Wilson Mutual Insurance Company v. Robert Falk

2014 WI 136, 360 Wis. 2d 67
CourtWisconsin Supreme Court
DecidedDecember 30, 2014
Docket2013AP000776
StatusPublished
Cited by33 cases

This text of 2014 WI 136 (Wilson Mutual Insurance Company v. Robert Falk) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson Mutual Insurance Company v. Robert Falk, 2014 WI 136, 360 Wis. 2d 67 (Wis. 2014).

Opinions

MICHAEL J. GABLEMAN, J.

¶ 1. We review a published decision of the court of appeals1 reversing the Washington County circuit court's order granting declaratory judgment in favor of Wilson Mutual Insurance Company ("Wilson Mutual").2 The circuit court concluded that Wilson Mutual had no duty to defend or indemnify Robert and Jane Falk ("the Falks") against allegations that in 2011 they negligently spread manure3 on their property and thereby polluted their neighbors' wells because the Wilson Mutual policy [76]*76contained an exclusion for pollution.4 The court of appeals reversed, concluding that a reasonable farmer would consider cow manure to be "liquid gold" and not a pollutant when applied to a farm field. Wilson Mut. Ins. Co. v. Falk, 2014 WI App 10, ¶¶ 1, 3, 352 Wis. 2d 461, 844 N.W.2d 380.

¶ 2. Three issues are presented for our consideration: 1) whether a pollution exclusion in Wilson Mutual's General Farm Coverage Liability policy excludes coverage for harm caused by the seepage of cow manure into wells; 2) whether the Farm Chemicals Limited Liability Endorsement provides coverage for physical injury to property caused by the seepage of cow manure into wells; and 3) whether the incidental coverages section of Wilson Mutual's General Farm Coverage Liability policy provides indemnity coverage for and a duty to defend against harm caused by the seepage of cow manure into wells.

| 3. We hold that the pollution exclusion clause in Wilson Mutual's General Farm Coverage Liability policy issued to the Falks unambiguously excludes [77]*77coverage for well contamination caused by the seepage of cow manure. First, we conclude that cow manure falls unambiguously within the policy's definition of "pollutants" when it enters a well. Second, we conclude the Farm Chemicals Limited Liability Endorsement likewise excludes coverage for "physical injury to property" resulting from pollutants. Finally, we conclude that the "Damage to Property of Others" clause under the incidental coverages section provides incidental coverage up to $500 for each unique well that has allegedly been contaminated by the Falks' manure, and Wilson Mutual has a duty to defend. Accordingly, the decision of the court of appeals is reversed, and we remand to the circuit court for further proceedings consistent with our holding.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 4. The Falks are owners and operators of a dairy farm in West Bend, Wisconsin, located in Washington County. Paul Wilkens, Karen Wilkens, Lee Laatsch, Ruth Hetzel, Michael Jante, Jessica Jante, Addicus Jante, James Wiedmeyer, Kim Wiedmeyer, Paul Lorge, and Tammy Lorge (collectively the "injured parties") are all neighbors of the Falks.

¶ 5. In early 2011, the Falks spread liquid cow manure onto their farm fields for the purpose of fertilization. In an attempt to safely apply the manure, the Falks obtained a nutrient management plan prepared by a certified crop agronomist and approved by the Washington County Land and Water Conservation Department.

¶ 6. In a letter dated May 23, 2011, the Wisconsin Department of Natural Resources ("DNR") informed the Falks it had received several well contami[78]*78nation complaints from the Falks' neighbors. The DNR investigated the matter and concluded that manure from the Falks' farm leeched into and contaminated wells owned by the injured parties. The contamination made the injured parties' private wells unusable and the water undrinkable. The injured parties alleged that manure, nitrates, and bacteria, including E. coli,5 seeped into their wells. Additionally, Addicus Jante, a minor, claimed that he contracted bacterium avium6 from drinking the contaminated water and, as a result, was hospitalized and underwent surgery.

¶ 7. The DNR used grant money to provide temporary clean water to Laatsch and Hetzel and to replace their wells. The DNR subsequently requested reimbursement from the Falks for these expenses. The Lorges, Jantes, and Wiedmeyers did not qualify for a DNR grant, and had to pay out of pocket. The Wilkens paid out of pocket to replace their well and do not seek repayment from the Falks.

¶ 8. Wilson Mutual sold two farmowner policies to the Falks, the first insuring the period from April 10, 2010, to April 10, 2011, and the second insuring the period from April 10, 2011, to April 10, 2012. The policies were identical in all material respects and we therefore will refer to the policies collectively as "the [79]*79Wilson Mutual policy." The Wilson Mutual policy was titled: "Personal Liability Coverage (Farm)" and was designed for owners and operators of farms.

¶ 9. The Wilson Mutual policy excluded general liability coverage for both "bodily injury" and/or "property damage" "which results from the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of 'pollutants' into or upon land, water, or air." The policy stated:

"We" [Wilson Mutual] do not pay for a loss if one or more of the following excluded events apply to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded event.
1. "bodily injury" or "property damage" which results from the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of "pollutants" into or upon land, water, or air . . .

¶ 10. "Pollutant" is defined earlier in the policy as: "any solid, liquid, gaseous, thermal, or radioactive irritant or contaminant, including acids, alkalis, chemicals, fumes, smoke, soot, vapor, and waste. 'Waste' includes materials to be recycled, reclaimed, or reconditioned, as well as disposed of."

I 11. In addition to general liability coverage, the Wilson Mutual policy also included an endorsement for "Farm Chemicals Limited Liability" and an "Incidental Coverages" section.

¶ 12. The Farm Chemicals Endorsement reads, in relevant part:

[80]*80Farm Chemicals Limited Liability. "We" pay those sums which an "insured" becomes legally obligated to pay as damages for physical injury to property if:
1. The injury is caused by the discharge, dispersal, release, or escape of chemicals, liquids, or gases into the air from the "insured premises". The injury must be caused by chemicals, liquids, or gases that the "insured" has used in the normal and usual "farming" operation; and
2. The chemicals, liquids, or gases have not been discharged, dispersed, or released from an aircraft.
Physical injury does not include indirect or consequential damages such as loss of use of soil, animals, crops, or other property or loss of market.
This coverage does not apply to physical injury to property arising out of "farming" operations that are in violation of an ordinance or law.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 WI 136, 360 Wis. 2d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-mutual-insurance-company-v-robert-falk-wis-2014.