*1 59(е) mistakes made correction of is to allow of Rule (purpose court). its court superior that the abused we conclude Accordingly, motion amend post-judgment NSIC’s granting discretion 59(e) 15 nor Rule Rule Neither judgment. vacate complaint or timely raise own failure from NSIC’s relief provides trial erred court we conclude claim. Because recoupment all, do not review claim at recoupment considering of the claim itself. disposition court’s vacated; Myer attorney’s judgment is award of fees vacated; other below is in all judgment Bentob affirmed respects.
Opinion August Filed *3 Franco, Jr., L. John Burlington, for Plaintiff-Appellant/Cross- Appellee. Robert A Mello, PLC, Mello of Law A Robert South Office of
Burlington, for Defendant-Appellee/Cross-Appellant. Johnson, J. This the latest appeal long-running over dispute the remediation of environmental contamination of a property formerly owned plaintiff/appellant Richard Towns the Town of Johnson. The parties have cross-appealed from a series of rulings trial court relating to the availability insurance coverage for the costs of investigation and abatement of the contamination under issued defendant/cross-appellant (Northern) Security Northern Company Insurance for a period years several the 1980s. The pаrties’ claims include assertions (1) that the trial court erroneously; granted summary judgment favor Northern on the basis of the policy’s business-pursuits exclusion; rejected Northern’s claim exposure that continuous to contamination during policy period, which was discovered after the policy had expired, was insufficient to trigger coverage; (3) apportioned indemnity defense and costs between Towns *4 Northern on based percentage spent risk; time on the and (4) rejected claim Northern’s that Towns’s suit was barred judicata. doctrine of court, res Although addressed trial claims based the owned-property exclusion and prompt-notice provisions of are also raised. For the set reasons forth and for further in remand below, part, in reverse part, affirm we proceedings.
¶2. history may be sum- and procedural facts underlying The Johnson property resided at follows. Towns marized as time, he a substantial this diverted During from 1972 to to the business waste-hauling from his of waste and debris amount and create a steep embankment use as fill to level property fill some of the debris to lot. He also used larger and rear safer Towns continued swimming property. in front of the a small hole he in June 1987. until sold it deposit debris at the fill, owners, about the contacted Thereafter, concerned new — —delay much Office which after Attorney General’s September alleging in an administrative order resulted facility a sоlid-waste effectively operated had Towns 6605(a). § The V.S.A. certification violation site without consultant to hire an environmental order Towns required waste, remove the solid and plan, site-remediation develop a with fill. restore the site clean order, 3. The Environmental Court affirmed administrative the merits of reaching this Court.1 Without appealed Towns violation, judgment reversed the and remanded alleged and conclusions findings
the Environmental Court essential Natu Agency Towns’s defense. concerning statute-of-limitations Towns, 449, 454, ral A.2d Res. (Towns I). rejected the statute-of- Environmental Court remand, affirmed the subsequently claim on and we limitations Towns, 173 Vt. entirety. Agency in its Natural Res. v. judgment (Towns II). (2001) (mem.) 552, 557, ¶ 4. Towns was also proceeding, these matters were While providers, his engaged litigation with homeowner’s-insurance incurred in the cleanup for the defense and costs seeking coverage effort action. Towns’s initial underlying environmental-enforcement lawsuit, 1997, against in this in June Vermont regard was a filed had a homeowner’s which issued Company, Mutual Insurance after he occupied residence in Morrisville that Towns policy for a court entered June 1987. The trial sold the Johnson Mutual, rejecting in favor of Vermont summary judgment violation, Agency affirming to the the Environmental Court remanded While (ANR) section, clarify subsequently remediation of Natural Resources appeal. judgment purposes for the certified decision as a final ANR’s *5 claim that the somehow covered the and policy property, Johnson Co., 545, 545, we affirmed. v. Vt. Mut. Ins. Towns (1999) (mem.) (Towns III). 65, (discussed delay 5. After a of some more in Part period fully
IV, infra), then filed against Towns this action Northern for and costs on policy covering defense indemnification based a the Northern, property Johnson November 1983 June 1987. response, moved dismiss complaint, alleging the claims should have been raised in the earlier Vermont Mutual litigation and therefore judicata. were barred the doctrine of res The motion, trial court (Judge Martin denied presiding) finding a lack identity parties matter, between the and subject and noting particular that the case against Northern was based on “wholly a different contract” from one [insurance] at issue the earlier proceeding. parties then filed for cross-motions summary judgment, focused on principally duty to defend. Northern that coverage claimed was foreclosed aas matter of law exclusions, on the basis of several policy including the business- pursuits and owned-property Citing general prin- exclusions. ciple duty to defend duty is broader than the indemnify, (Judge the court Martin presiding) found that the facts alleged were sufficient to create potential for coverage, and thereby activate the contractual duty to defend. See City of Burlington Fire Nat’l Union 163 Vt. (1994) (“If
719, 721 any claims are potentially covered by the defend.”). policy, the duty insurer has a ¶ 6. а Following period of discovery additional briefing, and during groundwater which time contamination was discovered underlying the Johnson the court property, (Judge Katz presiding) issued decision adopting so-called trigger” “continuous theory, under damage which from continuous exposure to contami- during policy nants period is an “occurrence” sufficient to trigger coverage. expert Based on showing evidence continuous leakage of hazardous chemicals from the into debris the soil and groundwater underlying during pe- policy riod, the court concluded that the had In triggered. been decision, follow-up rejected the court also Northern’s claim that groundwater contamination must state exceed or federal enforce- ment to be standards considered under the policy and denied Towns’s motion to hold Northern responsible costs, all defense and applying indemnification instead rata pro on Based “time on risk.” party’s based each upon allocation calcu subsequently (Judge presiding) Toor ruling, court this 75% of the defense responsible lated that Towns was (based was that he self-insured costs time indemnity and Northern property) that he owned the to the period relation 25%.2 responsible for was followed, judgment motions summary A new round of 7. North- January Although in a decision
resulting written includ- grounds, on several claimed that barred ern provisions policy, owned-property promрt-notice ing ruled that the business- presiding) Teachout (Judge the court a matter law and did precluded coverage exclusion pursuits *6 court that Towns’s arguments. The found not address the other (the purposes filling personal, for nonbusiness use of debris lot) origi- because the debris leveling of his was immaterial — the trash” regardless from the and “[djumping nated business — ordinary part or “was an business.” purpose [the] of location duty that Northern no Accordingly, the trial court ruled owed law, final as a matter of and entered indemnify defend or Towns renewing appealed, for Both have judgment parties Northern. each of the various claims raised below.
I.
¶
stan-
summary judgment applying
same
8. We review
court,
if there
judgment
and will
such
uphold
dard as
trial
moving party
of material fact and
genuine
are no
issues
a matter
Fund Ins. Co.
judgment
entitled to
of law. Fireman’s
¶
93,
Co.,
8,
215,
251.
2004 VT
177 Vt.
862 A.2d
v. CNA
of an
contract
Similarly, the
of the terms
insurance
interpretation
law,
fact,
and our
is therefore
question
review
presents
Ins. Co. v.
and nondeferential.” Concord Gen. Mut.
“plenary,
Madore,
70,
9,
281,
2005 VT
178 Vt.
¶ 10. obviously While a context-specific inquiry, have also identified certain factors relevant to distinguishing business pursuits. Gambell, nonbusiness In for example, we observed that the acts or alleged omissions injury caused the in question did not “contribute to or further the interest of the insured’s “directly business” were not related to that busi ness,” and we therefore held the pursuits nonbusiness exception applied to afford under policy. the 166 atVt. 596, A.2d 454. 609 is This consistent with the approach taken by many See, courts country. across the e.g., U.S. Fire Co. v. Ins. (Ark. 1984) Reynolds, 664, (to 667 666 App. S.W.2d Ct. fall within 330 the rather than nonbusiness exclusion business-pursuits
the act “must be an liability rise to giving the act exception, pursuits business”); of, the to, interest furthers the contributes or (Ill. 641, Moore, 430 & v. N.E.2d Farm Fire Cas. Co. State 1981) (“If activity purpose not done for the is Ct. App. it is the exception.”); ... within the insured’s business expediting (Utah 389, (observing 709 P.2d Alsop, Ins. Exch. v. Fire “reasonably necessary liability activity giving if rise as business, regarded then it should be on of the carrying in the ” exclusion) omitted); (quotation pursuit’ of the ‘business part (“One 85, inquire is to approach WI Vandenberg, contributes to activity injury rise to giving whether the business.”). determining In whether furthers the interests of also we have exception applies, for nonbusiness pursuits “nar too question on the conduct against focusing cautioned its “viewed in isolation from because most tortious conduct rowly” ordinarily as incident categorized . . can be easily context . v. Peerless Luneau Vt. pursuits.” nonbusiness 447-48, (2000); see also N. Sec. Ins. Co. that, Perron, (holding business, daycare context of their the defendant viewed their contact supervising own children’s providers’ negligence a care characterized as properly other children in their was with safety premises of the -within business- failure ensure exception rather than an nonbusiness pursuits exclusion parents). all activity caring for their own children shared Analyzed light principles, these cases definitively that undisputed record evidence demonstrates excep- nonbusiness-pursuits here falls within the conduct issue and, noted, a over trash-hauling As Towns business operated tion. portion a many years, selectively deposited the course of his through material that he had obtained the business onto his house to make steep to fill and level bank behind family. Towns testified without it safer and more accessible his at his by depositing he did debris dispute money not save two of three landfills home rather than landfill because landfills) (the and Lamoille did regularly he used Johnson (the and the third during period question, charge fees landfill) never he owned. The residential Hardwick site others. disposal used
¶
that,
12. The
thus plainly
record
discloses
as the trial
found,
court
the
the
hauling
profit
initial
of
debris was for
noted,
out
a
unquestionably
pursuit.
“arose”
business
As
however,
does
end
inquiry,
this
not
the
for the nonbusiness
exception may nеvertheless restore
for
causally
activities
arising out of
designed
the business but not
to further
Gambell,
interests of the
See
business.
166 Vt. at
Here,
the evidence shows that Towns’s
diversion
some
— fill,
the material
solely
personal
to his
was
use
for
and improve
conduct,
level
his lot.
as
he testified without
objection, served no business
he
purpose;
gained no financial
advantage by using his own
a
property rather
than
landfill to
dispose of the debris
he
because
would not have
incurred
Indeed,
in
deposit charge
any event.
he
objection
testified without
that it
more expensive
was
divert
debris to his home than
to follow
Furthermore,
his usual business practice.
while most
may
homeowners
not have the
disposal,
same means
their
—
discern nothing
ordinary
out of the
particularly during
—
(the
1970s)
in
period
question
here
in
activity
began
early
landowners
a small rural
employ
state to
their own efforts
deposit
obtain and
fill for
improvement
of their property.
Indeed, the record shows that
subsequent purchasers
Johnson property
initially
were
Attorney
informed
Gener
al’s Office “that such
dumping
a common
occurrence
I,
Vermont.” Towns
¶ 13. In reaching conclusion, a contrary dissenting our colleague asserts that the “prolonged . . duration . and the overall amount any activity material exceeds that can be characterized Post, an ordinary personal use.” 44. Yet the dissent offers no guidance explanation or as to precisely long how how or much filling “activity” may be characterized as for personal “normal” “normal” activity must be said exceed point such use at what the “industrial nature” of the asserts that use. The dissent also use, again offers post, but personal its precludes material argument, its support conclusion. To no rationale this virtually *9 decision, the case is not but relies on one out-of-state the dissent Co., 616 N.YS.2d v. Continental Insurance In Velleman point. on 1994), decision, the court ruled that the a trial court Ct. (Sup. delivery exception did not when a UPS nonbusiness-pursuits apply to the insured’s injured delivering package while a person was in a unit attached to his conducted separate which he business argument that UPS rejected The the insured’s residence. court use,” to that “ordinarily noting incident residential deliveries are and the insured delivery was to the insured’s businеss that the along par- a commercial deliverers a sign directing had “placed activities in the “[s]uch ticular and thus concluded that path,” delivery ordinarily a commercial can not be considered context of Id. 148-49. In that pursuits.” language to nonbusiness at incident the court further appears supportive, the to construe as dissent are frequent deliveries/pickups that and UPS “regular observed Id. 149. occurring not at a residence.” at ordinarily usual activities regular frequent and commercial deliveries conclusion adjacent a to the insured’s residence is business conducted of fill deposits exclusively equivalent regular somehow Indeed, from obvious. with we find the personal respect, use far entirely case inapposite.
¶ two 14. The dissent relies on additional out-of-state cases use of fill “not support personal the assertion Towns’s the did activity essentially an which was business related into transform Post, ordinarily (quot one pursuits.” incident nonbusiness Stinnett, ing Farm Fire & Cas. Co. v. N.E.2d State (Ill. 1979)). Stinnett, In the evidence showed that “all of Ct. App. the locality along the mowed the weeds roads farmers reducing and keep spreading order to them from into fields Hence, found that their 389 N.E.2d at court yields.” firmly as a mowing was therefore established business “[s]uch easily rejected makeweight argument and activity,” farm nice” “look[] incidental aesthetic benefit of making brought nonbusiness-pursuits exception. into the Id. mowing Here, of fill on deposit the evidence showed that 669-70. business-related,” “essentially not but done property noted, derived no commercial solely for benefit. As Towns personal cheaper which have been and dumping, benefit would in the landfills at no easier available cost. 15. Nor does Dealers Mutual Insurance Co. Grain (10th
Farmers Alliance Mutual Insurance
Vt. as is the fact that an no other advantage. Equally misplaced business-related on is the dissent’s reliance the fact deposited yard that the Towns “obtained material he in his he sites
II.
¶
exclu
owned-property
policy’s
relies on the
16. Northern also
not
that
does
provides
coverage
standard exclusion
sion. This
the
or to
by
insured”
property
“to
owned
apply
or in
care of the
to,
by
or used
the
occupied
“rented
property
contamination
acknowledges
groundwater
Northern
insured.”
under
property,
by the debris has been discovered
caused
has
no evidence
exclusion
because
applies
the
argues
but
has
the
contamination
groundwater
showing
adduced
been
has been
no off-site remediation
beyond
property,
spread
by ANR.4
by
required
experts
recommended
considered
17.
courts and commentators have
Numerous
recovery
forecloses
exclusion
owned-property
whether
in
employed
measures
environmental-response
costs
entirely
not
Although their conclusions are
property.
sured’s
is allowed
uniform,
the vast
have
majority
concluded
incurred in
with the insured’s
connection
expenses
for remediation
necessary
prevent
injury
property
further
when
court has
summarized:
cogently
others. As one
owned
mi-
have
In cases where environmental contaminants
adjacent
from a
grated
policyholder’s
agreed
the owned
property,
generally
courts
of all
does
relieve
insurer
property exclusion
cleanup
costs incurred
of the
liability
response
if
is not barred
policyholder’s
property; coverage
own
Post,
though
dispositive
As
up,”
this
of the
to clean
as
were
issue.
contracted
clear,
causally
activity
out of
make
fact that an
related or arose
the cases
given
pursuits
context of the
the insured’s business
is a
nonbusiness
Gambell,
question
аt 454. The
is whether
See
exclusion.
context,
activity,
essentially
specific
further
was undertaken
viewed
and,
insured,
personal
interests of
discussed
interests
business or
above,
plainly the
the answer here was
latter.
*11
issue,
ruling
coverage
Although
trial
was
court did not reach this
exclusion,
business-pursuits
raised
precluded
the issue was
on
basis of
Furthermore,
explained
fully
appeal.
and has been
briefed on
below
follows,
any
does
turn on the resolution of
material
which
the issue
not
discussion
judicial economy,
Accordingly,
we deem it
disputed facts.
in the interest of
¶ 12,
Ellinwood,
88,
appropriate to
the issue. See
v.
2007 VT
address
Cardiff
(mem.)
(reaching
in the
not decided
trial court
held that
where groundwater is considered to
public
be a
resource or trust of the state
than privately
rather
—
owned
the owned-property exclusion does not bar coverage of
the costs incurred to clean
up
abate environmental pollution
on the
insured’s
when it has contaminated the ground
cases,
water
In
below.
such
is considered to be to
insured,
owned
and therefore within the
exception allowing coverage for the
remediating
costs of
contamination,
source
if
even
located entirely within the
insured’s
In
property.
Olds-Olympic, Inc.
Commercial Union
(Wash. 1996),
Insurance
Indem. was dam- property of under insured’s groundwater contamination under California law by others because age owned property people is of the of property within the State water “[a]ll & omitted)); v. Fid. Plating Ala. Co. U.S. Guar. state” (quotation (Ala. 1996) 331, that the Co., (adopting principle 690 2d So. 336-37 for the coverage does not exclude “‘owned exclusion property’ contamination”); S. remediating groundwater costs of Norfolk (La. 167, Co., App. 859 2d 193-95 Ct. v. Ins. So. Corp. Cal. Union 2003) not remediation ef- exclusion did exclude (owned-property in- groundwater of contamination on up forts clean source N.Y., N. v. Fid. Co. Power Co. & Cas. property); sured’s States of 1993) (Minn. 240, (holding 246 owned- App. Ct. N.W.2d necessary coverage expenses not bar property exclusion did insured’s contaminating groundwater prop- clean under soil up Reliance Ins. v. property); is state Co. erty groundwater because (N.J. Indus., Inc., Super. Armstrong World 1996) coverage of costs incurred to App. (holding Ct. Div. not causing groundwater clean contamination was up pollution exclusion); v. N.Y. Cent. Mut. Fire owned-property barred State by 1989) Div. (App. (holding 542 N.Y.S.2d to third spill damage party oil insured’s had caused property by it which wаs held the state groundwater,” when “entered Peters, for the Robert E. Lee & Assocs. people); as trustee (Wis. App. of (holding N.W.2d Ct. site cleanup pollution causing groundwater costs for on insured’s by owned-property is not exclusion because contamination barred public property contamination is rather “[g]roundwater individual”); Annis, E. by than owned see generally Custody and Care and Control Exclusions Property Owned of L. Policy, General 28 Gonz. Rev. Comprehensive Liability (1993) (“In surface jurisdictions ground where the waters public, by [owned- are deemed owned State or prevent Whitney, not R. property] coverage.”); exclusion does Application Environmental Contamination and the Owned Coverage Claims: Can the Property Exclusion to Insurance Real?, 27 N. Property Threat Harm to the Others Ever Get (“Where or Ky. groundwater L. Rev. surface public, by owned the state waters are deemed to be itself, that the exclusion does courts have found owned prevent coverage remediation of environmental contamina- waters.”). tion those noted, undisputed As it here that groundwater
contamination deposited debris Towns has been states, his property. discovered beneath former As many however, groundwater subject Vermont is not to private own Under ership. Act, the Vermont Groundwater it is Protection express “policy of state that the common-law doctrine of absolute ownership groundwater is . . . аbolished.” 10 V.S.A. 1410(a)(5). § therefore, with weight authority, Consistent *13 that groundwater conclude the contamination identified this case is not to property “owned” Towns within the exclusion, the scope of owned-property and that the costs incurred to monitor up and clean pollution causing contamination are therefore not excluded coverage. sure, recognize, We to be that the Act also declares
groundwater to be a mobile “necessarily resource among shared users,” 1410(a)(3), all § id. in which “all persons right have a to the beneficial enjoyment use and . . . free from unreasonable 1410(a)(4). interference by persons,” § other id. not We are persuaded, however, that this right creates an ownership interest sufficient to trigger owned-property exclusion. See U.S. Aviex Co., (Mich. Co. v. 838, Travelers Ins. 336 N.W.2d App. 843-44 Ct. 1983) (limited right to “reasonable use” of groundwater and to be free from with right interference such does not trigger owned-property omitted)); exclusion (quotation United v. States (W.D. Co., 1986) Conservation Chem. Supp. 653 F. Mo. (applying Missouri law to hold that the to right beneficial use of groundwater is not a property interest within the owned-property exclusion); Morrone v. Harleysville Mut. Ins. 662 A.2d (N.J. Super. Ct. App. (rejecting Div. argument that a right to “beneficial of groundwater use” represents a proprietary interest sufficient to invoke the exclu owned-property sion). asserts, Nor are we persuaded, as Northern that the related exclusion “care of’ applies the insured groundwater. context, Read this “damage exclusion for to, property rented occupied or used or of care implies degree insured” a custody and control over the prop erty inconsistent with character of groundwater Vermont as public minimum, At a resource. the “care of’ exclusion is clearly include be said to that it cannot sufficiently ambiguous Burlington City See property. resource beneath one’s public Servs., 364, 751 Ltd., Vt. & Gas Ins. Associated Elec. insurance-policy general rule (citing in favor of narrowly and construed strictly to be exclusions are that, than Morrone, “other insured); (holding 662 A.2d at water, certainly is not [groundwater] potable being source control of a owner” custody to the susceptible category property’ of ‘owned clearly not fall within the “does exclusion”). find we no basis Accordingly, purposes of law the owned-property as a matter of under exclude exclusion.
¶21. also argument, In a related Northern asserts “property damage” not under groundwater contamination is state or federal it reaches levels exceed policy unless water. regulations governing drinking safe clean-water laws property damage here contains a standard definition tangible property.” to or While “physical injury destruction guidance meaning no as to policy provides additional necessary or the of harm constitute “physical injury” level provision a similar “injury,” interpreted at least one court has “damaged” unless the contamination groundwater hold standards. environmental-protection exceeds state or federal (N.J. Wausau, Employers Muralo Co. v. Ins. of 2000). however, that Ct. Div. We are not Super. App. persuaded, law, this with Vermont which approach requires is consistent *14 meaning plain, ordinary be accorded its consistent language insured, and expectations terms with reasonable broadly or in favor of ambiguous that are unclear be construed coverage. Salvage, & Inc. v. Acadia Ins. Recycling Hardwick VT Vt. ¶22. First, matter, dispute as a there is no here that factual deposited chemicals from the waste and debris Towns result- groundwater property, leached into the beneath his former in in excess of certain enforcement standards of ing contamination re- the Vermont Quality site-investigation Water Standards. in to the administrative order port response commissioned State’s in ruling and the Environmental sets forth considerable Court of the environmental consultant’s independent detail results analysis groundwater. Under the section sampling and Results,” the Analytical report entitled states “Groundwater (shafts groundwater samples “piezometers” from two the three depths sunk to sufficient to retrieve at groundwater samples) site “reveal levels iron at abоve Secondary Standards” and [or] “levels of manganese Primary above both Enforcement [or] Levels Primary Standard and Preventive Action Levels.” The on report goes to observe: two test sites are within eighty respectively drinking-water- feet of an on-site well; that supply exposure high manganese continued levels of may variety ailments; physical result serious and emotional and that this health risk militates in favor of all of removing on-site solid waste rather than or simply closing capping the Expert landfill. hydrologists retained both Northern and Towns opinions submitted data in report. based ¶23. policy language While the may provide issue here no clear measure to when “damage” “injury” determine — groundwater occurred, has we do believe that in light of — such any evidence person reasonable could dispute Indeed, standard met or here. exceeded although Northern’s expert hydrologist inaccurately described report as finding manganese “at groundwater levels that exceeded Vermont’s (as secondary noted, enforcement standards” the report found levels of the primary chemical excess of enforcement stan dards), to acknowledge even this is contamination in excess of Nor, view, enforcement standards. in our is there any doubt that costs incurred to contamination, monitor and remediate specifically with compliance government order finding а to public risk health and fall safety, within the understanding normal expectations reasonable of an reading damage insured section Hardwick, in question. See 2004 VT 43 (construing similar property-damage provision to hold government action to cleanup recover from discharge costs of hazardous materials on insured’s “fit within an expectation insured’s reasonable be”). to what property damage so defined would Accordingly, no find basis to exclude on this ground. ¶ 24. matter, however, Our conclusion does not end the factual questions remain as which remediation costs were prevent incurred to further damage to third-party property within scope coverage, and which were incurred solely to remedy insured’s within the owned-property exclusion, and whether as a matter practical the two can be separated this case. See Intel Corp., F.2d at 1565-66 *15 Hakim, issue); fact this to address (remanding case for trier Annis, (same); supra, see generally at 1165-66 675 N.E.2d to further incurred expenses prevent even are (noting when necessarily “it does not third-party property, to contamination “[a]ny are covered” expenses that all of the remediation follow improv- relate expenses solely which portion of the remediation property are excluded owned property the insured’s ing exclusion.”). this the trial court is directed to address Accordingly, on remand. factual issue
III.
¶25.
сlaims,
cross-appeal
In
Northern asserts
related
continuous-trigger
in adopting
trial court erred
the so-called
result-
there was an “occurrence”
standard to determine whether
turn,
In
Towns contends
damage
policy.
under
ing
standard,
erred
that,
the court
continuous-trigger
applying
allocating
indemnity
defense and
costs between Northern
and commentators
considered
Numerous courts
Towns.
necessary
under a standard “occurrence”
what
is
question
here,
trigger coverage
for
policy, like
one
issue
is con-
damage resulting from environmental contamination
through
policy
successive
progressively deteriorating
tinuous or
Admiral
Corp.
Montrose
Cal v.
periods.
generally
See
Chem.
(Cal.
(outlining
893-95
various
913 P.2d
poli-
applicable
theories
occurrence-based
“trigger”
potentially
Bellmawr,
cies);
Borough
also
Mut. Fire Ins. Co. v.
Quincy
see
(N.J. 2002);
Fischer,
Coverage
J.
Insurance
503-10
Exposure
Appropriate
Mass
Tort Claims: The Debate Over the
for
(1997); McMahon,
M.
Event
Trigger, 45 Drake L. Rev.
Within
Liability
Coverage
Occurring
Insurance
Triggering
Policy Where
by Liability
Period
Time Covered
Insurance
Cases, 14
Injury
Damage
Delayed
is
A.L.R.5th
—Modem
cases).
(collecting
rejected
The trial
what
proposal
apply
court
Northern’s
trigger,
requires
known in the trade as a “manifestation”
which
is
damage
discovered or manifested
environmental
be
a standard that would result in a denial
during
policy period,
well
here
the contamination was discovered
because
Fischer,
at 644
expired.
supra,
See
policy
after
Northern
(under
theory,
“when
triggered
the manifestation
claimant”).
As
reasonably apparent or known
injury became
noted,
theory,
court
instead
opted
continuous-trigger
recognizes coverage
which
environmental
that occurs
*16
continuously
exposure
from the date of
or initial injury through
policy periods
successive
even if the
is not manifested
damage
Montrose,
policy
expired.
until after the
has
See
¶ 27. As the trial court recognized, continuous-trigger here the gained widespread acceptance test has among courts across the as the country approach compatible most with the standard occurrence-based and the policy expectations reasonable of the involving insured cases long-term damage. environmental See Montrose, 913 P.2d 896-902 (reviewing observing cases and weight “the of more recent authorities” supports application continuous-trigger test to determine coverage result- damage or ing progressive exposure from continuоus the injury-inducing condition); Franklin, 35, Ins. v. Soc’y 8, Town 2000 WI App 607 342 (reviewing N.W.2d case law and concluding that “[t]he majority of courts that have considered the issue have adopted theory”); continuous trigger Bratspies, R. Splitting Baby: Apportioning Environmental Liability Among Triggered Insur- Policies, (“A ance 1999 BYU L. Rev. 1230 growing majority of courts facing coverage insurance questions for envi- long-tail injuries ronmental a adopted trigger’ ‘continuous of liabil- — ity.”); Developments see also Law Toxic Litiga- Waste tion, (1987) (“The Harv. 99 L. Rev. 1581 rule standard property damage caused by hazardous waste has been that continuous, extending occurrence from disposal manifestation damage.”). ¶28. Like most the standard occurrence-based policies at decisions, issue in these the Northern here policy provides among the stated of coverage “conditions” that it applies only to bodily or injury property damage during “which occurs the policy added.) period.” (Emphasis The policy contains no other conditions Cos., v. 318, 332, State CNA Insurance (2001), In A.2d applied theory noted that trial court there continuous-trigger had also preserved environmental contamination but that issue had not been for review appeal. or damage also be discovered stating that such must language or led courts many This had during policy period. manifested occur- any damage to conclude that construing language similar period triggers coverage, regardless during policy ring See, Montrose, P.2d reported. e.g., or when it discovered nothing the standard occurrence- (observing . coverage . . that “condition policy imposes based any point in time” particular or be discovered at damage injury in- policy occurrence-based “was holding the standard damage injury resulting provide tended to when occurs during to conditions’ ‘injurious exposure an accident or Co., 610 Mut. County policy period”); Harford Harford (Md. 1992) in the (observing “[njothing . . . that the claimed language policies requires during actually discovered or manifested be trial court erred holding applying period” from environmental trigger damage resulting manifestation *17 Co., contamination); v. Commercial Union Ins. Trs. Univ. of Tufts (Mass. 1993) trigger 616 N.E.2d 74 manifestation (rejecting “[njothing in the lan- environmental-contamination case where requires damage the that the claimed guage policies of the during period.”). or policy be discovered manifested recognized, 29. As and other courts have to conclude these the typically expensive would effect transform more otherwise a form cheaper policy, into a claims-made policy occurrence-based to limit the risk coverage designed of insurer’s specifically to made the restricting coverage during policy period claims Montrose, regard injury.” to the the or timing damage “without (“[Tjo trigger coverage P.2d at a manifеstation apply 903-04 policies effectively Admiral’s . . . would be to to occurrence-based ,. the transforming rewrite Admiral’s contracts of insurance . . . . . into a expensive policy broader more occurrence-based v. Coop. claims made see also Farmers Elevator Co. policy.”); Kief (N.D. 1995) (observ- Co., Farmland Mut. Ins. 534 N.W.2d to limit ... ing coverage “designed claims-made “interpreting policy risk” and that an ‘occurrence’ carrier’s only injury when the or becomes provide coverage damage the more policy period unfairly manifest transforms during ‘claims policy cheaper policy”); ‘occurrence’ into made’ expensive (Haw. v. P.2d accord Sentinel Ins. Co. First 1994); County, 610 A.2d 295. Harford
¶ 30.
have
adopting
continuous-trigger
Courts
test
also
language
policy
relied on
the standard occurrence-based
cover-
or
ing damage
injury
repeated exposure”
from “continuous
From
injury-causing
provision
same
conditions.
this
and the
it,
history
clear
drafting
underlying
courts have inferred a
aware-
ness
drafters
result from
coverage may
circumstances
here,
like
where
presented
damage
those
is not linked to a
single event but rather
long-term
exposure
and continuous
Montrose,
progressively deteriorating
material.
hazardous
See
892-93,
(reviewing
P.2d at
902-03
the historical
development
policy
concluding
standard occurrence-based
drafters’
inclusion
exposure” language
they
“continuous
shows that
plainly
“occurrence”
damage
exposure
understood
to include
from
policy period);
hazardous material within the
EnergyNorth
Gas,
Natural
Inc.
Lloyd’s,
v. Underwriters at
(N.H. 2004)
(concluding
“drafting history” underlying
adoption of the
supports
standard occurrence
adoption
test).
the continuous-trigger
Although
appears
similar
language
of liability”
“limits
rather than the definitions section of the
Northern
policy,
implication
damage
resulting
from continuous exposure to a progressively deteriorating condi-
tion
during
policy period is no
implicit.
less
Thus, in
the common circumstance where hazardous
progressively migrate
chemicals
the surrounding
into
soil and
groundwater
underlying
insured’s
numerous
property,
courts
applied
continuous-trigger
test
to hold each of the
insurers on successive policies liable for the resulting environmen
tal
point
exposure
initial
or contamination
See,
through to the last triggered policy.
e.g.,
County
New Castle
(CNA),
(D.
v.
Cont’l Cas. Co.
725 F.
Del.
Supp.
(concluding
pollution
leachate
injurious
case
“entire
process may
‘injury’
constitute
under
policies”),
the terms of the
nom.,
rev’d in
on other
part
grounds sub
New
County
Castle
*18
(3d
Co.,
1991);
Acc. & Indem.
expert to six within one begins generally in the ground placed material lasting several constituents initial “burst” of an months with of contamination “steady state” months, relatively aby followed Furthermore, in place. material remains as as the lasting long and of waste placement that dispute without Towns testified that he the time “ongoing” during his debris on that no doubt leaving home from 1972 occupied surrounding soil into the the material leached chemicals from 1982 to June from November during period groundwater Thus, the trial court in effect. policy was when the Northern “occurrence” was damage-producing correctly determined coverage.6 trigger period sufficient during present court applied the trial agrees Towns Although apportion decision to subsequent its trigger, challenges he correct indemnity to of defense and the total costs only percentage applied different have identified and recognize and commentators We that courts theory. continuous-trigger setting Some capable off the triggering events initial exposure of the from the initial damage-producing occurrence have measured See, e.g., Tank Chem. Leaman hazardous material. groundwater to the soil or (3d (applying Co., New Lines, 89 F.3d Cir. Inc. v. Aetna Cas. & Sur. theory, exposure trigger to the Jersey the continuous “[u]nder law to hold coverage”). have held trigger potential Others causing agent is sufficient harm “injury-in-fact,” the first evidence of trigger be the date of the initial should Builders, See, e.g., Inc. v. Aetna Cas. exposure. Joe Harden opposed to mere as (S.C. 1997) “coverage triggered at (holding & Sur. 486 S.E.2d continuously coverage under to allow injury-in-fact and thereafter the time of during progressive injury-in-fact policies in from the time of all effect particular resolve this presented here we need not damage”). the facts Under injury-in-fact exposure issue, no doubt that both the evidence leaves policy was in effect. the Northern occurred while
345 Northern, based on the so-called allocation “time-on-the-risk” continuous-trigger method. Courts must often applying test how to apportion coverage among multiple determine insurers who policies issued successive the risk. principal Two methods have been allocating joint-and-several identified for One is coverage. in which liability, “any any on the risk for of the policy portion period which the insured property damage bodily sustained injury jointly severally full, is obligated respond in up limits, policy Hurwitz, its for loss.” T. Jones & J. An Introduction to Insurance Allocation Issues in Multiple-Trigger Cases, 25, (1999). Vill. 10 Envtl. L.J. The other method is risk,” “pro-ration years” or “time on the in which “each policy triggered bears a share of the total damages proportionate risk, to the it years number of was on the relative to the total years number of Id. triggered coverage.” at 42.
¶ Many courts and commentators have concluded that the “time on the allocating risk” method of loss to each insurer proportionate to damage during suffered its term policy’s most consistent with the rule continuous-trigger and the standard provision occurrence-based policy limiting coverage damages occurring during See, term policy on which it is e.g., based. Spartan Co., 805, Petroleum Co. v. Federated Mut. Ins. 162 F.3d (4th 1998) 812 Cir. (concluding “[p]ro liability rata is the ” ‘logical corollary’ injury-in-fact-trigger rule “because that trigger hinges on the language that the . . . policy only covers . damages . . during policy period” (quotation omitted)); Pub. Cos., (Colo. 1999) (where Serv. v.Co. Wallis & 986 P.2d 940 continuous-trigger rule applies, courts “should make a reasonable estimate of the portion of ‘occurrence’ that is attribut fairly able to each” policy-year using pro method); rata Outboard Corp. Co., (Ill. Marine Mut. Liberty 670 N.E.2d 1996) App. joint-and-several Ct. (rejecting allocation of environ mental-cleanup costs in of pro favor rata allocation to insurers and policyholder assumed); on the of the basis risks Arco Indus. Corp. (Mich. Co., 1998) v. Am. Motorists Ins. App. N.W.2d Ct. (time-on-the-risk “logical corollary” allocation method is the of policy providing occurrence for during sustained policy but period, years outside the policy period); Gas, EnergyNorth Natural Inc. v. Certain Underwriters (N.H. 2007) Lloyd’s, 934 A.2d (finding “pro rata allocation joint be superior and several allocation it is because more rule continuous-trigger the occurrence-based with consistent” v. Allstate Ins. parties); Consol. Edison Co. the expectations (N.Y. in environmental (holding 774 N.E.2d is consistent rata allocation ... “[p]ro contamination case which indemnification language policies” “provide with occurrence of an accident or liability incurred as a result generally see period, period”); not outside during Hurwitz, “courts supra, (noting adopting Jones & ‘occurrence,’ that the definitions of pro-ration by years recognize *20 ” of damage’ militate favor an injury’ ‘property and ‘bodily term). to the proportionate policy of loss allocation ¶ recognized and commentators have also 35. Courts advantages, including method policy time-on-the-risk offers several carriers, easily to maximum of spreading the risk number liability through relatively simple each identifying insurer’s calculation, necessity for indemnifi- reducing subsequent and Corp. among cation actions between and the insurers. See Olin v. (2d 2000) Am., N. 221 323 (observing Ins. F.3d Cir. Co. of “avoids among multiple triggered policies saddling that allocation loss, one the full of bringing [and] insurer with burden action”); Hurwitz, & supra, contribution Jones 42-43 subsequent (courts simple that a calculation based on time have “reasoned] allocating on the risk is the most and efficient means of equitable Comment, obligations”); Doherty, indemnification see also M. Liability Allocating Progressive Injury Among Successive Insur- Policies, (advocating ance 64 U. L. Rev. 281 Chi. application of the method its inherent time-on-the-risk “because litigate, reduces simplicity promotes predictability, incentives rates”). and reduces ultimately premium liability with principle 36. Consistent an insurer’s for resulting long-term exposure injury-producing from damages pollutants proportion conditions such as environmental should be risk, many ate time on the courts have held that it to its also to allocate the costs of and the appropriate both indemnification arising costs from such defending long-term claims conditions. See, Metallurgical Corp. Chem. & v. Assoc. Metals & e.g., Gulf (5th 1993) 1 F.3d (reasoning Cir. Corp., Minerals costs for occur pay insurer has contracted defense “[t]he place took and therefore period” rences which outside and reject joint-and-several liability Texas law instead applying pro costs on a rata apportion among multiple defense insurers
347
basis);
Sepco
Ins.
F.2d
Corp.,
Commercial Union
Co. v.
(11th
1990)
Cir.
insurer
(declining
responsible
to hold
“to
provide
exposure unquestionably
defense for
outside of its cover-
therefore
age”
upholding
pro
and
trial court’s
rata apportionment
costs);
Insulations,
of defense
N. Am.
Forty-Eight
Co.
(6th
Inc.,
F.2d
(holding
Cir.
that as “indem-
can
nity
years
exposure]”
costs
be allocated
the number of
[of
why
theory
is no reason
this
not apply
“[t]here
same
should
costs”);
Hurwitz,
to defense
see
&
generally Jones
supra,
that “the
(observing
commonly
allocation
defense costs is
based
theory
the same
as the allocation
indemnity obligations”
so
that “defense costs are allocated
all
triggered policies
risk”).
proportion to each policy’s time on the
Furthermore,
the policyholder
where
is self-insured for
risk,
any period
time on the
many courts have concluded that
it is
fair
equally
and reasonable to
the policyholder respon-
hold
sible
portion
for that
of the total
and indemnity
defense
costs over
See,
which he or she chose to assume the risk.
e.g.,
Corp.,
Olin
(“Allocation
at 323
F.3d
also
forces
insured to absorb the
periods
losses
it
when
prevent
self-insured
can
it from
benefitting
injuries
place
that took
when it was
premiums.”);
Petroleum,
no
paying
Spartan
at 812
F.3d
(holding that
for any
period
progressive
when no
risk,
insurer was on the
the insured
reasonably
should
bear the
loss, “otherwise
*21
would be to
[it]
make
insurer
liable for
damages
occurred when it
on
risk”);
was not
Stonewall
(2d
Ins. Co.
Mgmt.
v. Asbestos Claims
Corp.,
1178,
73 F.3d
1203
(“[P]roration-to-the-insured
1995)
Cir.
a
adjust
sensible
toway
the competing
of
in
parties
contentions
of
context
con-
tinuous triggering
multiple
of
policies over an
span
extended
of
years.”);
Chem.,
IV. ¶ claims no extended remaining require 39. Northern’s two First, its claim that the court erred Northern renews discussion. judicata. in on the of res It its motion tо dismiss basis denying been in Towns’s earlier that the claims should have raised asserts recall, action, in To Towns had Vermont Mutual. against suit a Vermont attempted to obtain under unsuccessfully that he owned and covering the home Morrisville policy Mutual in 1987. We affirmed selling after the Johnson occupied Mutual, in favor of summary judgment rejecting Vermont policy claim that Vermont Mutual somehow covered III, the insured. 169 Vt. at “formerly owned” Towns 545, 726 A.2d at matter, parties, subject that the 40. Northern asserts litigation of action in the Vermont Mutual were
and causes here, claims it should any against identical to those and that have and tried in the earlier and are therefore proceeding been raised Dev., Ball, 466, Inc. Cold Farm v. 163 Vt. Springs barred. See (1995) (“Claim litigation bars preclusion 661 A.2d were or might properly claims or causes action which action.”); Ctr., Berlin previous been Convalescent Inc. litigated (Res Stoneman, 53, 56, judicata v. if exists a litigation a claim or defense there final “bars subject the parties, former which matter judgment litigation action or substantially and causes of are identical identical.” omitted)). (quotation unpersuasive. assuming, 41. This Even contention is as claims, that with as privity
Northern it was Vermont Mutual subject the two wholly subsidiary, owned matter of suits interpretation application entirely involves the of two different cannot, by policies, judgment any insurance and the to one reasoning, binding stretch of be as to other. See State Life 1934) (where Goodrum, (Ark. 74 S.W.2d Ins. Co. policies issued two life insurance for decedent ob insurer in proceeding involving policy, tained the first court judgment judicata res to bar action on the second apply would basis and foundation these suits were the “[t]he because insured”); upon contracts of insurance life of the respective (Mo. Haake, Ins. Co. v. S.W.2d Ct. Peoples-Home Life *22 in of life insur- (rejecting judgment claim that favor App. judicata subsequent involving case company anee was res as to in policy another issued favor of the same decedent where the policy company second was issued a different and the action insurance”). “upon separate turned a distinct policy Accordingly, judicata apply. res does not
¶ 42. Finally, any Northern contends that Towns forfeited cov- erage by comply with the failing policy’s prompt-notice require- Inc., 355, ment. See Ass’n Coop. Caps, Fire Ins. v. White 166 Vt. (1997) 356, 694 A.2d insurer (citing may rule be obligations relieved from contractual if prompt- insured violates that, requirement). policy notice The in provides here the event of occurrence, provide an accident or the insured must written notice agent insurer or its “as practicable soon as which sets (1) forth: of the insured.” identity policy and The record that, discloses after shortly receiving the State’s administrative order October Towns (through attorney) his sent a letter his insurance him agent notifying of the State’s enforcement action, he “all requesting notify applicable turn carriers 1978,” from his current back carrier demanding “that such provide carriers” against a defense claim. letter did not specifically identify any particular policy homeowner’s or carrier. thereafter, Shortly attorney Towns’s received a response from Mutual, Vermont insurer of his property, Morrisville acknowl- edging receipt of notice and the then in effect policy for the residence, Morrisville but stating that it had not been able to any locate policy covering the property apart Johnson from an application coverage provided by the agent. Nearly years five later, parties October stipulated existence of Northern effect Johnson from Novem- ber 1983 to June 1987. issue, court The trial did not reach late-notice
and we decline here. Apart to do so from the unresolved questions to whether as letter substantially complied with the contractual-notice requirement notwithstanding its failure to set forth “the identity policy,” and whether such notice a precondition coverage, resolution of the issue may also turn fact-specific question whether prejudiced Northern was Fire, result of the omission. See Coop. Vt. at A.2d at 35 that insurer (holding prove must it was prejudiced by delayed it may notice before be relieved contractual duties); Sch., 396, 404-05, Putney Schaaf, Inc. “substan- rule (noting general Vermont *23 suffice”). Accordingly, will requirements with notice compliance tial issue remaining is directed to address this the trial court remand. and the case part, reversed in part, is judgment The affirmed expressed consistent with the views proceedings
remanded further herein.
¶ Reiber, C.J., majority’s I from the dissenting. dissent large on his disposing that Towns’s action of conclusion through procured construction and demolition debris amounts of ordinarily homeownership to activity his is an incident business business-pursuits exclusion his excepted from the and therefore of Towns’s prolonged insurance The duration policy. homeowner’s amount and the overall type deposited, materials disposal, be characterized as any activity material exceeds can I affirm the trial court’s decision ordinary personal an use. would exclusion, exception, applies, business-pursuits but not the coverage. that there no and therefore is majority, homeowner’s insur- 45. As described Towns’s damage “arising for property ance contained an exclusion This exclusion was limited an pursuits.” out of business to ordinarily are incident non- for “activities which exception allows insur- business-pursuits exclusion pursuits.” business separate to the risks associated with business and providers ance to levels for personal keep premium activities and therefore L. Russ & T. at a reasonable level. 9A policies homeownеr’s (3d 128:12, at § on Insurance 128-30 to ed. Segalla, Couch 2006); 432, v. Farm Fire & Cas. 656 N.W.2d see Smith State (Minn. App. (explaining business-pursuits Ct. that is not essential to homeowners exclusion deletes level). aat reasonable keep premiums ¶46. exception restore pursuits operates non-business “[T]he some fact arise out of insured’s coverage for activities 128:23, § Segalla, supra, 9A & 128-50. pursuits.” business Russ In that the provisions, explained excep- such construing activities “are applies tion to the exclusion when insured’s Ins. Co. pursuits.” or her Vt. Mut. usual to his nonbusiness (mem.). Gambell, “For 166 Vt. act that it must be an is activity pursuit, to be business one that the to the of the business and solely referable conduct Thus, normally pursue insured would not but for business.” Id. purchasers expect coverage activity, although can when an con- business, to the ordinarily nected insured’s incident Woods, Concord pursuit. nonbusiness See Gen. Mut. Co. v. ¶¶ 13-14, 2003 VT A.2d 572 (explaining expectations parties important interpreting are contract). exclusions an insurance exclusion, 47. In applying majority concludes that the hauling part initial of the debris was for profit business, subject and was to the business-pursuits thus exclusion. however, agree. I The majority, further concludes that Towns’s activities fall nonbusiness-pursuits within the exception to exclusion for two main reasons: because it was ordinary at time for in a small such landowners rural state Vermont fill on their deposit property; any and because Towns did not save money by оpposed fill on his depositing property as to at a proper *24 disposal waste site. I find neither convincing. reason ¶ 48. be true Although may it that at times deposit landowners fill on their the of property, type the material Towns deposited the and amount of fill he used preclude any that his finding endeavor was an ordinary personal activity.7 deposited Towns — on significant debris his a of property period time from to 1987. The total amount of was at material least 4000 cubic yards. The deposited items Towns were construction and demoli tion debris he through obtained his waste-hauling business. Far support In ordinary, of its majority assertion that Towns’s actions were the relies opinion Attorney on information recited in earlier our that the General’s Office initially purchasers property dumping told the of Towns’s was a common Towns, Agency 449, 450, occurrence Vermont. Natural Res. v. 168 Vt. of (1998). supports majority’s I fail to see how this comment the prolonged disposal conclusion that Towns’s of construction materials on his ordinary was an dumping action. The of characterization as a “common employee Attorney occurrence” was made at the General’s on Office based description provided purchaser, a know who did not the extent of fill fill, anyone or the nature of Attorney and before from the General’s Office actually inspected property. explained previоus opinion, Towns’s As our Attorney purchaser, General’s told Office also based on the she information provided, covered, that “the State not take fill would action because the was was road, leaching not visible from inspection and was not Id. into water.” Once an occur, actually did type and the had state information about and amount site, deposited Thus, material Towns his on the state action. did take there no is that, disposal, evidence once the state understood the nature extent and of Towns’s disposal “ordinary.” the state characterized this as included, things, other among “fill,” items these ordinary from concrete, insulation, work, fiberglass lumber, duct metal scrap machine, refrigera and dryer, washing roofing, shingles, metal a solid to be by the state fact, was deemed the Towns site In tor. during permit, requiring regulation, facility subject waste ¶ fact Ante, ignoring 2. Even operation. years last seven its of Towns’s the course through material was obtained fill of the amount business, and overall duration prolonged ordinary as an characterized that can be any activity exceeds Co., N.Y.S.2d v. Cont’l See Velleman use.8 personal deliveries courier although (explaining (Sup. Ct. 148-49 frequency households, regularity common to are them precluded business with insured’s associated deliveries use).9 nonbusiness ordinarily incident to as being characterized ¶ fill and the case, large quantity given In this 49. these materials on fill, dispоsal Towns’s nature industrial that an operation from an very different his parties unlikely is “[I]t undertake. ordinary might homeowner this type associated” with the increased risks to cover expected 149; Peerless Ins. Luneau v. activity. Id. industrial large-scale, 448-49, (explaining reasonably expect would to a homeowner’s parties risk greater duties and the legal the different coverage for activities). business associated with ¶ majority’s conclusion I no basis for 50. also find he saved because purpose” no business conduct “served ¶ Ante, 12. home. the debris his money by depositing no “precisely failing provide guidance majority this dissent for criticizes ‘activity’ may ‘normal’ for filling be characterized long much how or how however, Ante, majority recognizes, distinguishing 13. As the personal use.” Thus, Ante, inquiry. “context-specific” pursuits nonbusiness business from *25 entirety, activity, when viewed in its question Towns’s sole before us is whether the business, might activity hypothetically amount to a part not what was of his pursuit in another situation. nonbusiness frequent regular inapposite the and majority because The deems Velleman the a business entrance of material made to were business-related deliveries regular from Towns’s how this is different I fail to understand insured’s residence. event, any In the main frequent delivery materials to his home. of business and frequent “so as to at residences just deliveries are not so point that as courier is activities,” Velleman, at adjunct 616 N.Y.S.2d expected to a homeowner’s be an hauling waste, profit through for his waste deposit obtained regular of commercial ordinarily occurring a residence. business, activity expected at that is as is not an money Whether Towns saved items any by depositing the his in a landfill not the backyard opposed question as to does answer the and of the served a hauling disposing whether items collect, him business clients haul and purpose. paid dispose dispose of industrial Rather than of the items in a waste. landfill, deposit Towns chose to some of the debris on his property. majority The claims that because Towns’s business did any not benefit his the receive additional diversion of debris the property, activity his residential was transformed into an Thus, ordinary majority separate use. personal attempts disposal part of the business from Towns’s hauling waste enterprise and looks for a distinct earned on choice of profit waste, however, The be dumpsite. dumping cannot dis- cretely isolated from the fees Towns for the received removal and transportation elsewhere, of the debris for disposal majority’s ruling our contrary prior otherwise decisions on exception business-pursuits exclusion. In evaluating whether an activity ordinarily can be considered incidental to a have, pursuit, nonbusiness we action in focused isolation, in the but context the situation. See N. Sec. Co. Perron, 223-24, 777 A.2d (holding parents that whilе general responsibility to supervise their children, in context of a home daycare, failure to supervise is a activity). business In Luneau v. Peerless Insurance we rejected approach “narrowly looked at activity which the insured engaged when tort occurred.” 170 Vt. at 750 A.2d at We explained 1035. “narrow distinctions up tend to eat pursuits exception business because tortious conduct, context, viewed isolation from its rarely advances a business interest and can easily categorized be ordinarily 447-48, incident pursuits.” to nonbusiness Id. at Luneau, 51. In wedding disc jockey got a physical fight with a guest. fight, During speaker was knocked over and injured plaintiff. plaintiff argued fighting was a activity nonbusiness and therefore was coverage there under the disc jockey’s homeowner’s the injury. This Court it disagreed, explaining jockey’s was the negligence disc placing speaker that was at issue this was related to his duty business “to maintain a safe space his customers.” Id. 449-50, 750 A.2d at In doing, 1035-36. so did not examine specific whether particularly profited conduct the business. *26 from his any way did not benefit Indeed, business jockey’s in a engaging or from speaker arranging negligently act of activities were jockey’s held that we nonetheless fight, but general. Id. profit-motivated that was of his business part 750 A.2d at ¶ the material he that he obtained dispute not 52. Towns does up, to clean he was contracted from sites yard his deposited sites, those the debris from to remove paid that he was these have had access to contracts, would not these he without homeowners would recognizes, most majority As the materials. Ante, 12. Towns obtained disposal. the same means at their by contract to paid and was through his business the materials “one that Therefore, activity was items. dispose Gambell, for the but business.” normally pursue would not insured Towns also received A.2d at 454. That Vt. ravine on large filling benefit personal additional perceived of at yard in his instead the material by depositing his property activity an which does “not transform waste-disposal site proper ordinarily one incident essentially business related into was Stinnett, Fire & Cas. Co. v. State Farm pursuits.” non-business 1979) (Ill. act (holding that insured’s App. Ct. 389 N.E.2d his farm was a the roads around mowing along the weeds into his keep spreading weeds from activity intended business “looking farm keeping the additional benefit fields and pursuit); into a nonbusiness activity not transform the nice” did Alliance Mut. Mut. Ins. Co. v. Farmers see also Grain Dealers (10th (applying Cir. 298 F.3d law) depositing fly act of ash (holding that landowners’ Oklahoma venture because it was done their was a business and that the incidental benefit ash-hauling of an contract part property improve transform it into a a ravine did not reclaiming project). ment and demolition debris of construction disposing 53. Because disposal and because this integral part of Towns’s business I activity, would ordinary nonbusiness any expected,
far exceeded ex- business-pursuits the trial court’s conclusion that affirm case. I am authorized to state bars this clusion joins this dissent. Burgess Justice