understood by a reasonable

insured. Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d

at 120-21. ¶19 Terms, words, or phrases in an insurance policy are

ambiguous rather than plain if they are "fairly susceptible to

more than one reasonable interpretation." Hirschhorn, 338

Wis. 2d 761, ¶23; accord Peace, 228 Wis. 2d at 121. Policy

language is not ambiguous merely because more than one

dictionary definition exists or the parties disagree about its

meaning. Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d

at 136. Policy language also is not ambiguous because different

9 No. 2012AP2521

courts have come to differing interpretations. Peace, 228

Wis. 2d at 136.

¶20 Policy language is ambiguous when a reasonable insured

would read the policy to provide coverage and the language is

susceptible to more than one reasonable interpretation. See

Donaldson, 211 Wis. 2d at 235. If coverage is ambiguous, the

court's construction is constrained and ambiguities are

construed against the insurer and in favor of coverage.

Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d at 121;

Donaldson, 211 Wis. 2d at 230.

1. Initial grant of coverage

¶21 The insurers, in disputing the policies' grant of

coverage to the Kuettels, are disputing their duties to defend

and indemnify. We determine an insurer's duty to defend "by

comparing the allegations of the complaint to the terms of the

insurance policy." Estate of Sustache v. Am. Family Mut. Ins.

Co., 2008 WI 87, ¶20, 311 Wis. 2d 548, 751 N.W.2d 845.

"[A]llegations contained within the four corners of the complaint" trigger the duty to defend. Id. We focus on the

nature, rather than the merits, of the claim. Id. The duty to

defend is broader than the duty to indemnify, "insofar as the

former implicates arguable, as opposed to actual, coverage."

Id. We construe allegations in the complaint liberally and

assume all reasonable inferences. Id., ¶21. The Preislers'

complaint includes allegations of negligent septage application

and storage by the Kuettels.

10 No. 2012AP2521

¶22 Our procedure for determining whether coverage exists

under an insurance policy follows three steps. First, we

examine the facts of the insured's claim to decide whether the

policy makes an initial grant of coverage for the claim set out

in the complaint. Am. Girl, 268 Wis. 2d 16, ¶24. The analysis

ends there if the policy clearly does not cover the claim. Id.

However, if the claim set out in the complaint triggers a

potential grant of coverage, we secondly examine whether any of

the policy's exclusions preclude coverage for that claim. Id.

Third, if an exclusion precludes coverage, we analyze exceptions

to the exclusion to determine whether any exception reinstates

coverage. Id.

¶23 The parties did not argue the Preislers' claims fall

outside the policies' grant of coverage. The court of appeals

assumed without deciding that the policies at issue

affirmatively grant coverage.8 However, we nevertheless consider

whether there is a potential grant of coverage because it aids

in our evaluation of the historic facts in the context of the pollution exclusion.

¶24 Coverage is triggered by an occurrence. Regent's and

Rural's policies provide that they "appl[y] to 'bodily injury'

and 'property damage' only if: (1) The 'bodily injury' or

'property damage' is caused by an occurrence." (Emphasis

added.) The policies define "occurrence" identically:

8 Preisler, No. 2012AP2521, unpublished slip op., ¶15.

11 No. 2012AP2521

"'[o]ccurrence' means an accident, including continuous or

repeated exposure to substantially the same general harmful

conditions." We interpret policy language according to its

plain and ordinary meaning as understood by a reasonable

insured. Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d

at 120-21.

¶25 We turn to Couch on Insurance for its description of

"occurrence" in pollution exclusion cases:

Due to the fact that most policies define an "occurrence" to mean an "accident," the pollution coverage issue often turns upon the intent of the insured. In making this determination, jurisdictions have focused on different aspects of the polluting process to assess the mindset of the insured. Most courts have focused on the damage caused by the pollution and have concluded that there is an occurrence when the insured did not expect or intend the resultant damage. 9 Steven Plitt et al., Couch on Insurance § 127.4 (2008).

¶26 We have interpreted whether certain circumstances fall

within policy definitions of "occurrence." In American Girl, we

determined that soil settlement that occurred because of faulty

site-preparation advice of a soil engineer was an "occurrence."

Am. Girl, 268 Wis. 2d 16, ¶38. The policy's definition of

"occurrence" was the same as here, and we focused on defining

"accident." Id., ¶37. We looked to a dictionary definition:

"'The word "accident," in accident policies, means an event

which takes place without one's foresight or expectation. A

result, though unexpected, is not an accident; the means or cause must be accidental.'" Id. (quoting Black's Law Dictionary

12 No. 2012AP2521

15 (7th ed. 1999)). We considered two causes of property

damage, both the inadequate site-preparation advice and the

actual settling of the soil, and found neither was intended,

anticipated, or expected. Id., ¶38. We therefore held the

accidental circumstances underlying the claim constituted an

"occurrence" within the policy's definition. Id.

¶27 Interpreting American Girl, the court of appeals has

held accidental soil contamination was an "occurrence," where

the policy provided no definition. United Coop. v. Frontier FS

Coop., 2007 WI App 197, ¶¶12, 15, 304 Wis. 2d 750, 738 N.W.2d

578. The court acknowledged that American Girl required focus

on the "event or series of events that allegedly caused the

alleged bodily injury or property damage." Id., ¶16. United

Coop. lacked any specific facts on how the soil contamination

occurred, but nevertheless concluded that the contamination was

an "occurrence" because it caused property damage to

groundwater. Id., ¶¶20, 35.

¶28 As with American Girl and United Coop., the facts of this case, if proved, present an "occurrence" triggering an

initial grant of coverage. Here, the "accident" was the seepage

of decomposing septage into the Preislers' water supply.

Seepage into the water supply was not "intended, anticipated, or

expected." Am. Girl, 268 Wis. 2d 16, ¶38. Seepage of

decomposing septage into the water supply is an occurrence, as

was the settling soil in American Girl and the soil

contamination in United Coop. Id.; United Coop., 304 Wis. 2d 750, ¶20. Here, the resulting harm is water with elevated 13 No. 2012AP2521

nitrate levels. See United Coop., 304 Wis. 2d 750, ¶35 (stating

an occurrence caused property damage to groundwater).

2. Pollution exclusion

¶29 Next, we examine whether either of the policies'

exclusions preclude coverage at the time of the occurrence. See

Am. Girl, 268 Wis. 2d 16, ¶24. Typically, to resolve whether a

pollution exclusion applies, we first determine whether the

substance in question falls unambiguously within the policy's

definition of pollutants. Hirschhorn, 338 Wis. 2d 761, ¶25

(determining whether bat guano is unambiguously a pollutant);

Peace, 228 Wis. 2d at 119 (determining whether lead present in

paint is unambiguously a pollutant); Donaldson, 211 Wis. 2d at

229 (determining whether exhaled carbon dioxide is unambiguously

a pollutant). Then, if the substance fits within the policy's

definition of pollutants, we determine whether the alleged loss

resulted from the "discharge, dispersal, seepage, migration,

release or escape" of the substance under the plain terms of the

policy's pollution exclusion clause. Hirschhorn, 338 Wis. 2d 761, ¶25; Peace, 228 Wis. 2d at 119; Donaldson, 211 Wis. 2d at

229.

¶30 However, the parties do not appeal the circuit court's

ruling that the Preislers' alleged damage resulted from the

"discharge, dispersal, seepage, migration, release or escape of"

decomposing septage within the meaning of the terms in the

14 No. 2012AP2521

pollution exclusion clause.9 Therefore, we are presented with

the sole inquiry of whether, at the time of the occurrence that

triggered coverage, the decomposing septage is a pollutant

within the policies' definition.

a. limited inquiry

¶31 We need to determine only whether decomposing septage

is a pollutant as it seeped into the Preislers' water supply.

There is no occurrence until that seepage into the water supply

takes place. Our approach of construing whether a substance is

a pollutant at the point it harms the interests of another is

consistent with our previous pollution exclusion decisions. As

we explain below, those decisions focused on the event giving

rise to the alleged harm at issue, rather than on an initial

event that may have involved a beneficial use of the substance.

Peace, 228 Wis. 2d at 126; U.S. Fire Ins. Co. v. Ace Baking Co.,

164 Wis. 2d 499, 501, 476 N.W.2d 280 (Ct. App. 1991).

¶32 Peace and Ace Baking are particularly instructive. In

Peace, harm resulted from the release of lead paint chips, flakes, and dust into a home painted with lead paint. Peace,

228 Wis. 2d at 111. We focused not on lead intentionally used

in paint for a beneficial purpose, but rather on release of lead

from the paint on the walls into the air or onto the floor as

the substance that gave rise to an occurrence under the language

9 See Preisler, No. 2012AP2521, unpublished slip op., ¶39 (failing to challenge the circuit court's conclusion at the court of appeals).

15 No. 2012AP2521

of the policy. See id. at 126 ("Conceptually, we view the lead

not as contaminating the paint but as giving the paint the

potential to contaminate air, water, and the human body when it

disperses."). Therefore, although lead had a beneficial use in

the paint when it was applied to the walls, our evaluation of

whether lead was a pollutant was made when harm occurred.

¶33 In Ace Baking, fabric softener and ice cream cones

were stored in the same warehouse, and a fragrance additive to

the fabric softener spread to the ice cream cones, making them

taste like soap. Ace Baking, 164 Wis. 2d at 500. The court of

appeals determined that the fragrance in the fabric softener

became a pollutant when it spread to the ice cream cones stored

in the same warehouse, even though the court would not have

considered it a pollutant if it had stayed in the fabric

softener. Id. at 505. The court said, "it is a rare substance

indeed that is always a pollutant; the most noxious of materials

have their appropriate and non-polluting uses." Id. Peace and

Ace Baking support our conclusion that we apply the definition of pollutant at the time of the occurrence, i.e., when

decomposing septage entered Preislers' well, rather than the

allegedly negligent application of septage to fields.

b. reasonable insured

¶34 The pollution exclusion clause provides, "[t]his

insurance does not apply to: . . . 'Bodily injury' or 'property

damage' arising out of the actual, alleged or threatened

discharge, dispersal, seepage, migration, release or escape of 'pollutants'." Each policy defines "pollutants" as "any solid, 16 No. 2012AP2521

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." The policy does not further define contaminant.

¶35 We construe these terms according to their plain and

ordinary meanings as understood by a reasonable person in the

position of the insured. Hirschhorn, 338 Wis. 2d 761, ¶22;

Peace, 228 Wis. 2d at 120-21. Our decisions in Donaldson, Peace

and Hirschhorn are instructive in determining the meaning of

contaminant and therefore, pollutant. Furthermore, the limiting

principles applied in Donaldson and Langone aid us in

determining a reasonable insured's understanding of the meaning

of pollutant and contaminant. Donaldson, 211 Wis. 2d at 232;

Langone v. Am. Family Mut. Ins. Co., 2007 WI App 121, ¶22, 300

Wis. 2d 742, 731 N.W.2d 334.

¶36 First, in Donaldson, we held that the pollution

exclusion clause did not preclude coverage for personal injury

claims stemming from inadequate ventilation of exhaled carbon dioxide in an office building. Donaldson, 211 Wis. 2d at 235.

We concluded a reasonable insured would not understand exhaled

carbon dioxide to fall within the policy's definition of

pollutants. Id. at 231-32. We recognized the pollutant

definition was broad: "'irritant' and 'contaminant,' when

viewed in isolation, are virtually boundless, for there is

virtually no substance or chemical in existence that would not

irritate or damage some person or property." Id. at 232 (quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. 17 No. 2012AP2521

Co., 976 F.2d 1037 (7th Cir. 1992)). Therefore, we warned that

"[t]he reach of the pollution exclusion clause must be

circumscribed by reasonableness, lest the contractual promise of

coverage be reduced to a dead letter." Id. at 233. We

concluded that the plaintiffs' injuries resulted from an

everyday activity "gone slightly, but not surprisingly, awry."

Id. (quoting Pipefitters, 976 F.2d at 1043-44). We explained it

was significant that exhaled carbon dioxide is "universally

present and generally harmless in all but the most unusual

instances" and that exhaled carbon dioxide is a necessary and

natural part of life. Id. at 234. Accordingly, we held that

"the pollution exclusion clause is ambiguous because [the

insured] could reasonably expect coverage on the facts of this

case." Id. at 233.

¶37 Two years later, in Peace, we held that a pollution

exclusion clause excluded coverage for personal injury claims

arising out of a minor's ingestion of lead-based paint chips,

flakes, and dust present in the insured's apartment. Peace, 228 Wis. 2d at 110-11. We concluded once the previously contained

pollutant, lead, "begins to disperse, discharge, or escape from

the containment of the painted surface, it falls within the

plain language of the pollution exclusion clause." Id. at 130.

¶38 Before coming to our conclusion, we consulted a non-

legal dictionary to define contaminant and irritant. Id. at

122. We applied these common definitions to the plaintiff's

claims and concluded there was "little doubt that lead derived from lead paint chips, flakes, or dust is an irritant or serious 18 No. 2012AP2521

contaminant." Id. at 125. We noted the physical consequences

of lead paint used in a home were well-documented. Id. at 123-

24. "Lead poisoning from paint at residential properties is

generally caused by the inhalation of lead-contaminated dust

particles or toxic lead fumes through respiration or the

ingestion of lead-based paint chips by mouth. The consequences

can be disastrous for children." Id. We distinguished

Donaldson because lead paint chips, flakes and dust "are widely,

if not universally, understood to be dangerous," while carbon

dioxide is not. Id. at 137. Therefore, "[r]easonable owners of

rental property[, the insureds,] understand their obligation to

deal with the problem of lead paint." Id. at 138.

¶39 Most recently, in Hirschhorn, we held bat guano

unambiguously falls within the term, "pollutants," as defined by

the insurance policy because it constituted an irritant and a

contaminant. Hirschhorn, 338 Wis. 2d 761, ¶¶33-34. We referred

both to dictionary definitions of the terms and health

consequences of human proximity to bat guano. Id., ¶33. We concluded a reasonable insured would consider bat guano to be

waste, referencing the dictionary definition of the term. Id.,

¶34.

¶40 In the instant case, the issue is whether a reasonable

insured would consider decomposing septage to be a pollutant

when it seeps into a water supply. Again, we interpret policy

language according to its plain and ordinary meaning as

understood by a reasonable insured. Id., ¶22; Peace, 228 Wis. 2d at 120-21. When determining the ordinary meaning of 19 No. 2012AP2521

words not defined in an insurance policy, it is appropriate to

look to the definitions in a non-legal dictionary. Weimer v.

Country Mut. Ins. Co., 216 Wis. 2d 705, 723, 575 N.W.2d 466

(1998); Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 745,

456 N.W.2d 570 (1990).

¶41 As explained above, we accepted a non-legal dictionary

definition of contaminant in Peace, 228 Wis. 2d at 122. We

determined the ordinary meaning of contaminant is one that

contaminates, and contaminate means "'[t]o make impure or

unclean by contact or mixture.'" Id. at 122 (quoting American

Heritage Dictionary of the English Language 406 (3d ed. 1992)

[hereinafter American Heritage Dictionary]).

¶42 In determining whether a substance is a contaminant

and therefore a pollutant, the focus is on the event causing

harm because that is the occurrence triggering coverage. Id. at

126. Here, the event causing harm is decomposing septage

seeping into the water supply. A reasonable insured would

understand decomposing septage to be a contaminant when it seeps into a water supply.

¶43 Handling, storing, and applying septage are activities

regulated by both the DNR and the United States Environmental

Protection Agency. See generally 40 C.F.R. § 503 (2013)

(federal regulation of domestic septage); Wis. Admin. Code §§ NR

113-114 (Feb. 2014) (state regulation of septage). Publications

produced to guide septage haulers and storers recognize septage

may be harmful and have the potential to affect health of humans and livestock. EPA, A Plain English Guide to the EPA Part 503 20 No. 2012AP2521

Biosolids Rule 2 (1994), available at

http://water.epa.gov/scitech/wastetech/biosolids/503pe_index.cfm

; Wis. DNR, Septage Operator Servicing Handbook and Study Guide

8-9 (2013), available at

http://dnr.wi.gov/regulations/opcert/documents/septagestudyguide

.pdf [hereinafter "WDNR Septage Handbook"]. The government's

regulation of septage contributes to reasonable insureds'

awareness of the health risks of septage hauling, storing, and

application. See Peace, 228 Wis. 2d at 150 (Bradley, J.,

concurring) (noting regulatory restriction of lead use and

pollutant status despite intentional application).

¶44 Limiting principles that consider the nature of the

substance ensure that our construction of a pollution exclusion

clause is consistent with the understanding of a reasonable

insured. Donaldson, 211 Wis. 2d at 232 (citing Pipefitters, 976

F.2d at 1043); Langone, 300 Wis. 2d 742, ¶22. These principles

apply to aid in the overarching reasonable insured analysis.

See Hirschhorn, 338 Wis. 2d 761, ¶30 (tying the limiting principle back to a reasonable insured's understanding); Peace,

228 Wis. 2d at 136-38 (addressing limiting principle within the

understanding of a reasonable insured); Donaldson, 211 Wis. 2d

at 233-34 (placing limiting principles in context of a

reasonable insured); Langone, 300 Wis. 2d 742, ¶¶17-18

(discussing limiting principle in context of a reasonable

insured).

¶45 One such limiting principle applies whenever the substance is "universally present and generally harmless in all 21 No. 2012AP2521

but the most unusual instances." Donaldson, 211 Wis. 2d at 234.

In those instances, we are hesitant to conclude that such a

substance is a pollutant. Id. Both Donaldson and Langone

considered the gasses at issue to be "universally present and

generally harmless in all but the most unusual instances." Id.;

see also Langone, 300 Wis. 2d 742, ¶19 ("Like carbon dioxide,

carbon monoxide is colorless, odorless, and present in the air

around us.").

¶46 Individual components of septage are common.10

Septage is a waste product with use as a farm fertilizer.

Application of septage comes with risks to water supplies

because decomposing septage can release high levels of nitrates,

which can be dangerous to humans and cattle if they reach water

supplies. WDNR Septage Handbook at 8-9. Septage is not

generally harmless nor is it the type of pervasive substance

considered in Donaldson and Langone. See Donaldson, 211 Wis. 2d

at 234; Langone, 300 Wis. 2d 742, ¶19.

¶47 A second limiting principle is that if the harm results from "everyday activities gone slightly, but not

surprisingly, awry," a reasonable insured would not necessarily

understand the substance to be a pollutant. Pipefitters, 976

10 In Guenther v. City of Onalaska, 223 Wis. 2d 206, 588 N.W.2d 375 (Ct. App. 1998), the court of appeals held the pollution exclusion clause did not apply to the occurrence of a domestic sewer backup. Id. at 208. Guenther is distinguishable, as there the court concluded the policy covered damage resulting from the liquid, non-toxic nature of the sewage backup. Id.

22 No. 2012AP2521

F.2d at 1043-44; accord Peace, 228 Wis. 2d at 158; Donaldson,

211 Wis. 2d at 233. Exposure of decomposing septage to the

Preislers' water supply is not "an everyday activity 'gone

slightly, but not surprisingly, awry.'" See Donaldson, 211

Wis. 2d at 233 (quoting Pipefitters, 976 F.2d at 1043-44);

Langone, 300 Wis. 2d 742, ¶19.

¶48 To explain further, in Langone, a gas-burning boiler

caused an excess of carbon monoxide and caused the harm at

issue. Langone, 300 Wis. 2d 742, ¶¶2-3. The court of appeals

noted the common exposure of individuals to some carbon monoxide

in homes, especially in the presence of stoves with gas burners.

Id., ¶19. However, the exposure of water supplies to

decomposing septage is not an everyday activity, as evidenced by

the protective regulatory mechanisms surrounding the hauling,

storing, and application of septage that are designed to prevent

invasion of water supplies. 40 C.F.R. § 503 (2013); Wis. Admin.

Code §§ NR 113-114 (Feb. 2014).

¶49 Additionally, we have already rejected an attempt to equate application of a contaminant to the surrounding

environment with exhalation of an omnipresent gas. Peace, 228

Wis. 2d at 137-38 (differentiating release of lead paint from

exhaling carbon dioxide). A reasonable insured would not

understand exposure of water supplies to decomposing septage as

"an everyday activity 'gone slightly, but not surprisingly,

awry.'" See Donaldson, 211 Wis. 2d at 233 (quoting Pipefitters,

976 F.2d at 1043-44); Langone, 300 Wis. 2d 742, ¶19.

23 No. 2012AP2521

¶50 Furthermore, that septage fits the ordinary meaning of

waste, which the policies expressly list as a pollutant,

supports our conclusion that septage is a pollutant when it

seeps into a water supply. Septage is primarily composed of

human urine and feces. The ordinary meanings of feces and urine

are, respectively, "'[w]aste matter eliminated from the bowels;

excrement,'" and "'[t]he waste product secreted by the

kidneys.'" Hirschhorn, 338 Wis. 2d 761, ¶34 (quoting The

American Heritage Dictionary 1965). The ordinary meaning of

waste includes, among other things, "'[t]he undigested residue

of food eliminated from the body; excrement.'" Id. (quoting

American Heritage Dictionary 2016). In Hirschhorn, these

definitions of waste, urine, and feces supported our conclusion

that bat guano——which consists of bat urine and feces——was a

pollutant when it infiltrated a home. Id., ¶¶34-36. Likewise,

in the present case, these definitions support our conclusion

that decomposing septage is a pollutant when it seeps into a

water supply. ¶51 The policies' use of "contaminant" in defining

"pollutant" should have been clear notice to the Kuettels that

their policies would not cover claims involving decomposing

septage's seepage into water supplies.11 Stated otherwise, a

11 One could wonder what conversation transpired between the insurance agent and the Kuettels yielding insurance policies that do not cover harm caused in the course of their chosen business. However, the actions of the insurers and their agents are not before us.

24 No. 2012AP2521

reasonable insured would conclude that the policies would not

provide coverage on these facts. The key terms of the policies

are unambiguous. See Peace, 228 Wis. 2d at 136.

¶52 Typically, we would proceed to determine whether

spraying or injecting septage on farmland constitutes the

"discharge, dispersal, seepage, migration, release or escape of

'pollutants'." See Donaldson, 211 Wis. 2d at 228. However, the

parties do not appeal the circuit court's ruling that the

Preislers' alleged loss resulted from the "discharge, dispersal,

seepage, migration, release or escape of" septage within the

meaning of the terms in the pollution exclusion clause of the

insurance policy.12 Accordingly, we conclude that the insureds'

claims fall within the unambiguous terms of the pollution

exclusion clauses.13

C. Summary Judgment Granted to Hastings and Secura

¶53 A final issue is whether the Preislers and Kuettels

have waived consideration of the court of appeals' grant of

summary judgment to Hastings and Secura. Secura and Hastings

12 See Preisler, No. 2012AP2521, unpublished slip op., ¶39 (failing to challenge the circuit court's conclusion at the court of appeals). 13 Typically, our third step is to analyze exceptions to the exclusion to determine whether any reinstates coverage. Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶24, 268 Wis. 2d 16, 673 N.W.2d 65. The parties did not argue an exception to the pollution exclusion applies; therefore, we need not reach this step.

25 No. 2012AP2521

argued alternative grounds for summary judgment to the circuit

court and the court of appeals.14

¶54 The circuit court did not address Hastings' and

Secura's alternative grounds for summary judgment. The only

responses to Hastings' and Secura's arguments to the court of

appeals were the Preislers' assertions in two reply brief

footnotes that Hastings and Secura were required to file cross-

appeals to raise alternative grounds for summary judgment. The

court of appeals held Preislers' response insufficient and

separately dismissed claims against Hastings and Secura on their

alternative grounds. See Preisler v. Kuettel's Septic Serv.,

LLC, No. 2012AP2521, unpublished slip op., ¶¶40-42 (Ct. App.

Jan. 14, 2014).

¶55 By supreme court rule, "[i]f a petition [for review]

is granted, the parties cannot raise or argue issues not set

forth in the petition unless ordered otherwise by the supreme

court." Wis. Stat. § 809.62(6). In their petitions for review,

the Preislers, the Kuettels, and Phil's Pumping framed the issue as whether septage falls within the pollutant definition for

purposes of the pollution exclusion clause.

¶56 None of the petitioners petitioned the supreme court

to review summary judgments granted to Hastings and Secura on

alternative grounds. Hastings' dismissal was based on the

14 Brief for Secura at 24-30, Preisler, No. 2012AP2421, unpublished slip op. (Ct. App. Jan. 14, 2014); Brief for Hastings at 33-36, Preisler, No. 2012AP2421, unpublished slip op. (Ct. App. Jan. 14, 2014).

26 No. 2012AP2521

conclusion that the harm did not occur during the policy period.

Secura's dismissal was based on the conclusion that the harm did

not occur to the covered premises. In granting the petition, we

did not instruct the parties to brief or argue any additional

issues pursuant to Wis. Stat. § 809.62(6). Because the

alternative grounds for summary judgment in favor of Hastings

and Secura were not raised as an issue on petition to us, the

Preislers, the Kuettels, and Phil's Pumping have waived our

consideration of those grounds for summary judgment. See Doyle

v. Engelke, 219 Wis. 2d 277, 294, 580 N.W.2d 245 (1998)

(concluding that issues omitted from petitions for review may be

waived if we do not direct that they be addressed).

Accordingly, these dismissals by the court of appeals become the

law of the case for further proceedings on Preislers' claims.

State v. Moeck, 2005 WI 57, ¶18, 280 Wis. 2d 277, 695 N.W.2d

783.

¶57 While we retain the inherent power to consider issues

beyond those raised in the petitions, we decline to do so in this matter. See Univest Corp. v. Gen. Split Corp., 148 Wis. 2d

29, 37, 435 N.W.2d 234 (1989).

III. CONCLUSION

¶58 We conclude that a reasonable insured would understand

"pollutant" as defined in the policies when it has decomposed

decision of the court of appeals, which granted summary judgment upon its conclusion that the pollution exclusion clause 27 No. 2012AP2521

precluded coverage for harm resulting from the Preislers' water

¶59 We also conclude that the petitioners failed to

petition this court for review of summary judgments of dismissal

of their claims against Hastings and Secura. We decline to

consider issues not raised in petitions for review. Bodoh, 226

Wis. 2d at 737; Wis. Stat. § 809.62. Accordingly, those

dismissals are not before us.

By the Court.—The decision of the court of appeals is

affirmed.

28 No. 2012AP2521.awb

¶60 ANN WALSH BRADLEY, J. (concurring). Although I

agree with the majority's conclusion that septage is a pollutant

here, I part ways with the majority when it undertakes an

analysis of "occurrence." Not only is the analysis unclear, it

is unnecessary to the decision, and inconsistent with Wilson

Mutual Ins. Co. v. Falk, 2014 WI 136, __ Wis. 2d __, __ N.W.2d

__, a case decided on the same day, on the same issue.

¶61 It is unclear whether the majority is embarking on a

cause approach or damage approach in determining what

constitutes an occurrence. It quotes a leading authority on

insurance law, Couch on Insurance, for the premise that "[m]ost

courts have focused on the damage caused by the pollution and

have concluded that there is an occurrence when the insured did

not expect or intend the resultant damage." Majority op., ¶25

(quoting 9 Steven Plitt et al., Couch on Insurance § 127.4

(2008)). It then discusses Am. Family Mut. Ins. Co. v. Am.

Girl, Inc., 2004 WI 2, ¶38, 268 Wis. 2d 16, 673 N.W.2d 65, which

looked at both cause and damage in its discussion of occurrence. Id., ¶26.

¶62 Yet, after discussing these authorities, the majority

cites United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶¶12,

15, 304 Wis. 2d 750, 738 N.W.2d 578, for the premise that the

focus in an occurrence determination is on "the event or series

of events that allegedly caused the alleged bodily injury or

property damage." Id., ¶27. The majority then concludes that

the occurrence in this case was the "[s]eepage of decomposing septage into the water supply" and "the resulting harm is water

1 No. 2012AP2521.awb

with elevated nitrate levels." Id., ¶28. By including its

statement that the resulting harm was something other than the

occurrence, the majority suggests it is taking the cause

approach. Without a definite statement, however, the

juxtaposition of this conclusion with the conflicting

authorities renders the majority's analysis unclear.

¶63 Not only is the majority's analysis of what

constitutes an occurrence unclear, but it is also unnecessary.

What constitutes an occurrence was not addressed in the

arguments presented by the parties. This issue was neither

briefed nor argued, and none of the leading cases on pollution

exclusions discuss it. See Hirschhorn v. Auto-Owners Ins. Co.,

2012 WI 20, 338 Wis. 2d 761, 809 N.W.2d 529; Peace v.

Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 596 N.W.2d 429

(1999); Donaldson v. Urban Land Interests, 211 Wis. 2d 224, 564

N.W.2d 728 (1997); Langone v. Am. Family Mut. Ins. Co., 2007 WI

App 121, 300 Wis. 2d 742; 731 N.W.2d 334; United States Fire

Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 476 N.W.2d 280 (Ct. App. 1991).

¶64 Lastly, if the majority is going to address what

constitutes an occurrence, it should do so in a consistent

manner. As noted above, the majority appears to take a cause

approach to occurrence. This conflicts with the apparent

approach embraced in Wilson Mutual, __ Wis. 2d __, ¶32, which we

also release today. Wilson Mutual acknowledges that "Wisconsin

is in the jurisdictional majority in defining an occurrence as

2 No. 2012AP2521.awb

unexpected or unintended resultant damage." Which precedent

should future attorneys follow?

¶65 Overall, the majority's occurrence discussion is

problematic. By creating unclear, unnecessary, and inconsistent

precedent, the court does not live up to its obligation to

provide a clear and concise articulation of a legal standard.

Accordingly, I respectfully concur.

3 No. 2012AP2521.ssa

¶66 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I would

reverse the decision of the court of appeals.

¶67 This case requires us to interpret the standard

pollution exclusion clauses in a commercial general liability

policy and a contractors' general liability policy.

¶68 The majority opinion frames the question presented in

this case as "whether decomposing septage is a pollutant as it

seeped into the Preislers' water supply."1 The majority opinion

then holds that "a reasonable insured would conclude that the

policies would not provide coverage on these facts."2

¶69 The majority opinion's approach to the pollution

exclusion clauses in the instant case unnecessarily departs from

precedent, undercuts the limiting principles our prior cases

have applied to pollution exclusion clauses, and further

confuses this murky area of the law.

¶70 The majority opinion needlessly decides what

"occurrence" triggered coverage in the instant case and further

complicates the law in this area. The question of what constitutes an occurrence need not be decided to resolve the

question presented. The occurrence issue was neither raised nor

briefed by the parties and was not ruled on by the circuit court

or the court of appeals. The issue is complex.3 The court

1 Majority op., ¶31. 2 Id., ¶51. 3 Steven Plitt et al., 9 Couch on Insurance § 126:27 (1997) ("Whether there has been an accident or occurrence to trigger insurance coverage has been a much litigated issue.").

1 No. 2012AP2521.ssa

should not delve into it without the benefit of briefs or

argument.

¶71 Furthermore, the majority opinion's discussions of

what constitutes an occurrence and of whether a substance is a

pollutant are inconsistent with the court's approach to those

issues in Wilson Mutual v. Falk, 2014 WI 136, ¶38, ___

Wis. 2d ___, ___ N.W.2d ___. I write on substantially similar

issues in my dissent in Wilson Mutual. My dissents in Wilson

Mutual and in the instant case should be read together.

¶72 I conclude that a reasonable person in the position of

the insureds, two companies in the business of hauling, storing,

and disposing of septage, would not consider septage a pollutant

under the pollution exclusion clause of general liability

policies they purchased to cover liability for damage caused by

their septic business operations.

¶73 If the majority is unwilling to honor the reasonable

expectations of these insured septic companies, then I conclude

the case should be remanded to the circuit court to allow the parties to present evidence regarding the insureds' expectations

of coverage and the objective reasonableness of those

expectations.4

¶74 Accordingly, I dissent.

I

4 See majority op., ¶51 n.11 ("One could wonder what conversation transpired between the insurance agent and the Kuettels yielding insurance policies that do not cover harm caused in the course of their chosen business. However, the actions of the insurers and their agents are not before us.").

2 No. 2012AP2521.ssa

¶75 The present case involves two insured companies and

two insurance policies.5

¶76 Kuettel's Septic Service, LLC (Kuettel's) is a company

that hauls, stores, and disposes of septage. Kuettel's

sometimes disposes of septage by spreading it as fertilizer on

farmland. Kuettel's has periodically hired Phil's Pumping and

Fab, Inc. (Phil's Pumping) to dispose of septage. Phil's

Pumping sometimes disposes of the septage by spreading it as

fertilizer on farmland.

¶77 These septic companies purchased general liability

policies to insure their business operations, that is, they

purchased insurance policies to cover damage they might cause in

the ordinary course of their hauling, storing, and disposing of

septage.

¶78 Kuettel's purchased a contractors' general liability

policy from Regent Insurance Company. The Regent policy

contains the following provisions:

B. EXCLUSIONS

1. Applicable to Contractors Liability Coverage

This insurance does not apply to:

. . . .

f. Pollution

(1) "Bodily injury" or "property damage" arising out of the actual, alleged or

5 As the majority opinion points out, there were other insurers and other insurance contracts involved at earlier stages of the litigation.

threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" . . . .

F. LIABILITY AND MEDICAL EXPENSES DEFINITIONS

14. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

16. "Pollutants" 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. ¶79 Phil's Pumping purchased a commercial general

liability policy from Rural Mutual Insurance Company. The Rural

Mutual policy contains the following provisions:

2. Exclusions

(1) "Bodily injury" or "property damage," arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" . . . .

SECTION V - DEFINITIONS

13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

. . . . 4 No. 2012AP2521.ssa

15. "Pollutants" mean 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. ¶80 For several years, Kuettel's and Phil's Pumping spread

septage on Fred and Tina Preisler's farmland. In 2008, when the

Regent and Rural Mutual insurance policies described above were

in effect, the Preislers discovered that septage had seeped into

their well and contaminated their water supply, causing cattle

loss and other problems on their farm.

¶81 The Preislers sued Kuettel's and Phil's Pumping,

alleging that the companies negligently stored and spread

septage, resulting in nuisance and trespass. Kuettel's and

Phil's Pumping contend that septage is not a pollutant under the

pollution exclusion clauses at issue and thus that Regent and

Rural Mutual should defend and indemnify under the policies.

II

¶82 Applying the court's general principles of insurance

contract interpretation6 to the facts of the present case, I

conclude that a reasonable person in the position of these

insured septic companies would not consider septage a pollutant

under the pollution exclusion clause of a general liability

policy purchased to cover liability for damage caused by their

septic business operations.

6 See Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶¶15- 22, 257 Wis. 2d 80, 654 N.W.2d 225. I set forth these principles at length in Wilson Mutual Insurance Co. v. Falk, 2014 WI 136, ¶___, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting).

5 No. 2012AP2521.ssa

¶83 Excrement may be waste, an irritant, or a contaminant,

but septage is a valuable product. It is a fertilizer used to

enrich the soil. When it is used to enrich the soil, it is no

longer waste, an irritant, or a contaminant.

¶84 Because we construe insurance contract provisions as

would a reasonable insured, we have held that pollution

exclusion clauses do not apply when "injuries result[] from

everyday activities gone slightly, but not surprisingly, awry"

or when a reasonable policyholder "would not

characterize . . . [the] incident[] as pollution."7

¶85 To septic companies like Kuettel's and Phil's Pumping,

storing and spreading septage are indisputably everyday

activities. Septic companies store septage and often spread

septage on farmland. Seepage is the whole point of spreading

septage on farmland. If the seepage of septage into the

Preislers' well resulted from the storage of septage or the

spreading of septage on farmland, then it clearly resulted from

an everyday activity "gone slightly, but not surprisingly, awry."8

¶86 A court keeps the underlying purpose of the insurance

in mind when construing policy provisions.9 Kuettel's and Phil's 7 Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 233, 564 N.W.2d 728 (1997). 8 Id. 9 Frost, 257 Wis. 2d 80, ¶22 ("[I]n construing an insurance policy as it is understood by a reasonable person in the position of the insured, a court may consider the purpose or subject matter of the insurance, the situation of the parties, and the circumstances surrounding the making of the contract.").

6 No. 2012AP2521.ssa

Pumping purchased these general liability policies to insure

their septic business operations. The insurance companies knew

the nature of the business these companies are engaged in from

their company names and probably from information submitted in

their insurance policy applications. "Certainly an insured who

purchases [commercial general liability] insurance expects to be

covered for ordinary negligence in the course of its insured

operations."10

¶87 The fact that "[h]auling, storing, and applying

septage are activities regulated by both the DNR and the United

States Environmental Protection Agency" further supports my

conclusion that Kuettel's and Phil's Pumping were aware of the

risks of working with septage and thus purchased general

liability insurance policies to cover their liability for damage

caused by their septic business operations when an everyday

activity went slightly but not surprisingly awry.11

¶88 Thus, a reasonable person in the position of these

insured septic companies would expect coverage for damage caused by septage under a general liability policy it purchased

precisely in order to cover damage caused by its septic business

operations. An insured's reasonable expectations of coverage

must be honored. I would not bar coverage.

10 Keggi v. Northbrook Prop. & Cas. Ins. Co., 13 P.3d 785, ¶29 (Ariz. 2000). 11 Majority op., ¶43.

7 No. 2012AP2521.ssa

¶89 The majority opinion is problematic for several

reasons.

¶90 First, as I stated previously, the majority opinion

has an unnecessary discussion of occurrence, an issue that is

not relevant and was not briefed or argued by the parties.

¶91 Second, the majority's discussion of occurrence is

inconsistent with the discussion of occurrence in Wilson Mutual.

It remains unclear whether this court considers the cause of the

damage or the damage itself to be the occurrence.

¶92 The majority opinion suggests that it is taking the

cause approach.12 The Preislers' complaint alleges negligence in

the storing and spreading of septage. Couldn't the causal

event, and thus the accident for which the insureds seek

coverage, be the negligent storing or spreading of septage,

rather than seepage?

¶93 In her concurring opinion in the instant case, Justice

Bradley persuasively explains that the majority opinion's

discussion of occurrence is unnecessary, internally contradictory,13 and inconsistent with Wilson Mutual v. Falk,

2014 WI 136, ¶32, ___ Wis. 2d ___, ___ N.W.2d ___. I join

Justice Bradley's criticism of the majority opinion's discussion

of "occurrence."

12 Majority op., ¶28. 13 "It is unclear whether the majority is embarking on a cause approach or damage approach in determining what constitutes an occurrence." Justice Bradley's concurrence, ¶61.

8 No. 2012AP2521.ssa

¶94 Third, the essence of the majority's analysis is that

septage becomes a pollutant under the policy when it pollutes.

Under this reasoning, every substance that pollutes is a

pollutant. This reasoning simply begs the question.

¶95 By contending that a substance becomes a pollutant

under the policy at the moment the substance contaminates, the

majority opinion allows the pollution exclusion clause to extend

far beyond the limited scope we have permitted in our prior

cases, leading to absurd results.

¶96 The majority's approach ignores the fact that "there

is virtually no substance or chemical in existence that would

not irritate or damage some person or property."14 As this court

has said again and again, "[t]he reach of the pollution

exclusion clause must be circumscribed by reasonableness, lest

the contractual promise of coverage be reduced to a dead

letter."15

¶97 Fourth, Wilson Mutual and the instant opinion are

inconsistent in their test for whether a substance is a pollutant under a standard pollution exclusion clause, although

both look to whether a reasonable person in the position of the

insured would consider the substance a pollutant.

14 Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7th Cir. 1992)). 15 Donaldson, 211 Wis. 2d at 233.

9 No. 2012AP2521.ssa

¶98 The instant case simply asks "whether a reasonable

when it seeps into a water supply."16

¶99 Wilson Mutual sets forth the following two-part test

for whether a reasonable insured would consider a substance a

pollutant:

[A] reasonable insured would consider a substance to be a pollutant if (1) the substance is largely undesirable and not universally present in the context of the occurrence that the insured seeks coverage for; and (2) a reasonable insured would consider the substance causing the harm involved in the occurrence to be a pollutant.17 ¶100 Does the Wilson Mutual two-part test survive the

opinion in the present case?

¶101 Fifth, as I have noted, the parties in the instant

case are here on summary judgment. If the majority is unwilling

to adhere to our longstanding practice of honoring the

expectations of the reasonable insured, then I would remand the

case to the circuit court so the parties can produce evidence

regarding the insureds' expectations of coverage and the objective reasonableness of those expectations. Summary

judgment should not be granted before the parties have that

opportunity.

¶102 In sum, I conclude that a reasonable person in the

position of the insureds, two companies in the business of

16 Majority op., ¶40. 17 Wilson Mutual v. Falk, 2014 WI 136, ¶38, ___ Wis. 2d ___, ___ N.W.2d ___.

10 No. 2012AP2521.ssa

hauling, storing, and disposing of septage, would not consider

septage a pollutant under the pollution exclusion clause of

general liability policies they purchased to cover liability for

damage caused by their septic business operations.

¶103 For the reasons set forth, I dissent.

11 No. 2012AP2521.ssa