Hirschhorn v. Auto-Owners Insurance
809 N.W.2d 529
Wis.2012Background
- Hirschhorns' vacation home, insured by Auto-Owners, suffered loss allegedly caused by bat guano accumulation between siding and walls.
- Policy contains a pollution exclusion: coverage excludes loss from discharge, release, escape, seepage, migration or dispersal of pollutants; pollutants defined broadly including waste.
- Hirschhorns sued Auto-Owners for breach of contract and bad faith seeking damages for the total loss plus other relief.
- Circuit Court initially denied summary judgment, then granted reconsideration and held pollution exclusion applied, dismissing the complaint.
- Court of Appeals reversed, finding the pollution exclusion ambiguous and construed in the insured's favor.
- Wisconsin Supreme Court reversed the Court of Appeals, holding bat guano unambiguously a pollutant and its loss resulted from the pollution exclusion’s covered mechanisms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does bat guano fall within the policy's definition of pollutants? | Hirschhorns contend 'pollutants' is ambiguous and bat guano may not be included. | Auto-Owners argues bat guano is an unambiguous pollutant under the policy's broad definition. | Bat guano unambiguously falls within 'pollutants'. |
| Did the loss result from the discharge, release, escape, seepage, migration or dispersal of bat guano? | Loss resulted from odor and contamination spreading inside the home, not from a covered discharge mechanism. | Loss occurred via dispersion and release of bat guano, triggering the exclusion. | Yes, the loss resulted from the listed discharge/dispersal activities affecting the home. |
Key Cases Cited
- Peace v. Northwestern National Insurance Co., 228 Wis. 2d 106 (Wis. 1999) (pollution exclusion interpreted to cover dispersal of pollutants like lead)
- Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224 (Wis. 1997) (exhaled carbon dioxide not necessarily a pollutant; limits pollution exclusion by reasonableness)
- United States Fire Insurance Co. v. Ace Baking Co., 164 Wis. 2d 499 (Wis. Ct. App. 1991) (pollution exclusion applied to foul-smelling fragrance contaminant in warehouse)
- Siebert v. Wis. Auto Mut. Ins. Co., 333 Wis. 2d 546 (Wis. 2011) (insurance policy interpretation; ambiguity and de novo review standards)
- Zarder v. Humana Ins. Co., 324 Wis. 2d 325 (Wis. 2010) (ambiguity and contra proferentem in policy interpretation)
- Langridge v. State Farm Mut. Auto. Ins. Co., 275 Wis. 2d 35 (Wis. 2004) (ambiguity rule and contra proferentem applied to exclusions)