Grinnell Mutual Reinsurance Co. v. Wasmuth

(1959) (the dismissal, claiming ap- requirements notice 428-29 for dent moves parties do not relieve the untimely. Rule 77.04 peal is responsibility determining the date of entry judgment). DECISION judg appeal must be taken “from An Although dismissing ap are this we days entry.” after within ment untimely, appears July peal as it also added). (emphasis Minn.R.Civ.App.P.104.01 judgment may adjudicated not have all limit “may not extend or This court judgment in action. A claims which filing appeal a notice time adjudicate fails to all claims is not immedi specifically by law.” except as authorized ately appealable unless the trial court has Minn.R.Civ.App.P.126.02. This court lacks express made an determination that there appeal jurisdiction to consider an just delay entry is no reason for and directs timely served and filed. See Petersen judgment. Minn.R.Civ.App.P. of a final Petersen, (Minn.Ct.App. N.W.2d 104.01; Paterson, Olmscheid v. 1984). appeal served and filed This (Minn.Ct.App.1988). The days July entry more than 90 after express here trial court did not made the untimely. judgment and is determination and the trial court’s order “supplemental judgment” indicated that a governs entry Minn.R.Civ.P. 58.01 awarding expenses incurred the stor pertinent part: judgment provides age disposal hazardous wastes judgment in all cases shall be en- by appellant seized would be entered. The in the signed tered and the clerk appeal entry correct would be taken after roll; judgment entry constitutes judgment adjudicating of a all re final entry judgment; judgment and the maining Minn.R.Civ.App.P. claims. 104.01. entry. not effective such before grant- Respondent’s motion to dismiss is Immediately entry judgment ed. required entry a notice of clerk is serve judgment parties. all Minn.R.Civ.P. Appeal prejudice. dismissed without 77.04. docketing judgment, hand, separate procedure. is a See 548.09,

generally Minn.Stat. subd. § entry judgment After the clerk judgment by recording docket the parties alpha case and the names of the MUTUAL REINSURANCE GRINNELL 2A Hay betical order. D. Herr & R. See COMPANY, Appellant, dock, Minnesota Practice 58.7 at 123 § (1985). However, appeal the time for runs WASMUTH, al., Respondents, entry, docketing. from the date of et Lowell Appellants claim that their Corporation, CIBA-GEIGY et should not be dismissed due to the errors al., Defendants, Appellants of the court administrator. ar Carlson, Edwin Eddie’s d/b/a gue that the court administrator’s defective Insulation, Respondent. entry docketing judgment notice of However, untimely appeal. led to their No. C1-88-1014. comply failure of the court administrator to Appeals Court of of Minnesota. requirements with the of the Rules of Civil ap Procedure does not affect time for Dec. peal. LeRoy v. Figure Skating Club 10, 1989. Review Denied Feb. 576, 578, Minneapolis, 281 Minn. of N.W.2d (1968); Tombs v. Ash worth, 55, 62-63, 255 Minn. 95 N.W.2d

Kay Hunt, Nelson, Nord V. Owen Lom- men, Nelson, Stageberg, P.A., &Cole Min- neapolis, appellant. Maring, Maring, P.A.,

David S. Cahill & Fargo, Wasmuth, for Lowell et al. Dosland, Lillehaug Dosland, Duane A. Nordhougen, Johnson, Lillehaug & P.A. Bldg. American Bank & Trust P.O. Box 100 Moorhead, for Edwin Carlson. Gordon, Benson, Faegre John B. Min- Brunner, neapolis, Thomas W. John W. Cavilia, Lawrence, Wiley, Robert R. Rein & Fielding, D.C., Washington, for amicus cu- riae Ins. Litigation Environmental Ass’n. Barrett, Radio, Thomas J. Thomas J. Haik, Popham, Kaufman, Schnobrich & Ltd., Hintz, Minneapolis, John E. Michael Hammaker, D.C., Washington, K. for amici Honeywell, Inc. curiae and Minnesota Min. Mfg. Co. proper installation on both sides of the Heard, and decided considered CRIPPEN, P.J., places vapor vapor and FORSBERG barrier and some LOMMEN, JJ.* testing agency barrier was torn. began in problem found the 1977 and would

OPINION insulation was re- continue unless the moved. CRIPPEN, Judge. brought declaratory from their home in Mutual The Wasmuths moved seeking a determination that

judgment They necessary May 1981. found liability in insurance “pollution” exclusion destroy many personal property items of Edwin Carlson’s business policies issued to formaldehyde. had absorbed the alleged damage to a coverage for precluded company negli- Their claim that Carlson’s occupants caused formal- and its home gently the insulation was settled installed unexpectedly emitted from deterio- dehyde January in 1987. sold and rating foam insulation Carlson installed. ISSUES summa- The trial court denied Grinnell’s preclude Does the 1. summary granted and ry judgment motion coverage? respondent homeowners. judgment preclude policy dis- 2. Do other exclusions against business were Claims Carlson’s liability had exposure property damage? its for some missed because with re- extinguished by a settlement been Are other factual issues which there spondents. preclude summary judgment? dismissed prior A insurer of Carlson was it settled with the

from the case when ANALYSIS appeals the summa- homeowners. Grinnell summary judgment, On ry judgment. must determine whether there are court material fact issues or whether the trial FACTS application in court erred its of the law. 1977, Marjorie respondents In Lowell and Condominium, 281 Wayzata Betlach of Eddie’s Wasmuth hired Edwin Carlson 328, (Minn.1979). ureaformaldehyde in- Insulation to install 1978, in In the Was- sulation their home. The insurer has the burden of keeping was not muths felt the insulation policy applies. proving that a in their house as warm as it did Fire Henning Nelson Construction Co. v. they in contacted Eddie’s. Eddie’s the fall Insurance man’s Fund American Life house, the insula- examined the determined (Minn.1986). If 383 N.W.2d shrunk, tion had November 1979 language ambiguities in the there are pumped in insulation. additional policy, they must be construed favor reinsulation, Shortly Mrs. after the language “If of the insured. Id. in her Wasmuth became aware of a smell reasonably subject to more policy home, burned, eyes difficulty she had her interpretation, than one there is ambi breathing, from nausea and and suffered Motors, guity.” Heights Inc. v. Columbia Mrs. Wasmuth testified that sore throats. Co., 275 N.W.2d Allstate Insurance gradual, begin- symptoms the onset of (Minn.1979). policy language Whether the ning severity in the fall of 1979. The question ambiguous is a of law. Id. symptoms gradually increased. obtained a test- Wasmuths 1. Pollution Exclusion ing report indicating there was an abnor- policy with Grinnell furnished Carlson’s high formaldehyde in their mally level of unexpected bodily in- liability deteriorating home caused foam insula- by an acci- jury caused im- caused tion. The deterioration was * Const, VI, pursuant Acting judge Appeals by ap- pointment art. 2.§ to Minn. of the Court

dent, “including repeated ground peri continuous ex- inated surface and over water Borden, posure time); Inc. v. conditions.” od of FM Affiliated (S.D.Ohio Insurance F.Supp. agrees policy covers a 1987) (groundwater contamination due to range unexpected damages. broad Ab- deposited wastes); regularly radioactive an sent insurer Casualty Surety v. Aetna Claussen dispute does emission for- (S.D.Ga.1987) (gradual maldehyde physical prop- which caused leaching of wastes from landfill into sur erty damage covered. Ameri rounding groundwater); soil and exclusions, One known as can Motorists Insurance Co. v. General “pollution” exclusion states: Corp., Host (D.Kan.1987) This insurance does (insured regularly dumped tons salt (f) bodily injury years); brine over of at least 75 arising dispersal, discharge, out of the Centennial Insurance Co. v. Lumber smoke, vapors, soot, escape release or mens Mutual fumes, acids, alkalis, chemicals, toxic (E.D.Pa.1987) (in 342 the normal course of pollutants upon contaminants or into or business, insured a party dump had third land, atmosphere any water waste); American hazardous industrial body course of water. Liability Mutual Insurance Co. v. Neville exception There is an to the exclusion when Co., (W.D.Pa. Chemical 650 929 “discharge, disposal, escape release 1987) (insured regularly dumped chemical is sudden and accidental.” ap- Minnesota pollutants and hazardous industrial waste pellate courts have considered this ex- pit period material into unlined over a previously. clusion Fischer & Porter years); more than six The intent of the exclusion clause Liberty Co. v. Mutual Insurance 656 deny coverage polluting to activi (E.D.Pa.1986) (insured regular 132 ties to those who knew or should have ly dumped toxic chemical for at least 30-40 their known actions would cause harm. years); Techalloy Company, v. Inc. Re The insured should not be able seek Co., 388 Pa.Super. 1, liance Insurance 487 coverage for knowingly polluting the envi (1984), (Pa. appeal denied A.2d 820 Oct. Services, Realty ronment. Broadwell Inc. 31, (insured 1985) regularly dumped toxic Fidelity v. Company & New Note, See also years). “TCE” for over 25 York, 516, 533, 76, 218 N.J.Super. 528 A.2d Through Pollution Exclusion Clause (Ct.App.Div.1987). 85 Glass, Looking 1237, 1239, 74 Geo.L.J. We have prior appellate reviewed deci n. 11 involving sions construction of the typical pollution Few elements exception, clause. Without present claim are in this case. Insulation cases which construe the exclu on only part was installed as two occasions sion preclude (1) clause to coverage involve improvement of an a family home. The disposition potentially deliberate hazard damage single to a family was confined substances, produced (2) ous waste or wide dwelling, year and was discovered within spread pollution, (3) claimants, (4) multiple of the second installation. damaging actions over an extended time, involving We found have no cases exclu usually regular in the course of business, sion of (5) a situation similar to discovery damage years In polluting involving case. those few cases conduct. See Inter national damage, small Corp. Minerals & Chemical businesses with limited v. See, Liberty e.g., Mutual insured Insurance Farm had 168 Ill. 361, 96, Family Mutual App.3d Bagley, Insurance Co. 119 Ill.Dec. 522 N.E.2d denied, (1988), 1014, 576, (1978) 122 Ill.2d A.D.2d 409 N.Y.S.2d 218, (chemicals (1988) Ill.Dec. (compa sprayed 530 N.E.2d 246 one on field have ny, reconditioning barrels, in the migrated another); course of Allstate Insurance dumped caustic chemicals which contam- Co. v. Klock Oil 486, 73 A.D.2d substance, dispose he storage nor did toxic waste (1980)(gasoline tank N.Y.S.2d part Payne of his business. See leaked); Sandblasting & Steamclean A-1 Baiden, Or.App. Fidelity Guaranty States United Co., Inc. v. ing (S.D.Fla.1985). (1981), 298 Or. 643 625 aff'd, P.2d purchased protect painting from Carlson insurance (1982) (overspray P.2d 1260 resulting cars). from the damaged passing himself bridge of insulation. Under the broad installation the rules of insur with Consistent afforded, reasonably he ex- in protecting the construction policy ance pect coverage. sured, expectation of the reasonable expecta- determining the reasonable unique given effect cir may be insured insured, ambiguity of terms is tions cumstances, if careful examination of even Atwater, considered. a factor negate that ex provision would at 278. we find there N.W.2d While Creamery v.Co. West pectation. Atwater coverage in this case based Co., 366 Mutual Insurance ern National purpose of exclu- expectations and the (Minn.1985) (citing 276-77 sion, ambiguity. find we also Keeton, Rights Law at Vari Insurance Provisions, 83 Harv.L. Policy ance pollution exclusion where the Even (1970)). 961, 967 Rev. escape applicable is otherwise to an of a land, pollutant upon “into or the atmo recognized pro- narrowly doctrine sphere body water course expecta- tecting the insured’s reasonable water,” discharge if the it does recognizes the: tions undisputed and accidental.” It is “sudden unequal bargaining power between by damages alleged here were caused that parties; the event, including accident—an continuous an lay person’s inability to read and 2. the neither intended exposure, where Carlson policy; understand an insurance expected to cause harm. The ambi nor agent insured relies on the or the guity with the “sudden.” Grin- lies word appropriate company provide “abrupt” argues nell that “sudden” means temporal “quickly” and a definite or has 366 N.W.2d at 277. Creamery, Atwater aspect. v. Aetna See Claussen reasonable-expectations doctrine The Espe at 1573. Surety gives by which to the court a standard “acci cially conjunction used in when contracts without interpreted construe insurance dental,” suddenness be having rely arbitrary on rules which unexpected re reasonably to include the situations and respondents’ do not reflect real-life formaldehyde of into lease having home, damage. and stretch those causing unanticipated without bend justice rules to do individual cases. “sud Other courts have found word Id. at 278. ambiguous. is in the exclusion clause den” “sudden” means It is reasonable believe Considering purpose the nature and Pepper’s unexpected and/or unintended. exclusion, pollution un is the Alloys Fidelity Steel & United States requiring application of Atwa- usual case Guaranty ordinary reader of the exclusion ter. The (S.D.Fla.1987). appellate that We observe reasonably conclude that it would meaning clearly courts are divided respondents’ coverage limit unex sudden. New Castle of the word pected damage due to installation of build and Indem County Accident Hartford home, exclude ing materials in a but would (D.Del. nity problems pervasive pollution environmental 1987). implies This to some authorities dumping. The such as hazardous waste per ambiguity lay from the existence of pollution contains a not a point son’s of view. an exclu delayed-action injury exclusion or appellate which find sud- vapor cases. Carlson did not decisions sion for all unambiguous apply the exclu- produce denness generate or a known hazardous leaking disposal sion of Respondents involve or hazard- that also contend the exclu- period ous a lengthy substances over discharge sion’s to the pollu- involving injuries time. We find no cases “upon land, atmosphere tants any or single negli- to a household as a result of body ambigu- or water course is water” gent building installation material where regard ous with to whether the interior of unambig- the term sudden found to part the Wasmuth home is of the “atmo- uous. sphere.” Because we find other ambi- coverage guity, and on based Appellant emerging claims an nationwide expectations, we do not pollution consensus decide the merits exclusion is unambiguous. of this contention. Technicon Electronics Corp. v. American Home Assurance quality 2. Product App.Div., 533 N.Y.S.2d Once that even if the however, again, by appel- on case relied preclude coverage, clause does not discharge lant involves continuous of toxic exclusions limit some approximately years chemicals for six as damage. property The policy prop- defines part regular practices. business erty physical injury or destruc- case court held that the insured who tion property. or loss of use intentionally discharged pollutants over an period extended of time was bound exclusions to cov- exclusion. erage are as follows: suddenness, Even with a narrow view This insurance does not unreasonable to contend (m) loss tangible of use of clearly explosive limited to calamitous has physically injured not been occurring events a matter moments af- destroyed resulting or negligent ter Under the conduct. restric- (1) delay performance in or lack of suddenness, tive definition of on behalf of the named insured governs discharges over an ex- agreement, contract period tended of time and sudden events (2) the failure the named insured’s occurring are those “over a short products performed work Corp., Technicon Electronics time.” behalf of the named insured to meet Here, N.Y.S.2d at 99. the insulation was level performance, the of fit- quality, negligently installed. The installation of durability ness or repre- warranted or vapor foam both sides of the barrier and by insured; sented the named but this tearing the of the barrier caused immediate apply does loss of use exposure to moisture which resulted in the tangible of property resulting deterioration and release of vapor. Re- the physi- sudden and accidental spondents reported the effects the of for- injury or cal the destruction of maldehyde shortly after the November products named insured's per- work Wagner reinsulation. v. Milwau- by formed or on of behalf the named kee Mutual Insurance 145 Wis.2d products insured after such or work (Ct.App.1988) (gasoline N.W.2d 854 be- put been by any person have use gan leaking immediately pipe was organization insured; other than an damaged, immediately but was not discov- ered). Restriction of the (n) suddenness ex- property damage to the in- named ception to unambiguous scope does not products arising sured’s out of such limit its to the facts here. products any part products; of such (o) ambiguity to work per- inherent “sudden” bol- person’s lay sters the formed of expecta- or on behalf the named tion arising From Carlson’s insured out of work view- the point, victim’s, thereof, and portion materials, release for- or out of maldehyde certainly unexpected, parts or equipment and furnished in con- they reasonably could consider sudden. it nection therewith. DECISION claim respondents’ major portion

A At house. of their $50,000 for the loss pollution Considering purpose doctors, moved the Wasmuths advice reasonable ex- and based They a new one. and built home from their ambiguity of the insured and pectation old home. to sell the unable been “sudden,” have term we find of the of this to the facts exclusion does uninhabitable home was The Wasmuths’ Ambiguity precludes application case. also formaldehyde. Grinnell because (m) policy. use of loss of this involves prod- insured’s of the of the failure because AFFIRMED. performance war- meet the level ucts to by the insured. guaranteed ranted or FORSBERG, Judge (concurring special- is warranted to Presumably, insulation ly): or warmer. The Was- warm keep a house agree gov- I this case is I concur. because not uninhabitable home is muths’ expectations doc- erned the reasonable of the emission cold because is too but Creamery Atwater Co. v. West- trine. See questionable It is whether formaldehyde. Co., 366 ern National Mutual Insurance product which would is a failure (Minn.1985). agree I do not (m) policy. bring it under exclusion ambiguous the insurance clause was nor that the occurrence was “sudden.” prod However, or not the whether again, language applies, once uct failure stating it exception has an

the exclusion of use caused apply to loss

does not physical injury or accidental”

“sudden and products. the insured’s

destruction ambiguous in and accidental”

“Sudden clause, ambigu it is also (m). in exclusion

ous addition, note that the Wasmuths we Marriage of Daniel J. In re the damage personal property also suffered BEESON, Petitioner, not be physical damages which would Respondent, (m). by exclusion precluded (o), (n) by the Exclusions as indicated BEESON, Appellant. Rose Marie court, provide coverage for no trial product materials of the to the work No. C8-88-2273. made respondents Because have insured. coverage, the type for this no claim Appeals of Minnesota. Court of apply. do not exclusions Dec. 3. Other issues summary judg all improperly granted because ment was How defenses were not considered.

of its

ever, claimed is that additional defense that dam have not shown

the Wasmuths the definition

ages their home fall under damage.” It is evident this “property conjunction

defense was considered (m) applied.

determining whether exclusion pres clearly found that the

The trial court injury or formaldehyde constituted

ence of coverage purposes. agree. We

damage for

Case Details

Case Name: Grinnell Mutual Reinsurance Co. v. Wasmuth

Court Name: Court of Appeals of Minnesota

Date Published: Dec 13, 1988

Citation: 432 N.W.2d 495

Docket Number: C1-88-1014

Court Abbreviation: Minn. Ct. App.