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The Wisconsin Supreme Court Holds That The Absolute Pollution Exclusion Is Applicable To Bat Guano

In Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20 (March 6, 2012), the Wisconsin Supreme Court held that the pollution exclusion in the homeowners' policy excluded coverage for the loss of their home that resulted from the accumulation of bat guano. The plaintiffs sought coverage under their homeowners' policy issued by the defendant, Auto-Owners Insurance Company, for the removal and clean up of bat guano in their vacation home. The bat guano had emitted a "penetrating and offensive" odor in the home. Auto-Owners denied the claim on the grounds that the pollution exclusion clause excluded coverage. This pollution exclusion excluded coverage for "loss resulting directly or indirectly from…discharge, release, escape, seepage, migration or dispersal of pollutants…" Pollutants were defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gases and waste. Waste includes materials to be recycled, reconditioned or reclaimed."

The Wisconsin Supreme Court first determined that bat guano fell unambiguously within the policy's definition of "pollutants." The Court found that bat guano, composed of bat feces and urine, either was or threatened to be a solid, liquid, or gaseous irritant or contaminant. Additionally, the policy explicitly listed "waste" as a type of irritant or contaminant. The Court determined that "waste" was not ambiguous despite that it can have multiple dictionary definitions. The Court instead focused on whether a reasonable person in the insureds' position would understand bat guano to be waste. Answering affirmatively, the Court found that bat guano is composed of bat feces and urine, which are commonly understood to be waste. Thus, the Court held that a reasonable homeowner would understand bat guano to be a pollutant.

Next, the Court determined the Hirschhorns' alleged loss resulted from the "discharge, release, escape, seepage, migration or dispersal" of bat guano under the terms of the pollution exclusion clause. The Court construed these undefined terms according to their plain and ordinary meanings as understood by a reasonable person in the insureds' position. The Court found that the bat guano, which was deposited and once contained between the home's siding and walls, had emitted a foul odor that spread and infested the home to the point of destruction. The Court held this type of loss fell squarely within the pollution exclusion clause.

Accordingly, the Wisconsin Supreme Court reversed the decision of the court of appeals.

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, 2012 WL 695081 (March 6, 2012)

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About this Author

Heidi Vogt, von Briesen Roper Law Firm, Milwaukee, Insurance and Litigation Law Attorney

Heidi Vogt is a Shareholder and Co-Chair of the Litigation and Risk Management Practice Group as well as the Chair of the Insurance Coverage and Risk Management Section. Her practice focuses on insurance coverage litigation, commercial disputes, constitutional law, and complex litigation. She has represented insurance companies in Wisconsin and across the country in both state and federal courts in complex insurance coverage matters for more than 20 years.

She represents and counsels insurance clients on a wide variety of...

Nick Castronovo, Von Briesen Roper Law Firm, Milwaukee, Corporate, Health and Litigation Law Attorney

Nick Castronovo is a member of the Litigation and Risk Management Practice Group. His practice focuses on commercial and business litigation including contract and lease disputes, construction and property damage claims, OSHA counseling and citation defense, and general civil litigation matters.

Nick helps clients understand the different strategies and potential outcomes available at the beginning of each dispute, appreciates and strongly advocates his clients’ interests at each stage of the litigation, and recognizes creative and positive resolutions to meet his clients’ goals. For example, Nick utilizes this approach when he assists with the handling of a national transportation company’s common carrier claims and accident investigation situations.

Prior to joining von Briesen, Nick worked in all three branches of government. He served as an intern for the Wisconsin Governor’s Office of Legal Counsel, for Justice David Prosser of the Wisconsin Supreme Court and for United States Congressman James Sensenbrenner. His experience relative to government affairs includes analyzing state constitutional law, evaluating disclosures pursuant to Wisconsin’s open records law, assessing compliance with Wisconsin’s open meeting law, assisting with the state administrative rulemaking process, and analyzing legislative history.

During law school, Nick interned at the Wisconsin Department of Justice and was an active member of both the UW Law School’s Moot Court Board and Mock Trial Team.