135 A.3d 272
Vt.2015Background
- Neil and Patricia Whitney live in a Rutland home insured by Vermont Mutual. They are foster parents and discovered bed bugs after a new foster child was placed with them.
- At DCF’s request, Triple A Pest Control sprayed the home "corner to corner, wall to wall," including personal effects, oven interior, and ductwork, using the pesticide chlorpyrifos.
- Chlorpyrifos is toxic, banned for residential use by the EPA, and the applicator’s use violated federal and state law; testing showed surface levels far above the EPA action level.
- The Whitneys were advised to vacate and have been unable to inhabit their home since April 29, 2013; they submitted a claim to Vermont Mutual, which denied it under a pollution-exclusion clause in Coverage A.
- The trial court granted summary judgment to the Whitneys, finding the pollution exclusion ambiguous and construing it for coverage; Vermont Mutual appealed and the Supreme Court reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the policy's pollution exclusion is ambiguous | Whitney: terms like "pollution" and "discharge/dispersal/release" are ambiguous and should be construed in favor of coverage | Vermont Mutual: language is plain and unambiguous; standard interpretation excludes the loss | Court: clause is unambiguous; interpret according to plain meaning and not limited to "traditional" environmental disasters |
| Whether chlorpyrifos spraying falls within the exclusion (i.e., is a "pollutant/contaminant/irritant" and a "discharge/dispersal/release") | Whitney: exclusion should be read narrowly; ordinary indoor pesticide application should not be treated as pollution | Vermont Mutual: the corner-to-corner spraying released a toxic contaminant; chlorpyrifos fits the policy's definition of pollutant/contaminant/irritant | Court: chlorpyrifos, sprayed throughout the home in violation of law and at levels well above EPA action levels, unambiguously qualifies as a pollutant and the spraying is a dispersal/release; exclusion applies |
Key Cases Cited
- MacKinnon v. Truck Ins. Exch., 73 P.3d 1205 (Cal. 2003) (narrow construction of pollution exclusions; limits to "traditional" environmental pollution)
- Quadrant Corp. v. Am. States Ins. Co., 110 P.3d 733 (Wash. 2005) (upholding broad application of pollution exclusion language)
- Haman, Inc. v. St. Paul Fire & Marine Ins. Co., 18 F. Supp. 2d 1306 (N.D. Ala. 1998) (regulated pesticide can be a pollutant/contaminant)
- Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla. 1998) (hazardous chemicals qualify as pollutants for exclusion)
- Great Lakes Chem. Corp. v. Int’l Surplus Lines Ins. Co., 638 N.E.2d 847 (Ind. Ct. App. 1994) (soil-fumigant pesticide treated as a pollutant under literal meaning)