Tuesday, March 6, 2012

A Bad Odor

Another day, another dissent from the Wisconsin Supreme Court.

Today's case involves whether the stink from accumulated bat guano is covered by an insurance policy on a vacation home at Lake Tomahawk, Wisconsin.

 Justice Ziegler holds "no."

We conclude that the pollution exclusion clause in Auto-Owners' insurance policy excludes coverage for the loss of the Hirschhorns' home that allegedly resulted from the accumulation of bat guano. First, we conclude that bat guano falls unambiguously within the policy's definition of "pollutants." Second, we conclude that the Hirschhorns' alleged loss resulted from the "discharge, release, escape, seepage, migration or dispersal" of bat guano under the plain terms of the policy's pollution exclusion clause. Accordingly, the circuit court properly dismissed the Hirschhorns' complaint against Auto-Owners.

Justice Abrahamson, joined by Justice Bradley, dissents:

...instead of utilizing context to discern meaning, the majority uses a backward method. It first selects one dictionary definition from among many to define "'waste' [as] unambiguously includ[ing] feces and urine." Majority op., ΒΆ35. The majority's selected dictionary definition ends the discussion of the meaning of "waste." The majority's approach fails in several respects. It fails to read words in the insurance policy in context to discern their meaning; it fails to read the insurance policy from the perspective of a reasonable insured; and it fails to construe ambiguities against the drafter and in favor of coverage.

(Mike Frisch)


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