Guenther v. City of Onalaska, No. 98-0724

CourtCourt of Appeals of Wisconsin
Writing for the CourtROGGENSACK
Citation223 Wis.2d 206,588 N.W.2d 375
PartiesRon GUENTHER and Kathy Guenther, Plaintiffs-Co-Appellants, v. CITY OF ONALASKA, Defendant-Appellant, Cities & Villages Mutual Insurance Company, Defendant-Respondent. dCourt of Appeals of Wisconsin
Docket NumberNo. 98-0724
Decision Date19 November 1998

Page 375

588 N.W.2d 375
223 Wis.2d 206
Ron GUENTHER and Kathy Guenther, Plaintiffs-Co-Appellants,
v.
CITY OF ONALASKA, Defendant-Appellant,
Cities & Villages Mutual Insurance Company,
Defendant-Respondent. d
No. 98-0724.
Court of Appeals of Wisconsin
Submitted on Briefs Sept. 4, 1998.
Opinion Released Nov. 19, 1998.
Opinion Filed Nov. 19, 1998.

Page 376

[223 Wis.2d 208] On behalf of the plaintiffs-co-appellants, the cause was submitted on the briefs of William G. Skemp and Sonja Davig Huesmann of William Skemp Law Firm, S.C. of La Crosse.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Janet Jenkins of Johns Flaherty, S.C. of La Crosse.

On behalf of the defendant-respondent, the cause was submitted on the brief of Daniel E. Dunn of Smyth & Dunn of La Crosse.

Before VERGERONT, ROGGENSACK and DEININGER, JJ.

ROGGENSACK, J.

Ron and Kathy Guenther and the City of Onalaska (Onalaska) appeal from a summary judgment dismissing Onalaska's insurer, Cities and Villages Mutual Insurance Company (Mutual Insurance), from the Guenthers' lawsuit for damages incurred when an Onalaska sewer backed-up into the Guenthers' basement. The circuit court concluded that the backup was excluded from coverage under the policy's pollution exclusion clause and it dismissed the action against Mutual Insurance. We agree that the pollution exclusion could reasonably be interpreted as was done by the circuit court, however, we conclude that Onalaska could also have reasonably understood that the exclusion for "contamination by pollutants" did not apply to an occurrence as routine as a domestic sewer backup, which caused at least some damages, which were unrelated to any toxic nature 1 of [223 Wis.2d 209] the sewage. Therefore, we conclude the policy is ambiguous and we construe it in favor of coverage. Accordingly, we reverse and remand for further proceedings in the circuit court.

BACKGROUND

In May, 1995, an Onalaska sewer backed-up into the basement of a flower shop owned by the Guenthers. The basement was flooded with twenty-six inches of water, human waste, and other debris. As a result of the flooding, the Guenthers lost inventory, office supplies and business documents which were stored in the basement. In addition, they had to replace the water heater, repair the furnace, repaint the basement floor, and replace the carpeting. Because the water which flooded their basement contained human waste, sludge and mud, it created a very unpleasant odor in the basement. Ron Guenther, in statements made under oath, said that the building "[s]tunk to high heaven" and smelled "[l]ike an outhouse." According to Ron, the basement still does not smell right even though it was professionally cleaned and deodorized.

The Guenthers filed a lawsuit against Onalaska and its insurer, Mutual Insurance, for damages to their property. Mutual Insurance filed a motion for summary judgment seeking dismissal of the action against it, claiming that the sewer backup constituted contamination by pollution, which was not covered under its policy. The circuit court agreed and dismissed Mutual Insurance from the litigation. This appeal followed.

[223 Wis.2d 210] DISCUSSION

Standard of Review.

This court reviews summary judgment decisions de novo, applying the same standards employed by the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis.2d 226, 232, 568 N.W.2d 31, 34 (Ct.App.1997). We first examine the complaint to determine whether it states a claim, and then review the answer, to determine whether it presents a material issue of fact or law. Id. If we determine that the complaint and answer are sufficient, we proceed to examine the moving party's affidavits, to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits, to determine whether there are

Page 377

any material facts in dispute which entitle the opposing party to a trial. Id. at 233, 568 N.W.2d at 34.

Both parties look to the language of the insurance contract between Onalaska and Mutual Insurance to support their respective positions. Interpretation of a written insurance policy is a question of law which we review de novo, without deference to the decision of the circuit court. Donaldson v. Urban Land Interests, Inc., 211 Wis.2d 224, 230, 564 N.W.2d 728, 731 (1997).

Pollution Exclusion.

The interpretation of insurance policies is governed by the same rules of construction that apply to other contracts. Id. Ambiguities in a policy's terms are [223 Wis.2d 211] resolved in favor of coverage, while coverage exclusion clauses are narrowly construed against the insurer. Id.

The principle underlying the doctrine is straightforward. As the drafter of the insurance policy, an insurer has the opportunity to employ expressive exactitude in order to avoid a misunderstanding of the policy's terms. Because the insurer is the party best situated to eliminate ambiguity in the policy, the policy's terms should be interpreted as they would be understood from the perspective of a reasonable person in the position of the insured.

Id. (further citations omitted).

The insurance policy in question contains a broad pollution exclusion 2 which excludes coverage for any claim or any obligation to defend a suit or claim against the insured "arising out of the contamination or alleged contamination of any environment by POLLUTANTS." The policy defines the terms of the exclusion as follows:

POLLUTANTS--means any solid, liquid, gaseous, or thermal irritant or contaminant, including [223 Wis.2d 212] smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. The term POLLUTANTS, as used herein, is not defined to mean potable water, agricultural water, water furnished to commercial users or water used for fire suppression.

.

Contamination includes any unclean, unsafe, damaging, injurious or unhealthful condition, either actual or potential, which arises out of the presence in the environment of any POLLUTANT, whether permanent or transient.

Environment includes any person, any man-made object or feature, animals, crops and vegetables, land, bodies of water, underground water, or water table or aquifer, air and any other natural feature of the earth and its atmosphere, whether or not altered,...

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22 practice notes
  • Am. Fam. Mut. Ins. Co. v. American Girl, Inc., No. 01-1871.
    • United States
    • United States State Supreme Court of Wisconsin
    • 9 Enero 2004
    ...summary judgment de novo, using the same standards applied by the circuit court and the court of appeals. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). Additionally, we review an insurance policy as a question of law, Vogel v. Russo, 2000 WI 85, ¶ 14, 2......
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    • United States
    • Wisconsin Supreme Court
    • 9 Enero 2004
    ...summary judgment de novo, using the same standards applied by the circuit court and the court of appeals. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). Additionally, we review an insurance policy as a question of law, Vogel v. Russo, 2000 WI 85, ¶14, 23......
  • Preisler v. Gen. Cas. Ins. Co., No. 2012AP2521.
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 Diciembre 2014
    ...slip op., ¶ 39 (failing to challenge the circuit court's conclusion at the court of appeals).10 In Guenther v. City of Onalaska, 223 Wis.2d 206, 588 N.W.2d 375 (Ct.App.1998), the court of appeals held the pollution exclusion clause did not apply to the occurrence of a domestic sewer backup.......
  • Forgues v. Heart of Texas Dodge, Inc., Appeal No. 02-0658.
    • United States
    • Court of Appeals of Wisconsin
    • 31 Julio 2003
    ...this summary judgment review are questions of law that we review without deference to the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). Statutory construction and the application of a statute to undisputed facts are questions of law.......
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22 cases
  • Am. Fam. Mut. Ins. Co. v. American Girl, Inc., No. 01-1871.
    • United States
    • United States State Supreme Court of Wisconsin
    • 9 Enero 2004
    ...summary judgment de novo, using the same standards applied by the circuit court and the court of appeals. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). Additionally, we review an insurance policy as a question of law, Vogel v. Russo, 2000 WI 85, ¶ 14, 2......
  • American Family Mutual Insurance Company v. American Girl, Inc., 2004 WI 2 (Wis. 1/9/2004), No. 01-1871.
    • United States
    • Wisconsin Supreme Court
    • 9 Enero 2004
    ...summary judgment de novo, using the same standards applied by the circuit court and the court of appeals. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). Additionally, we review an insurance policy as a question of law, Vogel v. Russo, 2000 WI 85, ¶14, 23......
  • Preisler v. Gen. Cas. Ins. Co., No. 2012AP2521.
    • United States
    • United States State Supreme Court of Wisconsin
    • 30 Diciembre 2014
    ...slip op., ¶ 39 (failing to challenge the circuit court's conclusion at the court of appeals).10 In Guenther v. City of Onalaska, 223 Wis.2d 206, 588 N.W.2d 375 (Ct.App.1998), the court of appeals held the pollution exclusion clause did not apply to the occurrence of a domestic sewer backup.......
  • Forgues v. Heart of Texas Dodge, Inc., Appeal No. 02-0658.
    • United States
    • Court of Appeals of Wisconsin
    • 31 Julio 2003
    ...this summary judgment review are questions of law that we review without deference to the circuit court. Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375, 376 (Ct. App. 1998). Statutory construction and the application of a statute to undisputed facts are questions of law.......
  • Request a trial to view additional results

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