Wilson Mut. Ins. Co. v. Falk, Nos. 2013AP691

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN, J.
Citation360 Wis.2d 67,857 N.W.2d 156
Decision Date30 December 2014
Docket Number2013AP776.,Nos. 2013AP691
PartiesWILSON MUTUAL INSURANCE COMPANY, Plaintiff–Respondent–Petitioner, v. Robert FALK and Jane Falk, Defendants–Appellants, State of Wisconsin Department of Natural Resources, Lee Laatsch, Michael Jante, Jessica Jante, Ruth Hetzel, Jeff Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy Lorge, Paul Wilkins, Addicus Jante and Trilogy Health Insurance Inc., Defendants. Wilson Mutual Insurance Company, Plaintiff–Respondent–Petitioner, v. Robert Falk, Jane Falk, State of Wisconsin Department of Natural Resources, Lee Laatsch, Ruth Hetzel, Paul Wilkins and Trilogy Health Insurance, Inc., Defendants, Michael Jante, Jessica Jante, Jeff Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy Lorge and Addicus Jante, Defendants–Appellants.

360 Wis.2d 67
857 N.W.2d 156

WILSON MUTUAL INSURANCE COMPANY, Plaintiff–Respondent–Petitioner
v.
Robert FALK and Jane Falk, Defendants–Appellants
State of Wisconsin Department of Natural Resources, Lee Laatsch, Michael Jante, Jessica Jante, Ruth Hetzel, Jeff Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy Lorge, Paul Wilkins, Addicus Jante and Trilogy Health Insurance Inc., Defendants.


Wilson Mutual Insurance Company, Plaintiff–Respondent–Petitioner
v.
Robert Falk, Jane Falk, State of Wisconsin Department of Natural Resources, Lee Laatsch, Ruth Hetzel, Paul Wilkins and Trilogy Health Insurance, Inc., Defendants, Michael Jante, Jessica Jante, Jeff Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy Lorge and Addicus Jante, Defendants–Appellants.

Nos. 2013AP691
2013AP776.

Supreme Court of Wisconsin.

Argued Sept. 12, 2014.
Decided Dec. 30, 2014.


857 N.W.2d 159

For the plaintiff-respondent-petitioner, there were briefs by Ryan R. Graff and Nash, Spindler, Grimstad & McCracken LLP, Manitowoc. Oral argument by Ryan R. Graff.

For defendants-appellants Robert and Jane Falk, there was a brief by Ronald R. Ragatz and DeWitt Ross & Stevens S.C., Madison. Oral argument by Ronald R. Ragatz.

For defendants-appellants-respondents Michael Jante, Jessica Jante, Addicus Jante, Jeff Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, and Tammy Lorge, there was a brief by Ryan J. Hetzel and Hetzel & Nelson, LLC, West Bend. Oral argument by Ryan J. Hetzel.

An amicus curiae brief was filed by Laura A. Foggan and Wiley Rein LLP, Washington, D.C.; and Robert C. Burrell, Joshua B. Cronin, and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, on behalf of Complex Insurance Claims Litigation Association.

An amicus curiae brief was filed by Timothy M. Barber and Axley Brynelson LLP, Madison, on behalf of Wisconsin Insurance Alliance.

Opinion

MICHAEL J. GABLEMAN, J.

360 Wis.2d 75

¶ 1 We review a published decision of the court of appeals1 reversing the Washington County circuit court's order granting declaratory judgment in favor of Wilson Mutual Insurance Company (“Wilson Mutual”).2 The circuit court concluded that Wilson Mutual had no duty to defend

857 N.W.2d 160

or indemnify Robert and Jane Falk (“the Falks”) against allegations that in 2011 they negligently spread manure3 on their property and thereby polluted their neighbors' wells because the Wilson Mutual policy

360 Wis.2d 76

contained an exclusion for pollution.4 The court of appeals reversed, concluding that a reasonable farmer would consider cow manure to be “liquid gold” and not a pollutant when applied to a farm field. Wilson Mut. Ins. Co. v. Falk, 2014 WI App 10, ¶¶ 1, 3, 352 Wis.2d 461, 844 N.W.2d 380.

¶ 2 Three issues are presented for our consideration: 1) whether a pollution exclusion in Wilson Mutual's General Farm Coverage Liability policy excludes coverage for harm caused by the seepage of cow manure into wells; 2) whether the Farm Chemicals Limited Liability Endorsement provides coverage for physical injury to property caused by the seepage of cow manure into wells; and 3) whether the incidental coverages section of Wilson Mutual's General Farm Coverage Liability policy provides indemnity coverage for and a duty to defend against harm caused by the seepage of cow manure into wells.

¶ 3 We hold that the pollution exclusion clause in Wilson Mutual's General Farm Coverage Liability policy issued to the Falks unambiguously excludes

360 Wis.2d 77

coverage for well contamination caused by the seepage of cow manure. First, we conclude that cow manure falls unambiguously within the policy's definition of “pollutants” when it enters a well. Second, we conclude the Farm Chemicals Limited Liability Endorsement likewise excludes coverage for “ physical injury to property” resulting from pollutants. Finally, we conclude that the “Damage to Property of Others” clause under the incidental coverages section provides incidental coverage up to $500 for each unique well that has allegedly been contaminated by the Falks' manure, and Wilson Mutual has a duty to defend. Accordingly, the decision of the court of appeals is reversed, and we remand to the circuit court for further proceedings consistent with our holding.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 4 The Falks are owners and operators of a dairy farm in West Bend, Wisconsin, located in Washington County. Paul Wilkins, Karen Wilkins, Lee Laatsch, Ruth Hetzel, Michael Jante, Jessica Jante, Addicus Jante, James Wiedmeyer, Kim Wiedmeyer, Paul Lorge, and Tammy Lorge (collectively the “injured parties”) are all neighbors of the Falks.

¶ 5 In early 2011, the Falks spread liquid cow manure onto their farm fields for the purpose of fertilization. In an attempt to safely apply the manure, the Falks obtained a nutrient management plan prepared by a certified crop agronomist and

857 N.W.2d 161

approved by the Washington County Land and Water Conservation Department.

¶ 6 In a letter dated May 23, 2011, the Wisconsin Department of Natural Resources (“DNR”) informed the Falks it had received several well contamination

360 Wis.2d 78

complaints from the Falks' neighbors. The DNR investigated the matter and concluded that manure from the Falks' farm leeched into and contaminated wells owned by the injured parties. The contamination made the injured parties' private wells unusable and the water undrinkable. The injured parties alleged that manure, nitrates, and bacteria, including E. coli,5 seeped into their wells. Additionally, Addicus Jante, a minor, claimed that he contracted bacterium avium6 from drinking the contaminated water and, as a result, was hospitalized and underwent surgery.

¶ 7 The DNR used grant money to provide temporary clean water to Laatsch and Hetzel and to replace their wells. The DNR subsequently requested reimbursement from the Falks for these expenses. The Lorges, Jantes, and Wiedmeyers did not qualify for a DNR grant, and had to pay out of pocket. The Wilkins paid out of pocket to replace their well and do not seek repayment from the Falks.

¶ 8 Wilson Mutual sold two farmowner policies to the Falks, the first insuring the period from April 10, 2010, to April 10, 2011, and the second insuring the period from April 10, 2011, to April 10, 2012. The policies were identical in all material respects and we therefore will refer to the policies collectively as “the

360 Wis.2d 79

Wilson Mutual policy.” The Wilson Mutual policy was titled: “ Personal Liability Coverage (Farm)” and was designed for owners and operators of farms.

¶ 9 The Wilson Mutual policy excluded general liability coverage for both “bodily injury” and/or “property damage” “which results from the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of ‘pollutants' into or upon land, water, or air.” The policy stated:

“We” [Wilson Mutual] do not pay for a loss if one or more of the following excluded events apply to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded event.
...
l. “bodily injury” or “property damage” which results from the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of “pollutants” into or upon land, water, or air ...

¶ 10 “Pollutant” is defined earlier in the policy as: “any solid, liquid, gaseous, thermal, or radioactive irritant or contaminant, including acids, alkalis, chemicals, fumes, smoke, soot, vapor, and waste. ‘Waste’ includes materials to be recycled, reclaimed, or reconditioned, as well as disposed of.”

¶ 11 In addition to general liability coverage, the Wilson Mutual policy also included an endorsement for “Farm Chemicals

857 N.W.2d 162

Limited Liability” and an “Incidental Coverages” section.

¶ 12 The Farm Chemicals Endorsement reads, in relevant part:

360 Wis.2d 80
Farm Chemicals Limited Liability. “We” pay those sums which an “insured” becomes legally obligated to pay as damages for physical injury to property if:
1. The injury is caused by the discharge, dispersal, release, or escape of chemicals, liquids, or gases into the air from the “insured premises”. The injury must be caused by chemicals, liquids, or gases that the “insured” has used in the normal and usual “farming” operation; and
2. The chemicals, liquids, or gases have not been discharged, dispersed, or released from an aircraft.
...
...

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18 practice notes
  • Fontana Builders, Inc. v. Assurance Co. of Am., No. 2014AP821.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2016
    ...Chartis Specialty Ins. Co., 2015 WI 28, ¶¶ 24–25, 361 Wis.2d 396, 861 N.W.2d 533 ; Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶¶ 23–24, 360 Wis.2d 67, 857 N.W.2d 156 ; Hirschhorn v. Auto–Owners Ins. Co., 2012 WI 20, ¶ 23, 338 Wis.2d 761, 809 N.W.2d 529 ; 369 Wis.2d 525 Froedtert Mem'l Luthe......
  • Foster v. Regent Ins. Co., No. 2014AP2592.
    • United States
    • Court of Appeals of Wisconsin
    • July 26, 2016
    ...only ‘if they are fairly susceptible to more than one reasonable interpretation.’ “ Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶ 24, 360 Wis.2d 67, 857 N.W.2d 156 (citations omitted). “The mere fact that a word has more than one dictionary meaning, or the parties disagree about the meaning,......
  • Preisler v. Gen. Cas. Ins. Co., No. 2012AP2521.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 30, 2014
    ...analysis unclear, it is unnecessary to the decision, and inconsistent with Wilson Mutual Ins. Co. v. Falk, 2014 WI 136, ––– Wis.2d ––––, 857 N.W.2d 156, a case decided on the same day, on the same issue.¶ 61 It is unclear whether the majority is embarking on a cause approach or damage appro......
  • ACUITY v. Chartis Specialty Ins. Co., No. 2013AP1303.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 17, 2015
    ...See Preisler v. Gen. Cas. Ins. Co., 2014 WI 135, ¶ 40, 360 Wis.2d 129, 857 N.W.2d 136; Wilson Mutual Ins. Co. v. Falk, 2014 WI 136, ¶ 38, 360 Wis.2d 67, 857 N.W.2d 156.17 Fireman's Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶ 19, 261 Wis.2d 4, 660 N.W.2d 666. See also Estate of Sus......
  • Request a trial to view additional results
18 cases
  • Fontana Builders, Inc. v. Assurance Co. of Am., No. 2014AP821.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2016
    ...Chartis Specialty Ins. Co., 2015 WI 28, ¶¶ 24–25, 361 Wis.2d 396, 861 N.W.2d 533 ; Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶¶ 23–24, 360 Wis.2d 67, 857 N.W.2d 156 ; Hirschhorn v. Auto–Owners Ins. Co., 2012 WI 20, ¶ 23, 338 Wis.2d 761, 809 N.W.2d 529 ; 369 Wis.2d 525 Froedtert Mem'l Luthe......
  • Foster v. Regent Ins. Co., No. 2014AP2592.
    • United States
    • Court of Appeals of Wisconsin
    • July 26, 2016
    ...only ‘if they are fairly susceptible to more than one reasonable interpretation.’ “ Wilson Mut. Ins. Co. v. Falk, 2014 WI 136, ¶ 24, 360 Wis.2d 67, 857 N.W.2d 156 (citations omitted). “The mere fact that a word has more than one dictionary meaning, or the parties disagree about the meaning,......
  • Preisler v. Gen. Cas. Ins. Co., No. 2012AP2521.
    • United States
    • United States State Supreme Court of Wisconsin
    • December 30, 2014
    ...analysis unclear, it is unnecessary to the decision, and inconsistent with Wilson Mutual Ins. Co. v. Falk, 2014 WI 136, ––– Wis.2d ––––, 857 N.W.2d 156, a case decided on the same day, on the same issue.¶ 61 It is unclear whether the majority is embarking on a cause approach or damage appro......
  • ACUITY v. Chartis Specialty Ins. Co., No. 2013AP1303.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 17, 2015
    ...See Preisler v. Gen. Cas. Ins. Co., 2014 WI 135, ¶ 40, 360 Wis.2d 129, 857 N.W.2d 136; Wilson Mutual Ins. Co. v. Falk, 2014 WI 136, ¶ 38, 360 Wis.2d 67, 857 N.W.2d 156.17 Fireman's Fund Ins. Co. of Wis. v. Bradley Corp., 2003 WI 33, ¶ 19, 261 Wis.2d 4, 660 N.W.2d 666. See also Estate of Sus......
  • Request a trial to view additional results

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