Midwest Family Mut. Ins. Co. v. Wolters

Decision Date31 May 2013
Docket NumberNo. A11–0181.,A11–0181.
Citation831 N.W.2d 628
PartiesMIDWEST FAMILY MUTUAL INSURANCE COMPANY, Respondent, v. Michael D. WOLTERS, et al., Respondents, Charles E. Bartz, et al., Appellants, Jerry D. Larson, Defendant.
CourtMinnesota Supreme Court


Syllabus by the Court

1. Under the plain-meaning approach of Board of Regents of the University of Minnesota v. Royal Insurance Co. of America, 517 N.W.2d 888 (Minn.1994), carbon monoxide released from a negligently installed boiler is a “pollutant” that is subject to the absolute pollution exclusion of the general liability insurance policy at issue.

2. Because the pollution exclusion clause was plainly designated, the reasonable expectations doctrine does not apply to this case.

Steven E. Tomsche, Matthew R. Smith, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent Midwest Family Mutual Insurance Company.

Robert A. Woodke, Bruce L. Meyer, Brouse, Woodke & Meyer, PLLP, Bemidji, MN, for respondents Michael D. Wolters, et al.

Anthony J. Nemo, Meshbesher & Spence, Ltd., Minneapolis, MN, for appellants.

Laura Hanson, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, MN; and Laura A. Foggan, Joshua A. Minix, Wiley Rein LLP, Washington, DC, for amicus curiae, Complex Insurance Claims Litigation Association.



This case presents the issue of whether the absolute pollution exclusion found in the general liability insurance policy at issue here is limited to traditional environmental pollutants or whether the exclusion encompasses carbon monoxide released in a home by a negligently installed boiler. The district court denied Midwest Family Mutual Insurance Company's motion for summary judgment, holding that it would be “inappropriate to rule as a matter of law” that the “absolute pollution exclusion bars coverage under the facts in this case,” since respondent Michael D. Wolters, the general contractor and named insured, did not “cause any environmental pollution.” In reversing the district court's decision, the Minnesota Court of Appeals noted that Minnesota courts have taken a ‘non-technical, plain-meaning approach’ to interpreting the pollution exclusion and held that under this approach, “carbon monoxide constitutes a pollutant” in the Midwest Policy. Midwest Family Mut. Ins. Co. v. Wolters, No. A11–181, 2011 WL 3654498, at *3 (Minn.App. Aug. 22, 2011) (quoting Auto–Owners Ins. Co. v. Hanson, 588 N.W.2d 777, 779 (Minn.App.1999)).

We affirm.


In January 2007 appellant Charles E. Bartz hired respondent Wolters as the general contractor to build a seasonal residence on Bartz's property near Pennington, Minnesota. Wolters purchased a general liability insurance policy from Midwest (“Midwest policy”) that included an absolute pollution exclusion. During construction, Bartz requested that Wolters install an in-floor radiant heating system. This system operates by running heated propylene glycol from a boiler through tubing installed within the concrete floor of the home. Wolters selected Mike's Heating, Inc., to supply the materials for the in-floor radiant heating system. Wolters claims he specified to the Mike's Heating salesman that the boiler purchased must accept propane fuel, and Wolters ultimately purchased a Munchkin boiler manufactured by Radiant Heat Products, LLC.

But the Munchkin boiler purchased by Wolters was designed to run on natural gas only. This is confirmed by photographs of the actual boiler installed in the Bartz home, bearing a large label warning “THIS APPLIANCE SET UP FOR NATURAL GAS ONLY.” Wolters hired defendant Jerry D. Larson to install the boiler, which Larson did, but Wolters personally connected the boiler to a liquid propane line, despite the warning label.

Wolters directed an electrical subcontractor to install carbon monoxide detectors in the Bartz residence. After the detectors were installed by the electrical subcontractor, Wolters claims he tested the detectors and determined that they were operational. But evidence suggests that the detector had not been connected to the AC power source and the 9–volt back-up battery was installed backwards.

In the early morning hours of December 29, 2007, appellant Catherine M. Brewster awoke feeling dazed, disoriented, and nauseous. She tried to wake Bartz, but he was unresponsive. Brewster left the bedroom and tried to open the back door to get fresh air into the home, but her head slammed into the sliding glass door. She fell to the floor with a deep laceration on the bridge of her nose. Brewster stumbled around the kitchen, found a telephone, and called 911.

Shortly thereafter, the Beltrami County Sheriff, Cass Lake Fire Department, and a Cass Lake ambulance arrived at the Bartz home. Both Bartz and Brewster were transported to North Country Regional Hospital. The Fire Department determined that the source of the carbon monoxide was the Munchkin boiler.

The Midwest Policy

The Midwest policy contains the following absolute pollution exclusion:

9. We do not pay for bodily injury or property damage:

a. arising wholly or partially out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants: ...

4) at or from any premises where you or any contractor or subcontractor, directly or indirectly under yourcontrol, are working or have completed work:

a) if the pollutant is on the premises in connection with such work, unless the bodily injury or property damages arise from the heat, smoke or fumes of a fire which becomes uncontrollable or breaks out from where it was intended to be; or

b) if the work in any way involves testing, monitoring, clean-up, containing, treating or removal of pollutants.

In addition, the Midwest Policy defines “pollutants” in the following manner:

5. Pollutants—This means:

a. any solid, liquid, gaseous, thermal, electrical emission (visible or invisible) or sound emission pollutant, irritant or contaminant; or

b. waste, including materials to be recycled, reclaimed or reconditioned as well as disposed of.


Appellants brought litigation against Wolters, alleging negligence in the installation of the boiler and carbon monoxide detectors and breach of express and implied warranties. Midwest appointed defense counsel to represent Wolters in the negligence actions subject to a reservation of rights and initiated a declaratory judgment action, requesting that the district court find that Midwest had no duty to defend or indemnify Wolters for the claims asserted in appellants' lawsuits because coverage was barred under the absolute pollution exclusion.

After a brief period of discovery, Midwest sought summary judgment. The district court denied Midwest's motion, holding that it would be “inappropriate to rule as a matter of law” that the “absolute pollution exclusion bars coverage under the facts in this case,” since Wolters did not “cause any environmental pollution.” The court subsequently entered final judgment against Midwest, ordering that Midwest had a duty to defend or indemnify Wolters.

Midwest appealed, and the court of appeals reversed, noting that Minnesota courts have taken a ‘non-technical, plain-meaning approach’ to interpreting the pollution exclusion” and holding that under this approach, “carbon monoxide constitutes a pollutant” under the Midwest policy. Wolters, 2011 WL 3654498, at *3 (quoting Hanson, 588 N.W.2d at 779). The court stated that while the concerns expressed by appellants appeared “valid, precedent compels an interpretation of the pollution exclusion to include interior pollutants, and any policy-based expansion of that exclusion is beyond our authority.” Id.

On appeal, appellants urge us to follow the majority rule and hold that absolute pollution exclusion clauses are limited to hazards traditionally associated with environmental pollution. Specifically, appellants argue that: (1) the “irritant or contaminant” language of the absolute pollution exclusion clause is ambiguous and must be interpreted in favor of the insured; and (2) a reasonable policyholder in Wolters' position would not have understood the absolute pollution exclusion to preclude coverage in this circumstance.


Midwest claims that appellants waived their claim that the definition of “pollutants” in the Midwest policy is ambiguous by failing to raise this issue at either the district court or the court of appeals and, in fact, conceding that the plain meaning of the Midwest policy includes carbon monoxidewithin the definition of “pollutants.” Midwest also claims that appellants waived their argument, by failing to raise the issue at the district court, the court of appeals, or in their petition for review,1 that a reasonable policyholder would not consider carbon monoxide to be a pollutant within the context of this case because to do so would violate the “expectations” of the insured. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (holding that a reviewing court “must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it”) (internal quotation marks omitted). Because we conclude that appellants' argument that the definition of “pollutants” is ambiguous was fully litigated at both the district court and court of appeals, we hold that the argument is properly before us. We also conclude that it is in the interest of justice for us to consider appellants' argument regarding “reasonable expectations.”


Appellants argue that the ambiguity of “pollutants” was a “key aspect of Appellants' arguments in both the district court and in the [c]ourt of [a]ppeals.” Appellants' briefs to the district court and the court of appeals each contained an entire section devoted to the topic of the ambiguity of the exclusion, entitled:

“The Commercial General Liability Policy Pollution Exclusion is Ambiguous and Therefore Must be Construed in Favor of the Insured”

But at the district court and the court of...

To continue reading

Request your trial
125 cases
  • Mellin v. N. Sec. Ins. Co.
    • United States
    • New Hampshire Supreme Court
    • 24 Abril 2015
    ...1020, 1024–25 (Colo.2013) ; Bituminous Cas. v. Sand Livestock Systems, 728 N.W.2d 216, 221 (Iowa 2007) ; Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 637 (Minn.2013) ; State Farm Fire & Casualty Co. v. Dantzler, 289 Neb. 1, 852 N.W.2d 918, 925 (2014) ; TravCo Ins. Co. v. Ward, 2......
  • Abel v. Abbott Nw. Hosp., A19-0461
    • United States
    • Minnesota Supreme Court
    • 29 Julio 2020
    ...review by raising the same general issue litigated below but under a different theory." Id. ; see also Midwest Family Mut. Ins. Co. v. Wolters , 831 N.W.2d 628, 633–34 (Minn. 2013) (concluding that an issue was properly before our court in part because appellants raised the issue in their b......
  • State Farm Fire & Cas. Co. v. Dantzler
    • United States
    • Nebraska Supreme Court
    • 12 Septiembre 2014
    ...Systems, 728 N.W.2d 216 (Iowa 2007); McKusick v. Travelers Indem., 246 Mich.App. 329, 632 N.W.2d 525 (2001); Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628 (Minn.2013); Heringer v. American Family Mut. Ins. Co., 140 S.W.3d 100 (Mo.App.2004); Cincinnati Ins. Co., supra note 5; Bitum......
  • Med. Staff of Avera Marshall Reg'l Med. Ctr. v. Avera Marshall
    • United States
    • Minnesota Supreme Court
    • 31 Diciembre 2014
    ...genuine issues of material fact exist and whether the district court erred in its application of the law. Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn.2013). We must also construe the facts in the light most favorable to the party against whom summary judgment was gran......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT