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Court: Bat guano is not ‘pollution’

Bat guano is not a pollutant, as that term is used in a homeowner’s insurance policy’s pollution exclusion.

“The only exemplar in the definition of pollutant here that suggests inclusion of bat guano is ‘waste,’” Wisconsin Court of Appeals Judge Michael W. Hoover explained. “Indeed, waste can mean excrement. But in the context it is presented here, when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind.”

Joel and Evelyn Hirschhorn own a vacation home in Oneida County that became infested with bats. They ultimately had to demolish the home and build another.

They sought coverage for the damage from their insurer, Auto-Owners Insurance Company, but the claim was denied.

The Hirschhorns then brought suit seeking coverage, but the circuit court granted summary judgment in favor of Auto-Owners, concluding that the policy’s pollution exclusion precluded coverage.

The Court of Appeals reversed.

The policy defines pollutant as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gasses and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The court noted that the same exclusion has twice been considered by the Wisconsin Supreme Court.

In Donaldson v. Urban land Interests, Inc., 211 Wis.2d 224, 564 N.W.2d 728 (1997), the court held that exhaled carbon dioxide was not a pollutant; In Peace v. Northwestern Nat’l. Ins. Co., 228 Wis.2d 106, 596 N.W.2d 429 (1999), the court held that lead paint was.

The court concluded that Donaldson governs instead of Peace. “[W]e conclude excreted bat guano is akin to exhaled carbon dioxide, both biologically and as a reasonable insured homeowner would view it regarding the pollution exclusion.”

The court acknowledged that bat waste is obviously “waste.” But invoking the ejusdem generis rule, which requires that words in a list be interpreted in light of the other listed terms, the court concluded that “waste” did not include bat guano.

Finding numerous definitions of “waste,” the court adopted the following as the most appropriate for purposes of an insurance policy’s pollution exclusion: “damaged, defective, or superfluous material produced during or left over from a manufacturing process or industrial operation.”

Finally, the court found that a reasonable insured would not consider “waste” to include bat guano, because of the policy’s exclusionary clause, which omits coverage for the “discharge, release, escape, seepage, migration or dispersal of pollutants.”

The court concluded, “None of those terms particularly suggest the movement of excrement. Rather, the bodily processes by which wastes such as carbon dioxide, urine, or feces move out of an organism would more commonly be described as respiration, elimination, excretion, or some other term suggesting a biological process.”

David Ziemer can be reached at david.ziemer@wislawjournal.com

What the court held

Case: Hirschhorn v. Auto-Owners Insurance Co., No. 2009AP2768

Issues: Is damage to a home caused by bat guano excluded from coverage under an insurance policy’s pollution exclusion?

Holdings: No. A reasonable insured would not consider bat guano to be pollution as the term is defined in the policy.

Attorneys: For Plaintiffs: Joel Hirschhorn, Coral Gables, FL; For Defendant: Douglas J. Klingberg, Wausau.

One comment

  1. So, did mr Hirschorn appeal to the US Supreme court or the case has been ended. I have been following this case for 7 years
    cw
    cwriverhouse@aol.com

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