Fortier v. Flambeau Plastics Co., a Div. of Flambeau Corp.

• Decision Date: 18 October 1990
• Docket Number: Nos. 89-0196,89-0956,s. 89-0196
• Citation: 476 N.W.2d 593,164 Wis.2d 639
• Parties: James R. FORTIER, and Holly W. Fortier, Individually and for their children, Leah Aimee Fortier, and Alais Noel Fortier, Charles F. Quandt, and Beverly A. Quandt, Individually and for their children, Vince A. Quandt, Brian V. Quandt, and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs, v. FLAMBEAU PLASTICS COMPANY A DIVISION OF FLAMBEAU CORPORATION, Defendant-Appellant, American Excess Insurance Company, and Highlands Insurance Group a/k/a Highlands Insurance Company, Defendants-Respondents, The City of Baraboo, a Wisconsin municipal corporation, Defendant-Appellant, Sauk County, a body corporate, Sara Lee Corporation, a Maryland corporation, Teel Plastics Company, a Wisconsin corporation, and the following insurance corporations: The Aetna Casualty and Surety Company, Columbia Casualty Company, Continental Casualty, The Continental Insurance Company, Defendants, Employer's Insurance of Wausau, Defendant-Respondent, Fireman's Fund/National Surety Corporation, Fireman's Fund of Wisconsin, Defendants, General Casualty Insurance Company of Wisconsin, Hartford Insurance Group, Hawkeye Security Insurance Company, Defendants-Respondents, The Home Insurance Company, Integrity Insurance Company, Lloyd's of London, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Pacific Employers, Puritan Insurance Company, Travelers Companies a/k/a Travelers Indemnity Company, and Wausau Insurance Company, Defendants. James R. FORTIER, and Holly W. Fortier, Individually and for their children, Leah Aimee and Alais Noel Fortier, Charles F. Quandt and Beverly A. Quandt, Individually and for their children, Vince A., Brian V. and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs-Appellants-Cross Respondents, d ]]] v. The CITY OF BARABOO, a Wisconsin municipal corporation, Sauk County, a body corporation, Defendants, Flambeau Plastics Company, a division of Flambeau Corporation, Sara Lee Corporation, a Maryland corporation, Defendants-Respondents-Cross Appellants,
• Court: Wisconsin Court of Appeals

Page 593

476 N.W.2d 593

164 Wis.2d 639

James R. FORTIER, and Holly W. Fortier, Individually and for

their children, Leah Aimee Fortier, and Alais Noel Fortier, Charles F. Quandt, and Beverly A. Quandt, Individually and for their children, Vince A. Quandt, Brian V. Quandt, and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs, v. FLAMBEAU PLASTICS COMPANY A DIVISION OF FLAMBEAU

CORPORATION, Defendant-Appellant,

American Excess Insurance Company, and Highlands Insurance

Group a/k/a Highlands Insurance Company,

Defendants-Respondents,

The City of Baraboo, a Wisconsin municipal corporation,

Defendant-Appellant,

Sauk County, a body corporate, Sara Lee Corporation, a

Maryland corporation, Teel Plastics Company, a Wisconsin

corporation, and the following insurance corporations: The

Aetna Casualty and Surety Company, Columbia Casualty

Company, Continental Casualty, The Continental Insurance

Company, Defendants,

Employer's Insurance of Wausau, Defendant-Respondent,

Fireman's Fund/National Surety Corporation, Fireman's Fund

of Wisconsin, Defendants,

General Casualty Insurance Company of Wisconsin, Hartford

Insurance Group, Hawkeye Security Insurance

Company, Defendants-Respondents,

The Home Insurance Company, Integrity Insurance Company,

Lloyd's of London, National Union Fire Insurance Company of

Pittsburgh, Pennsylvania, Pacific Employers, Puritan

Insurance Company, Travelers Companies a/k/a Travelers

Indemnity Company, and Wausau Insurance Company, Defendants.

James R. FORTIER, and Holly W. Fortier, Individually and for

their children, Leah Aimee and Alais Noel Fortier, Charles

F. Quandt and Beverly A. Quandt, Individually and for their

children, Vince A., Brian V. and Frederick C. Quandt, and Randall R. Ramsey, Plaintiffs-Appellants-Cross Respondents, ^d]]] v. The CITY OF BARABOO, a Wisconsin municipal corporation, Sauk

County, a body corporation, Defendants,

Flambeau Plastics Company, a division of Flambeau

Corporation, Sara Lee Corporation, a Maryland

corporation,

Defendants-Respondents-Cross Appellants,

Teel Plastics Company, a Wisconsin corporation, Defendant,

Industrial Coils, a Wisconsin corporation,

Defendant-Respondent-Cross Appellant,

The Aetna Casualty and Surety Company, Defendant-Cross Respondent,

American Excess Insurance Company, Continental Casualty,

Employer's Insurance of Wausau, Defendants,

Fireman's Fund/National Surety Corporation, Fireman's Fund

of Wisconsin, Defendant-Cross Respondent,

General Casualty Insurance Company of Wisconsin, Hartford

Insurance Group, Hawkeye Security Insurance Company,

Highlands Insurance Group, a/k/a Highlands Insurance

Company, Integrity Insurance Company, Travelers Companies,

a/k/a Travelers Indemnity Company, Wausau Insurance Company,

Defendants.

Nos. 89-0196, 89-0956.

Court of Appeals of Wisconsin.

Oral Argument Oct. 18, 1990.

Opinion Released Sept. 19, 1991.

Opinion Filed Sept. 19, 1991.

Raymond M. Roder, argued and Debra A. Anken-Dyer of Whyte & Hirschboeck, S.C., Madison, on brief, for plaintiffs-appellants, James R. Fortier, et al.

James C. Bohl of Quale, Hartman, Bohl, Stevens & Reynolds, S.C., Baraboo, for defendant-appellant, City of Baraboo.

Clyde C. Cross, argued and Jerome P. Mercer of Cross, Jenks, Mercer and Maffei, Baraboo, on brief, for defendant-appellant and defendant-respondent-cross appellant, Flambeau Corp.

H. Robert Kilkelly, Jeffrey W. Younger, and Paul W. Schwarzenbart of Lee, Kilkelly, Paulson & Kabaker, S.C., Madison, for defendants-respondents, American Excess Ins. Co. and Highlands Ins. Group a/k/a Highlands Ins. Co.

Barrett J. Corneille, of Bell, Metzner, Gierhart & Moore, S.C., Madison, for defendant-respondent, General Cas. Ins. Co. of Wisconsin.

Paul L. Gingras and Susan Hurt of Zelle & Larson, and Richard B. Allyn of Robins, Kaplan, Miller & Ciresi, Minneapolis, Minn. and of James Gerlach of Larowe, Gerlach, Chiquoine & Kahler, Reedsburg, for defendant-respondent, Employers Ins. of Wausau.

James C. Alexander of Sauthoff & Alexander, Madison, for defendant-respondent, Hartford Ins. Group.

C. Michael Hausman and D. Sean O'Lochlayne of Slattery & Hausman, Ltd., Milwaukee, for defendant-respondent, Hawkeye-Security.

Daniel P. Golden of Anderson, Shannon, O'Brief, Rice & Bertz, Plover, and William M. Savino, Daniel A. Bartoldus and Lawrence A. Levy of Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., for defendants-cross respondents, Fireman's Fund/National Sur. Corp. and Fireman's Fund of Wisconsin.

A. Reid Shaw and John C. Goodnow, argued of Oppenheimer, Wolff & Donnelly of Minneapolis, Minn., on brief, for defendants-cross respondents, Aetna Cas. and Sur. Co.

Frank J. Daily and Jeffrey Morris, argued of Quarles & Brady, Milwaukee, on brief, for defendants-respondents-cross appellants, Sara Lee Corp.

Rocke A. Calvelli and Gerald R. Harmon, argued of Quale, Felbruegge, Calvelli, Thom & Croke, Milwaukee, on brief, for defendants-respondents-cross appellants, Industrial Coils.

Robert C. Burrell of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, and Thomas W. Brunner, Marilyn E. Kerst, John W. Cavilia of Wiley Rein & Fielding, Washington, D.C., amicus curiae for Wisconsin Ins. Alliance and Insurance Environmental Litigation Ass'n.

Gregory B. Conway of Liebman, Conway, Olejniczak & Jerry, S.C., Green Bay, and Thomas J. Dawson, State of Wis. Public Intervenor, Madison, and Eugene R. Anderson, Thomas H. Sear, Thomas G. Rozinski of Anderson Kill Olick & Oshinsky, P.C., New York City, amicus curiae for Wisconsin Public Intervenor, Chemical Manufacturers Ass'n, Wisconsin Paper Council, Wisconsin Academy of Trial Lawyers, Wisconsin's Environmental Decade.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

GARTZKE, Presiding Judge.

The Fortiers, the Quandts and Ramsey appeal from a judgment dismissing their complaint against Flambeau Plastics Co., Sara Lee Corp., and Industrial Coils. The plaintiffs claim that the three companies deposited toxic chemicals in the City of Baraboo's landfill and that the chemicals seeped or leached from it to the plaintiffs' nearby properties, contaminating their residential water wells and causing them personal injury and economic loss. The plaintiffs claim the companies are liable to them for having conducted an abnormally dangerous activity, as well as in negligence, nuisance and trespass. The city and the companies appeal from judgments dismissing their cross-claims against their insurers for coverage under liability policies. Industrial Coils cross-appeals against the plaintiffs on several procedural matters. ¹

We address three groups of issues. The first is whether the trial court properly granted the companies' motion ² for summary judgment on grounds that they are not strictly liable or liable in negligence, nuisance or trespass. We conclude that the trial court properly dismissed the abnormally dangerous activity claim, but not the negligence claim (insofar as it is founded on a common-law duty), and the nuisance and trespass claims (to the extent they are founded on the defendants' negligence).

The second issue concerns the companies' cross-claims for insurance coverage. The question is the applicability of a pollution exclusion clause under Wisconsin and Illinois law. We conclude that the exclusion clause does not apply, and we reverse that part of the judgment dismissing the cross-claims against the insurers.

The third issue results from the cross-appeal of Industrial Coils. That cross-appellant asserts that the trial court lacked jurisdiction over it because the plaintiffs did not pay a filing fee when adding it as a defendant in an amended complaint, and that the trial court improperly modified the pretrial order. We reject both assertions.

I. LIABILITY FOR POLLUTION

1. Standard Summary Judgment Methodology

We employ a de novo review of the trial court's order granting summary judgment. Bong v. Cerny, 158 Wis.2d 474, 478, 463 N.W.2d 359, 361 (Ct.App.1990). Summary judgment is governed by sec. 802.08, Stats. Whether summary judgment should have been granted is a question of law. Waters v. United States Fidelity & Guar. Co., 124 Wis.2d 275, 278, 369 N.W.2d 755, 757 (Ct.App.1985). It is a method of determining whether a genuine issue exists as to any material fact which must be tried. If no such issue exists and the moving party is entitled to judgment as a matter of law, then the trial court must grant that judgment and we must affirm. If a genuine issue of any material fact exists, then summary judgment cannot be granted, and we must reverse. Neither the trial court nor this court has any discretion in the matter. Wright v. Hasley, 86 Wis.2d 572, 578-79, 273 N.W.2d 319, 322-23 (1979).

2. Undisputed Facts

The companies do not contest the sufficiency of the complaint. Rather, they contend that the undisputed facts entitle them to summary judgment dismissing the plaintiffs' claims.

We have relied primarily but not exclusively on the parties' representations in their briefs as to what facts are undisputed. It appears from the briefs that the following facts are undisputed and are supported by affidavits and other materials the companies submitted with their motion for summary judgment.

The city opened the landfill in 1952 and closed it to the public in October 1973. During the 1950s, most of the 1960s and into the early 1970s, the city used the landfill for all of the garbage, trash and waste it collected from area homes, businesses, and industries, including those of the respondent companies. The landfill served the city and three townships, two villages and a state park. By 1970 it served a permanent population of 12,400 and a seasonal population of 17,500.

In 1969 the Wisconsin Department of Natural Resources (DNR) began to license solid waste disposal sites. The DNR issued a "solid waste disposal operation license" to the city to operate the landfill for the period July 1, 1969, to June 30, 1970. The license authorized disposal of garbage, trash, "industri...