Advanced Waste Services, Inc. v. United Milwaukee Scrap, LLC
Advanced Waste Services, Inc. v. United Milwaukee Scrap, LLC
Opinion of the Court
¶ 1. United Milwaukee Scrap, LLC, appeals the trial court's grant of summary judgment on its third-party complaint against its insurer, Illinois National Insurance Company (Illinois National). United Milwaukee Scrap was sued by Advanced Waste Services, Inc., after wastewater United Milwaukee Scrap provided was found to be contaminated with PCBs,
Background
¶ 2. United Milwaukee Scrap is a company that buys, processes, and sells scrap metals generated from industrial waste, obsolete materials, and construction demolitions. Advanced Waste Services is a waste-hauling service that recycles oily waste water and resells the used oil. Prior to the suit giving rise to this appeal, United Milwaukee Scrap contracted with Advanced Waste to remove wastewater from its facilities.
¶ 3. In February 2013, Advanced Waste sued United Milwaukee Scrap for negligence, intentional misrepresentation, negligent misrepresentation, strict responsibility, and breach of contract, among other causes of action. According to the complaint, the waste-water removed from United Milwaukee Scrap's facility was contaminated with PCBs, which contaminated ChemWorks during the recycling process. Advanced Waste further alleged that it remained unaware of the PCBs until after the wastewater "circulated throughout substantial portions of the ChemWorks Treatment Facility, thus contaminating [its] facility, equipment, and product." The complaint alleged that the contamination was ultimately caused by United Milwaukee Scrap's failure to disclose the existence of PCBs in its wastewater.
¶ 4. After Advanced Waste filed its claim, United Milwaukee Scrap notified Illinois National, its insurer, but Illinois National refused to defend the lawsuit. Illinois National denied coverage on the basis of the "total POLLUTION EXCLUSION WITH A HOSTILE FIRE EXCEPTION."
(1). . . "property damage" which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time ....
(2) Any loss, cost or expense arising out of any:
*728 (a) Request, demand, order or statutory or regulatory requirement that any insured or others ... clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of "pollutants."
¶ 5. Because Illinois National refused to defend the lawsuit, United Milwaukee Scrap filed a third-party complaint against Illinois National. The third-party complaint alleged that Illinois National had breached its duty to defend and indemnify under the policy.
¶ 6. Illinois National in turn filed a motion for summary judgment, arguing that it had no duty to defend the claim against United Milwaukee Scrap because the allegations fell within the policy's total pollution exclusion. In its summary judgment response, United Milwaukee Scrap admitted that PCBs are "pollutants" under the policy and that the pollutants were at some point "dispersed." It argued that the exclusion did not apply, however, because United Milwaukee Scrap — i.e., the insured — did not cause the pollutant's dispersal.
¶ 7. The trial court granted summary judgment in Illinois National's favor. United Milwaukee Scrap now appeals.
Analysis
Standards of Review
¶ 8. We review the trial court's grant of summary judgment de novo, applying the same methodology as the trial court. See Young v. West Bend Mut. Ins. Co., 2008 WI App 147, ¶ 6, 314 Wis. 2d 246, 758 N.W.2d 196. The rest of the summary judgment standard is well-known, and this court need not explain it in detail
¶ 9. This case also involves the construction of an insurance contract, which we review de novo. See Farmers Auto. Ins. Ass'n v. Union Pac. Ry. Co., 2009 WI 73, ¶ 30, 319 Wis. 2d 52, 768 N.W.2d 596. "The same rules of construction that govern general contracts are applied to the language in insurance polices." Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857. We construe insurance policies "to give effect to the intent of the parties as expressed in the language of the policy." Id.
¶ 10. "There is an established framework for determining whether coverage is provided under the terms of an insurance policy." Olson v. Farrar, 2012 WI 3, ¶ 40, 338 Wis. 2d 215, 809 N.W.2d 1. First, we examine whether the policy makes an initial grant of coverage. See id., ¶ 41. If the initial grant of coverage is triggered by the claim, we then examine the various exclusions to determine whether they preclude coverage. See id. "If so, the court then determines whether there is an exception to the exclusion which reinstates coverage." Id.
"Of primary importance is that the language of an insurance policy should be interpreted to mean what a*730 reasonable person in the position of the insured would have understood the words to mean." If a word or phrase is susceptible to more than one reasonable interpretation, it is ambiguous. "[B]ecause the insurer is in a position to write its insurance contracts with the exact language it chooses — so long as the language conforms to statutory and administrative law— ambiguity in that language is construed in favor of an insured seeking coverage."
Id., | 42 (citations and quotation marks omitted; brackets in Olson). Furthermore, while "we must read insurance policies from the standpoint of a reasonable insured," see Sobieski v. Farmers Ins. Exch., 181 Wis. 2d 324, 331, 510 N.W.2d 796 (Ct. App. 1993), "[w]e will not interpret a policy 'to provide coverage for risks that the insurer did not contemplate or underwrite and for which it has not received a premium,'" see State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶ 15, 275 Wis. 2d 35, 683 N.W.2d 75 (citation omitted).
Summary judgment must be affirmed because the "Total Pollution Exclusion With a Hostile Fire Exception" bars coverage.
¶ 11. With the proper standards in mind, and given that the parties do not dispute that the policy initially grants coverage, see Olson, 338 Wis. 2d 215, ¶ 41, we turn to the undisputed facts and the language of the policy's total pollution exclusion. As noted, the exclusion bars coverage for, among other things:
"property damage" which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of "pollutants" at any time.
¶ 13. We disagree. Under the plain language of the policy there is no requirement that the insured disperse the pollutant for the exclusion to apply. As we see from the policy language above, no actor is specified, leaving the possibility that a pollutant could be dispersed in any number of ways — including without the direct action of any party at all. Additionally, the phrase "at any time" leaves open a scenario under which a pollutant might be, either intentionally or unintentionally, dispersed without any action by the insured. We thus conclude that the policy does not require that the insured disperse the pollutant in order for the exclusion to apply. Therefore, the fact that Advanced Waste dispersed the pollutant does not prevent us from applying the total pollution exclusion here.
¶ 15. While the two issues before the supreme court in Hirschhorn — whether bat guano was a "pollutant" and whether the pollutant was "dispersed," see id., ¶¶ 26, 38 — are not before us, Hirschhorn is still instructive because the insureds did not directly disperse the pollutant. Rather, the bats that infiltrated their walls did. See id., ¶¶ 7-8, 46. As Illinois National points out, there is no indication that the Hirschhorns did anything to cause the bat guano odor to contaminate their home.
¶ 17. Furthermore, we are not persuaded by United Milwaukee Scrap's citation to Nestlé Foods Corporation v. Aetna Casualty and Surety Co., 842 F. Supp. 125 (D. N.J. 1993), a federal case interpreting a similar factual scenario to the one before us. In Nestlé
¶ 18. While United Milwaukee Scrap contends that Nestle Foods should control, we disagree because it interprets New Jersey law, which reads an additional requirement into the standard pollution exclusion that Wisconsin does not. In New Jersey, the pollution exclusion only applies if the " 'insured intentionally discharges a known pollutant.'" See id. at 131 (citation omitted). This requirement exists even when it is not clearly denoted in the policy. See Morton Int'l, Inc. v. General Accident Ins. Co. of Am., 629 A.2d 831, 875 (N.J. 1993). It exists because the New Jersey Supreme Court decided that public policy required the change due to deception about the scope of the exclusion by the insurance industry. See, e.g., id. at 875-76 ("Had the insurance industry candidly revealed the extent of the contraction in coverage intended by the pollution-exclusion clause, regulatory officials could
¶ 19. Moreover, United Milwaukee Scrap's reliance on Robert E. Lee & Associates, Inc., v. Peters, 206 Wis. 2d 509, 557 N.W.2d 457 (Ct. App. 1996), is unavailing, as the issue there is unrelated and unhelpful to determining the question before us. In Robert E. Lee & Associates, the insured, David J. Peters, owned a gas station and ordered 6000 gallons of gas from Grosskopf Oil, which subcontracted delivery to Carl Klemm, Inc. Id. at 513. Klemm's employee pumped 500 more gallons of gas than Peters ordered into Peters' tank, causing a gas spill. Id. at 513-14. Peters sought coverage from his insurer on the basis that the spill was caused by a "loss related to a vehicle," which it claimed should be construed as a "specified cause of loss" — a particular exception to his insurance policy's pollution exclusion. See id. at 516-17. But this court disagreed, concluding that construing the policy to
¶ 20. Finally, the total pollution exclusion at issue here is not ambiguous. United Milwaukee Scrap claims that the total pollution exclusion is ambiguous, but its argument is little more than a restatement of its earlier contention that because it did not disperse the pollutant, the exclusion should not apply. United Milwaukee Scrap's argument is insufficiently developed, and we will not consider it further. See Stephenson v. Universal Metrics, Inc., 2001 WI App 173, ¶ 23 n.3, 247 Wis. 2d 349, 633 N.W.2d 707.
f 21. In sum, the exclusion at issue here bars coverage for occurrences involving the dispersal of pollutants, and such an occurrence is exactly what Advanced Waste's complaint against United Milwaukee Scrap alleged. United Milwaukee Scrap does not deny this. Rather, it attempts to read into the exclusion a limiting factor that simply does not exist under the policy's clear and unambiguous language and that has no basis in Wisconsin law. Consequently, we con-
By the Court. — Judgment affirmed.
"PCB" stands for "polychlorinated biphenyl."
The "total pollution exclusion with a hostile fire exception" replaced an earlier pollution exclusion in the policy.
All references to the Wisconsin Statutes are to the 2013 — 14 version unless otherwise noted.
Indeed, the Hirschhorns regularly arranged for neighbors or hired help to clean and inspect the home, and no sign of bats was discovered until July 2007, just one month before the Hirschhorns noticed the offensive smell. See Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶¶ 6 — 8, 338 Wis. 2d 761, 809 N.W.2d 529.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.