Connors v. Zurich American Insurance
872 N.W.2d 109
Wis. Ct. App.2015Background
- Plaintiff Patrick Connors sued his former employer's insurer after alleging he inhaled Legionella pneumophila aerosolized from the foundry's cooling towers and developed Legionnaires' disease.
- Connors alleged the foundry negligently failed to maintain cooling towers, allowing bacterial growth and dispersal to fresh-air intakes.
- The insurer (Charter Oak) invoked a policy pollution exclusion; an Indiana-endorsed definition of "pollutants" replaced the standard definition and listed four categories of included substances (petroleum products; halogenated solvents; coal-tar/MGP byproducts/PAHs/PCBs; pesticides and listed inorganic contaminants).
- Charter Oak moved for summary judgment, submitting expert evidence that aerosolized Legionella are harmful and not universally present in air, arguing they are "contaminants"/"pollutants" excluded by the policy.
- The trial court granted summary judgment for the insurer; the court of appeals reversed, holding the endorsement-created definition is ambiguous as to whether mist-/vapor-borne bacteria fit the listed categories and a reasonable insured could expect coverage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the policy's pollution exclusion unambiguously excludes coverage for injuries caused by aerosolized Legionella | Connors: endorsement narrows the exclusion to industrial/environmental substances; a reasonable insured would not expect bacteria inhalation claims to be excluded | Charter Oak: Legionella in mist are "contaminants/pollutants" under the policy (and under the Wilson Mutual framework) and thus excluded | Reversed summary judgment — the endorsement's definition is ambiguous from the insured's perspective; coverage cannot be barred as a matter of law |
| Proper interpretive framework: apply prior cases construing the standard pollution exclusion (e.g., Wilson Mutual) | Connors: endorsement language changes the standard test; prior cases do not control | Charter Oak: standard pollution-exclusion jurisprudence should govern; bacteria are not "universally present" and are undesired, so exclusion applies | Court: prior cases (Wilson Mutual, Preisler) interpret different language; they are distinguishable and not dispositive here |
| Whether the endorsement's illustrative categories and "regardless of whether specifically identified" clause render bacteria plainly within the exclusion | Connors: listed categories focus on commercial/industrial products/byproducts, so bacteria do not obviously fit | Charter Oak: the clause means the list is illustrative and does not limit the broad contaminant definition | Held: clause is susceptible to multiple reasonable readings (could be narrowing via ejusdem generis or could be broad); ambiguity favors insured |
| Effect of the insured-expectation clause ("insured expects or considers... to be a pollutant") on interpretation | Connors: clause is inconsistent with rule requiring interpretation from reasonable-insured viewpoint | Charter Oak: clause undermines insured's expectation argument | Held: the provision is puzzling and at least ambiguous; it does not eliminate ambiguity nor justify summary judgment for insurer |
Key Cases Cited
- Wilson Mut. Ins. v. Falk, 360 Wis. 2d 67, 857 N.W.2d 156 (WI 2014) (articulates two-part test for when substances are "pollutants" under the standard pollution exclusion)
- Preisler v. Gen. Cas. Ins., 360 Wis. 2d 129, 857 N.W.2d 136 (WI 2014) (applies limiting principles to the standard pollution exclusion)
- Landshire Fast Foods v. Employers Mut. Cas. Co., 269 Wis. 2d 775, 676 N.W.2d 528 (WI Ct. App. 2004) (interpreting "contaminant" in a standard pollution-exclusion context involving Listeria)
- Heinecke v. Aurora Healthcare, Inc., 351 Wis. 2d 463, 841 N.W.2d 52 (WI Ct. App. 2013) (describes Legionella transmission via contaminated mist/vapor)
- Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 596 N.W.2d 429 (WI 1999) (ambiguities in exclusion clauses construed narrowly against insurer)