Wisconsin Public Service Corp. v. Heritage Mut. Ins. Co.
| Decision Date | 22 April 1997 |
| Docket Number | No. 95-2109,95-2109 |
| Citation | 561 N.W.2d 726,209 Wis.2d 160 |
| Parties | WISCONSIN PUBLIC SERVICE CORPORATION, a Wisconsin Corporation, Plaintiff-Appellant, v. HERITAGE MUTUAL INSURANCE COMPANY, a Wisconsin Insurance Corporation, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by Glenn H. Hartley and Schmitt, Hartley & Koppelman, S.C., Merrill.
For the plaintiff-appellant there was a brief by David A. Piehler and Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.
Amicus curiae brief was filed by Timothy J. Muldowney, Jeffrey J. Kassel and LaFollette & Sinykin, Madison, and Richard M. Hagstrom and Zelle & Larson, Minneapolis, MN , for the Alliance of American Insurers.
Amicus curiae brief was filed by Richard C. Ninneman, Jeffrey O. Davis, Joan M. Harms and Quarles & Brady, Milwaukee, for the Wisconsin Realtors Association, Building Owners and Managers Association and the Wisconsin Association for Environmental Insurance Protection.
Amicus curiae brief was filed by Raymond R. Krueger, Cynthia E. Smith and Michael Best & Friedrich, Milwaukee, for the Association of Environmentally Responsible Businesses, Inc., Associated General Contractors of Greater Milwaukee, Inc., Counsel of Small Business Executives, Petroleum Marketers Association of Wisconsin, Wisconsin Fabricare Institute, Inc., Wisconsin Automotive Trade Association and Wisconsin Federation of Cooperatives.
Amicus curiae was filed by Michael D. Flanagan, Thomas C. Ewing, Mary K. Braza, Lisa S. Neubauer and Foley & Lardner, Milwaukee, for Wisconsin Policyholders Association.
Amicus curiae was filed by Robert C. Burrell, Stephen M. Compton and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee and of counsel Laura A. Foggan, Daniel E. Troy, Leslie A. Platt and Wiley, Rein & Fielding, Washington, D.C., for the Wisconsin Insurance Alliance and National Association of Independent Insurers.
Heritage Mutual Insurance Company (HMIC) seeks review of a published decision of the court of appeals, 1 which reversed a judgment of the Circuit Court for Lincoln County, J. Michael Nolan, Judge. The circuit court granted summary judgment in favor of HMIC on the grounds that it has no duty to provide coverage for its insured, Helmreich Utility Construction (Helmreich), under the comprehensive general liability (CGL) insurance policy at issue. The circuit court held that no coverage exists because reimbursement for investigation and remediation expenses does not constitute "damages" under the policy, based on City of Edgerton v. General Cas. Co., 184 Wis.2d 750, 517 N.W.2d 463 (1994). The circuit court also concluded that a pollution exclusion contained in the policy applies. The court of appeals reversed, concluding that HMIC has a duty to defend and indemnify 2 Helmreich because: (1) parties other than the Environmental Protection Agency (EPA) or Department of Natural Resources (DNR) seek recovery from Helmreich for damages it negligently caused through contamination to property that does not fit within the policy's owned-property exclusion; therefore, the suit seeks "damages" under the insurance policy; and (2) the policy's pollution exclusion does not apply in the present case because Helmreich never received a governmental directive or request that it remediate the contaminated property. Wisconsin Public Serv. Corp. v. Heritage Mut. Ins. Co., 200 Wis.2d 821, 829-836, 548 N.W.2d 544 (Ct.App.1996). We agree with the court of appeals, and therefore affirm its decision.
¶2 The pertinent facts are not in dispute. 3 Sometime prior to October 4, 1990, Wisconsin Public Service (WPS) agreed to install gas service to a building owned by the Tomahawk School District (Tomahawk). Actual installation of the service line was to be done by Helmreich, which was hired as an independent contractor by WPS. Helmreich executed an indemnity agreement in favor of WPS, whereby Helmreich agreed to indemnify WPS against "all actions, claims, demands, damages, losses, costs and expenses which relate to ... damage to property of any kind where the action claimed damage, loss, cost or expense in any way arising out of, in whole or in part, any act or omission of the contractor." On October 4, 1990, while installing the service line, Helmreich cut an underground pipe that carried fuel oil. By the time the leak was discovered, the surrounding soil had been contaminated.
¶3 On October 22, 1990, the State of Wisconsin DNR sent letters to Tomahawk and WPS, ordering them to investigate and remediate the property. WPS has paid all bills without admitting responsibility thereof. On March 17, 1993, WPS commenced a direct action against HMIC, the insurer for Helmreich, based upon a CGL policy it had issued to Helmreich. On January 13, 1995, HMIC filed a motion for summary judgment, claiming that reimbursement for investigation and remediation costs does not constitute "damages" under the policy, and that a pollution exclusion contained in the policy applies.
¶4 In General Cas. Co. v. Hills, 209 Wis.2d 167, 561 N.W.2d 718 (1997), this court held that where parties other than the EPA or DNR seek recovery from an insurer for damages its insured allegedly inflicted through contamination on property that does not fit within an owned-property exclusion, the suit...
To continue reading
Request your trial
-
Johnson Controls v. Employers Ins. of Wausau
... ... Mutual Liability Insurance Company of Wisconsin), Affiliated FM Insurance Company, AIU Insurance ... , 561 N.W.2d 718 (1997), the insured, a service station owner, sought liability insurance ... Citing Edgerton and Amcast Industrial Corp. v. Affiliated FM Insurance Co., 221 Wis. 2d ... indemnify the school district for future public expenditures. To explain why such costs did not ... v. Utica Mut. Ins. Co., 625 A.2d 1021, 1033 (Md. 1993) ; ... Heritage Mut. 2003 WI 137 Ins. Co., 209 Wis. 2d 160, ... ...
-
Foster-Gardner, Inc. v. National Union Fire Ins. Co.
... ... an imminent or substantial danger to the public or [56 Cal.App.4th 209] the environment because ... Protection Mut. Ins. (1995) 166 Ill.2d 520, 211 Ill.Dec. 459, ... in the instant case, the four-to-three Wisconsin Supreme Court decision in City of Edgerton ... cannot be considered the equivalent of a service of process so as to initiate a suit ... [p] ... Page 136 ... see also Public Ser. Corp. v. Heritage Mut. Ins. Co. (App.1996 ) 200 ... ...
-
Menasha Corp. v. Lumbermens Mut. Cas. Co.
... ... United States District Court, E.D. Wisconsin ... March 18, 2005 ... Page 888 ... See Midway Motor Lodge of Brookfield v. Hartford Ins. Group, 226 Wis.2d 23, 37-38, 593 N.W.2d 852 (1999); ... Pub. Serv. Corp. v. Heritage Mut. Ins. Co., 209 Wis.2d 160, 162-63, 561 N.W.2d 726 ... ...
-
Johnson Controls, Inc. v. Employers Ins. of Wausau
... ... Mutual Liability Insurance Co. of Wisconsin, Affiliated FM ... Insurance Company, AIU ... Corp. v. Affiliated FM Ins. Co., No. 96-2968, slip op ... Serv. Corp. v. Heritage Mut. Ins. Co., 209 Wis.2d 160, 561 N.W.2d 726 ... of a landfill site by waste from a service station. Id., 209 Wis.2d at 171, 561 N.W.2d at ... In this case, unlike Hills, Wisconsin Public Service, and Spic & Span, but like City of ... ...