Hirschhorn v. Auto-Owners Insurance

2010 WI App 154, 792 N.W.2d 639, 330 Wis. 2d 232, 2010 Wisc. App. LEXIS 842
CourtCourt of Appeals of Wisconsin
DecidedOctober 19, 2010
DocketNo. 2009AP2768
StatusPublished
Cited by2 cases

This text of 2010 WI App 154 (Hirschhorn v. Auto-Owners Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hirschhorn v. Auto-Owners Insurance, 2010 WI App 154, 792 N.W.2d 639, 330 Wis. 2d 232, 2010 Wisc. App. LEXIS 842 (Wis. Ct. App. 2010).

Opinion

HOOVER, PJ.

¶ 1. Joel and Evelyn Hirschhorn appeal a judgment dismissing their insurance coverage and bad faith claims against Auto-Owners Insurance Company. The Hirschhorns argue the circuit court misinterpreted their homeowner's insurance policy's pollution exclusion clause when it concluded the policy did not cover damage caused by bat guano. Because we conclude the pollution exclusion language is ambiguous in this regard, we construe it in favor of coverage, and reverse and remand.

BACKGROUND

¶ 2. The Hirschhorns resided out of state but owned a vacation home in Oneida County. They listed the home for sale in May 2007, at which time they, along with a real estate broker, inspected the home and found [235]*235no signs of bats. In July, the broker noticed bat guano on the house, and inspecting further, discovered the presence of bats. The broker undertook to remove the bats and clean the premises, but when the Hirschhorns stayed at the home in August they noticed a "penetrating and offensive odor" in the home. The Hirschhorns subsequently obtained a remediation estimate from a contractor, but the contractor could not guarantee he could remove the odor.

¶ 3. The Hirschhorns filed a property loss notice with Auto-Owners on October 23, 2007. Auto-Owners denied the claim three days later, without conducting an investigation or inspecting the house. The denial letter stated the policy did not cover the accumulation of bat guano1 because it was "not sudden and accidental" and resulted from faulty, inadequate, or defective maintenance. In a revised position letter dated February 22, 2008, Auto-Owners also cited the policy's pollution exclusion. By that time, the Hirschhorns had demolished the house and begun construction of a new home.

¶ 4. Eventually, the Hirschhorns sued Auto-Owners, asserting claims for breach of contract and bad faith. Auto-Owners moved for summary judgment, arguing the loss was not covered because it was not "accidental direct physical loss to covered property" and also because three exclusions applied: (1) faulty or inadequate maintenance, (2) vermin, and (3) pollution. The circuit court denied the motion in an oral ruling, concluding there was coverage.2 The court observed, "[T]his isn't a pollution case . . . ." It continued:

[236]*236When we talk about pollution, it's usually a leakage or seeping from a polluted area into some other area causing damage. And we don't have that same situation here. We have the damage actually being caused by things coming into the structure.. . which isn't the same as the traditional pollution cases.264

However, after Auto-Owners moved for reconsideration and revised its arguments, the court held that excrement fell into the category of "waste" and, therefore, was a pollutant under the exclusion. Because there was no coverage under the policy, the court also concluded there could be no bad faith claim and dismissed the Hirschhorns' case. The Hirschhorns now appeal, arguing the circuit court misinterpreted the pollution exclusion.

DISCUSSION

¶ 5. The interpretation of an insurance policy presents a question of law that we decide independent of the circuit court. Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 230, 564 N.W.2d 728 (1997). Our goal is to ascertain and carry out the intent of the parties. Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 120-21, 596 N.W.2d 429 (1999). "Policy language is interpreted according to its plain and ordinary meaning as understood by a reasonable insured." Id. at 121. We resolve any ambiguities in a policy in favor of coverage, and narrowly construe exclusion clauses against the insurer. Donaldson, 211 Wis. 2d at 230. "[W]ords or phrases in an insurance policy are ambiguous if, when read in context, they are susceptible to more than one reasonable interpretation." Id. at 231.

[237]*237¶ 6. The Hirschhorns' policy excludes coverage for "loss resulting directly or indirectly from: ... discharge, release, escape, seepage, migration or dispersal of pollutants . . . ." The policy defines pollutants as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gasses and waste. Waste includes materials to be recycled, reconditioned or reclaimed."

¶ 7. The same pollution exclusion clause was analyzed in both Donaldson and Peace. In Donaldson, 211 Wis. 2d at 231, 235, the supreme court found the clause ambiguous as it applied to exhaled carbon dioxide. However, in Peace, 228 Wis. 2d at 121-22, 130, the court found the clause unambiguous as it applied to lead paint particles. Whether the exclusion unambiguously applies to excreted bat guano as a "pollutant" is an unresolved question. As the court observed in Peace, "Language inevitably creates some ambiguity. . . . Whether the nuances and imprecision of general language equal ambiguity as a matter of law is a determination influenced by perception and perspective. A court must do its best to ascertain the objective expectations of the parties from the language in the policy." Id. at 134. That court also recited the following definitions relating to the policy definition of pollutant:

A "contaminant" is defined as one that contaminates. American Heritage Dictionary of the English Language 406 (3d ed. 1992). "Contaminate" is defined as "1. To make impure or unclean by contact or mixture." Id. at 406.
An "irritant" is defined as the source of irritation, especially physical irritation. Id. at 954. "Irritation" is [238]*238defined, in the sense of pathology, as "A condition of inflammation, soreness, or irritability of a bodily organ or part." Id. at 954.

Peace, 228 Wis. 2d at 122.

¶ 8. Donaldson was a "sick building" case in which an insurance company sought to exclude liability for the consequences of an inadequate air exchange system. See Peace, 228 Wis. 2d at 136. After the building defect caused an excessive accumulation of carbon dioxide in the work area, the insurer attempted to categorize exhaled carbon dioxide as a pollutant. A divided court of appeals concluded that the policy definition of "pollutant" unambiguously included exhaled carbon dioxide because it is a gaseous substance which, at higher concentrations, can become an irritant. Donaldson, 211 Wis. 2d at 231. Disagreeing, the supreme court observed:

The terms "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. Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope, and lead to some absurd results.

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Related

Hirschhorn v. Auto-Owners Insurance
2012 WI 20 (Wisconsin Supreme Court, 2012)

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Bluebook (online)
2010 WI App 154, 792 N.W.2d 639, 330 Wis. 2d 232, 2010 Wisc. App. LEXIS 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirschhorn-v-auto-owners-insurance-wisctapp-2010.