                                                              2014 WI 135

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP2521
COMPLETE TITLE:         Tina L. Preisler and Frederick W. Preisler,
                                   Plaintiffs-Co-Appellants-Petitioners,
                             v.
                        General Casualty Insurance Company, Regent
                        Insurance
                        Company, Hastings Mutual Insurance Company and
                        Secura
                        Insurance, a mutual company,
                                   Defendants-Respondents,
                        Kuettel's Septic Service, LLC, 4-DK Farm, Duke
                        Kuettel,
                        Doug Kuettel, Dale Kuettel and Cheryl Kuettel,
                                   Defendants-Appellants-Petitioners.

                        ------------------------------------------------
                        Tina L. Preisler and Frederick W. Preisler,
                                  Plaintiffs-Appellants-Petitioners,
                             v.
                        Chartis Specialty Insurance Company f/k/a
                        American
                        International Specialty Lines Insurance Company,
                                  Defendant,
                        Rural Mutual Insurance Company,
                                  Defendant-Respondent,
                        Phil's Pumping and Fab, Inc.,
                                  Defendant-Co-Appellant-Petitioner.


                              REVIEW OF A COURT OF APPEALS DECISION
                         (Reported at 352 Wis. 2d 754, 843, N.W.2d 710)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:          December 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 12, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Outagamie
   JUDGE:               Michael W. Gage

JUSTICES:
   CONCURRED:           BRADLEY, J., concurs. (Opinion filed.)
   DISSENTED:           ABRAHAMSON, C.J., dissents. (Opinion filed.)
   NOT PARTICIPATING:
ATTORNEYS:
       For   the      defendants-appellants-petitioners,             there     were
briefs by Michael C. Menghini and Herrling Clark Law Firm Ltd.,
Appleton, and oral argument by Michael C. Menghini.


       For   the      defendant-co-appellant-petitioner,             there     were
briefs by Winston A. Ostrow, Jonathan T. Smies, and Godfrey &
Kahn, S.C., Green Bay, and oral argument by Jonathan T. Smies.


       For   the    plaintiffs-co-appellants-petitioners,             there    were
briefs by James A. Olson, P. Scott Hassett, Kathryn A. Harrell,
Daniel S. Lenz, and Lawton & Cates, S.C., Madison, and oral
argument by James A. Olson.


       For defendant-respondent Rural Insurance Company, there was
a brief by Christine M. Rice, Matthew J. Van Keulen, and Simpson
&   Deardorff,      S.C.,   Milwaukee.       Oral   argument   by   Christine      M.
Rice.


       For defendant-respondent Hastings Mutual Insurance Company,
there was a brief by William R. Wick, Ryan R. Graff, Katelyn P.
Sandfort,     and     Nash,    Spindler,       Grimstad    &    McCracken      LLP,
Manitowoc, and oral argument by Ryan R. Graff.


       For   defendants-respondents           General   Casualty     Company       of
Wisconsin and Regent Insurance Company, there was a brief and
oral argument by Jeffrey A. Evans and von Briesen & Roper, S.C.,
Milwaukee.


       For   defendant-respondent        Secura      Insurance,     there    was   a
brief and oral argument by Todd Joseph Koback, John P. Runde,
and Davczyk & Varline, LLC, Wausau.




                                         2
3
                                                                 2014 WI 135
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2012AP2521
(L.C. No.   2010CV2601 & 2011CV706)

STATE OF WISCONSIN                      :            IN SUPREME COURT

Tina L. Preisler and Frederick W. Preisler,

            Plaintiffs-Co-Appellants-Petitioners,

      v.

General Casualty Insurance Company, Regent
Insurance Company, Hastings Mutual Insurance
Company and Secura Insurance, a mutual company,

            Defendants-Respondents,

Kuettel's Septic Service, LLC, 4-DK Farm, Duke
Kuettel, Doug Kuettel, Dale Kuettel and Cheryl
Kuettel,
                                                               FILED
            Defendants-Appellants-Petitioners.
                                                          DEC 30, 2014
----------------------------------------------
                                                             Diane M. Fremgen
Tina L. Preisler and Frederick W. Preisler,               Clerk of Supreme Court


            Plaintiffs-Appellants-Petitioners,

      v.

Chartis Specialty Insurance Company f/k/a
American International Specialty Lines
Insurance Company,

            Defendant,

Rural Mutual Insurance Company,

            Defendant-Respondent,
Phil's Pumping and Fab, Inc.,

                 Defendant-Co-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                    Affirmed.



       ¶1        PATIENCE DRAKE ROGGENSACK, J.                We review a decision

of the court of appeals1 affirming an order of the circuit court2

that granted summary judgment to Rural Mutual Insurance Company,

Regent      Insurance        Company    and       General    Casualty     Company   of

Wisconsin.           Our     review    focuses       on     the   interpretation     of

pollution exclusion clauses in commercial and contractor general

liability insurance policies.

       ¶2        We conclude that a reasonable insured would understand

that decomposing septage is a "contaminant" and therefore, a

"pollutant" as defined in the policies when it has decomposed

and    seeps      into   a   water    supply.       Accordingly,     we   affirm    the

decision of the court of appeals, which granted summary judgment
upon       its    conclusion     that     the      pollution      exclusion    clause

precluded coverage for harm resulting from the Preislers' water

supply's contamination.




       1
       Preisler v. Kuettel's Septic Serv., LLC, No. 2012AP2521,
unpublished slip op. (Ct. App. Jan. 14, 2014).
       2
       The        Honorable     Michael       W.    Gage     of   Outagamie    County
presided.



                                              2
                                                                                 No.     2012AP2521



       ¶3         We       also    conclude    that          the     petitioners       failed    to

petition this court for review of the court of appeals dismissal

of their claims against Hastings Mutual Insurance Company and

Secura Insurance Company on alternative grounds.                                 We decline to

consider issues not raised in petitions for review.                                      State v.

Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999); Wis. Stat.

§ 809.62         (2011-12).3            Accordingly,           those    dismissals       are    not

before us.

                                         I.    BACKGROUND

       ¶4         This      review    involves          an   insurance        coverage    dispute

concerning             a    pollution     exclusion           clause     commonly       found    in

commercial general liability (CGL) policies.                              The historic facts

are not in dispute.

       ¶5         Fred and Tina Preisler operate a dairy farm and raise

cattle.            A       well    drilled     in       1972       supplied    water     for    the

Preislers' household and farm uses until 2008.

       ¶6         Duke, Doug, Dale, and Cheryl Kuettel live on a farm

across the road from the Preislers' farm.                               From that property,
the Kuettels run a farming operation, 4-DK Farm, and a septic

pumping          service,         Kuettel's    Septic          Service,       LLC.      Kuettel's

Septic hauls, stores, and disposes of the waste it pumps from

customers' septic tanks.                     Kuettel's Septic also collects waste

from grease traps, floor pits, and car washes, which it combines

with       the    human       waste     from   septic          tanks.         Kuettel's    Septic

       3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                                    3
                                                              No.    2012AP2521



periodically hired Phil's Pumping and Fab, Inc. to dispose of

septage.4

     ¶7     Septage is primarily composed of human urine and fecal

material,   as   well   as   other   materials   disposed     of    in   septic

tanks, grease interceptors and portable restrooms.                   See Wis.

Admin.    Code   § NR   113.03(55)   (Feb.    2014)    (defining    septage).

Septage contains nitrogen, and when septage is introduced into

soil, it decomposes.         During that biological process nitrates

are formed.       Mike O'Leary et al.,        Understanding Nitrogen in

Soils,             Univ.             of               Minn.              (2002)

http://www.extension.umn.edu/agriculture/nutrient-

management/nitrogen/understanding-nitrogen-in-soils/.

     ¶8     When nitrates are created in excess of what plants are

able to use, nitrates can leach into water supplies.                 Id.    The

presence of nitrates in water supplies is a concern for human

health as it may cause health problems in infants and may be

implicated as a risk factor associated with chronic health and

reproductive     problems.     Nonpoint      Source    Pollution    Abatement
Program Redesign, Nitrate in Groundwater - A Continuing Issue

for Wisconsin Citizens 3 (1999).             Additionally, high nitrate




     4
       We will subsequently refer to Fred and Tina Preisler as
"the Preislers." We will refer to Kuettel's Septic, 4-DK Farm,
the individual Kuettels, and Phil's Pumping collectively as "the
Kuettels."   We will refer to the insurance companies either
collectively as "the insurers" or individually as "Regent" or
"Rural."


                                      4
                                                                        No.        2012AP2521



levels may cause poor appetite or acute nitrogen poisoning in

livestock.      Id.

       ¶9     Fred     Preisler    and     Duke      Kuettel       discussed       applying

septage on the Preislers' farm as fertilizer.                        Kuettel's Septic

received      permission    from    the       Wisconsin      Department       of    Natural

Resources (DNR) to apply it.                  Kuettel's Septic applied septage

to the Preislers' farm fields for several years.

       ¶10    In 2008, the Preislers experienced problems with their

well water.      The Preislers' cattle that drank the water began to

die at an uncharacteristic rate.                   The Preislers further noted a

decrease in milk production.                  August 2008 testing showed the

Preislers'     well     water     contained        elevated    levels    of    nitrates,

which are produced as septage decomposes.                          The cattle deaths

subsided later in 2008 after the Preislers drilled a new well.

       ¶11    The Preislers sued Kuettel's Septic in 2010 and Phil's

Pumping in 2011.         The cases were consolidated and 4-DK Farm and

the    individual       Kuettels    were      added.         The    Preislers       alleged

negligence      in     storing    and    in       applying    septage    resulting        in
nuisance and trespass.              They also alleged the Kuettels were

strictly liable for engaging in an abnormally dangerous activity

and that Duke Kuettel violated Wis. Stat. § 100.18 by promising

compliance with DNR regulations, failing to follow through, and

falsifying DNR reports.

       ¶12    The Preislers added the parties' insurers to the suit.

Hastings insured Kuettel's Septic under a CGL policy between

1999    and    2005,    after     which    Regent      insured       Kuettel's       Septic
(General Casualty Insurance Company did not insure any party,
                                              5
                                                                   No.     2012AP2521



but is affiliated with Regent).              Hastings also insured 4-DK Farm

under a CGL policy until 2007, after which Secura insured 4-DK

Farms.      Secura also provided homeowners insurance to individual

Kuettels.5       Rural    insured    Phil's    Pumping    under    a     CGL   policy

between 2002 and 2013.

      ¶13    The Rural and Regent policies include similarly worded

pollution exclusion clauses.           They exclude harm "arising out of

the   actual,     alleged,     or     threatened        discharge,       dispersal,

seepage, migration, release or escape of 'pollutants'. . . ."

The Rural and Regent policies also define "pollutants" similarly

as:       "any   solid,    liquid,     gaseous     or    thermal       irritant   or

contaminant,      including     smoke,        vapor,    soot,     fumes,       acids,

alkalis, chemicals and waste.                Waste includes materials to be

recycled, reconditioned or reclaimed."




      5
       The homeowners policies are not at issue in this appeal.
They do not include pollution exclusion clauses, and the circuit
court determined another exclusion applied. The parties do not
challenge this determination, and we do not address it.      See
Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16
(1992)   (appellate  courts   need  not   consider  issues   not
specifically raised on appeal).


                                         6
                                                                      No.   2012AP2521



     ¶14     The    insurers   moved        for   summary       and     declaratory

judgment.6    The circuit court agreed that the pollution exclusion

clause applies to preclude coverage for alleged losses arising

out of storage of septage and application of septage to farm

fields that is alleged to have caused contamination of the water

supply resulting in harm to the Preislers.                     The Preislers and

Kuettels     appealed,   arguing      septage     is    not    a    pollutant     and

therefore, the exclusion does not preclude coverage.                        The court

of appeals affirmed.

     ¶15     On    April 17,   2014    we     granted    the       Preislers'     and

Kuettels' petitions for review.             On May 21, 2014, Secura filed a

motion for summary disposition in this court on the alternative

basis of a limited liability endorsement.                     Initially, we held

the motion in abeyance.        We need not address Secura's motion as

Secura's liability is not before us as we explain below.

                               II.    DISCUSSION

                          A.   Standard of Review

     ¶16     The Preislers and Kuettels ask the court to review the
applicability of the pollution exclusion clause, upon which the


     6
       Rural and Regent moved for summary judgment. Hastings and
Secura moved for summary and declaratory judgment. All insurers
argued they had no duty to defend or indemnify the various
insureds.    The policies we address are Regent's Contractors
General Liability Coverage policy for Kuettel's Septic, LLC and
Rural's Commercial General Liability Coverage policy for Phil's
Pumping and Fab, Inc. We do not discuss the pollution exclusion
clauses in Hastings' and Secura's policies because the parties
did not petition for review of the court of appeals' dismissal
of claims against Hastings and Secura, on alternative grounds.


                                        7
                                                                          No.    2012AP2521



circuit court and the court of appeals relied to grant summary

judgment dismissing Rural and Regent from this lawsuit.                           When we

review      summary     judgment,     we         independently      apply       the   same

methodology as the circuit court and the court of appeals.                             The

standards     set     forth   in    Wis.   Stat.         § 802.08   are    our    guides.

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶20, 338 Wis. 2d

761, 809 N.W.2d 529 (reviewing summary judgment denying coverage

for property harm from accumulation of bat guano); Siebert v.

Wis. Am. Mut. Ins. Co., 2011 WI 35, ¶27, 333 Wis. 2d 546, 797

N.W.2d     484    (reviewing       summary       judgment       denying    coverage     in

negligent entrustment claim); Peace v. Nw. Nat'l Ins. Co., 228

Wis. 2d 106, 119-20, 596 N.W.2d 429 (1999) (reviewing summary

judgment denying coverage for claims arising from ingestion of

lead); Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224,

229-30,     564     N.W.2d    728    (1997)        (reviewing       summary      judgment

denying coverage for injuries resulting from buildup of carbon

dioxide).        Summary judgment "shall be rendered if the pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law."                      § 802.08(2).

      ¶17    The parties do not dispute the material facts giving

rise to the Preislers' loss.7              Rather, the sole issue is whether

the   pollution        exclusion     clause         in    the    insurance       policies


      7
          See Preisler, No. 2012AP2521, unpublished slip op., ¶12.


                                             8
                                                                           No.       2012AP2521



excludes coverage for harm the Preislers allege they sustained

due    to    contamination          of    their    water     supply       by     decomposing

septage.        The     interpretation         of    an     insurance      policy          is    a

question of law that we review independently.                                  Siebert, 333

Wis. 2d 546, ¶28.

                              B.    Policy Interpretation

       ¶18     This    case      requires     us     to    interpret       the      pollution

exclusion      clause       as     it    applies    to    decomposing          septage     that

entered a water supply.                   We must determine whether it is a

pollutant within the meaning of the pollution exclusion clause

of    the    insurance       policies.         The       primary    task       in    contract

interpretation         is    to     determine       and    carry    out     the      parties'

intentions.         Hirschhorn, 338 Wis. 2d 761, ¶22; Am. Family Mut.

Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673

N.W.2d 65.          We interpret insurance policy language according to

its plain and ordinary meaning as understood by a reasonable

insured.       Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d

at 120-21.
       ¶19     Terms, words, or phrases in an insurance policy are

ambiguous rather than plain if they are "fairly susceptible to

more    than    one     reasonable         interpretation."            Hirschhorn,              338

Wis. 2d 761, ¶23; accord Peace, 228 Wis. 2d at 121.                                    Policy

language       is     not     ambiguous      merely       because      more         than        one

dictionary definition exists or the parties disagree about its

meaning.       Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d

at 136.      Policy language also is not ambiguous because different


                                              9
                                                                                No.    2012AP2521



courts    have     come      to    differing         interpretations.                Peace,    228

Wis. 2d at 136.

       ¶20   Policy language is ambiguous when a reasonable insured

would read the policy to provide coverage and the language is

susceptible to more than one reasonable interpretation.                                        See

Donaldson, 211 Wis. 2d at 235.                       If coverage is ambiguous, the

court's      construction            is     constrained           and     ambiguities          are

construed       against        the    insurer         and    in    favor        of    coverage.

Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d at 121;

Donaldson, 211 Wis. 2d at 230.

                          1.      Initial grant of coverage

       ¶21   The      insurers,       in    disputing        the       policies'       grant   of

coverage to the Kuettels, are disputing their duties to defend

and indemnify.          We determine an insurer's duty to defend "by

comparing the allegations of the complaint to the terms of the

insurance policy."             Estate of Sustache v. Am. Family Mut. Ins.

Co.,     2008    WI    87,     ¶20,       311     Wis. 2d      548,      751     N.W.2d       845.

"[A]llegations         contained           within      the     four      corners        of     the
complaint" trigger the duty to defend.                            Id.     We focus on the

nature, rather than the merits, of the claim.                             Id.     The duty to

defend is broader than the duty to indemnify, "insofar as the

former    implicates         arguable,       as      opposed      to    actual,       coverage."

Id.      We construe allegations in the complaint liberally and

assume all reasonable inferences.                       Id., ¶21.           The Preislers'

complaint includes allegations of negligent septage application

and storage by the Kuettels.


                                                10
                                                                         No.     2012AP2521



      ¶22      Our procedure for determining whether coverage exists

under     an   insurance     policy      follows       three    steps.         First,     we

examine the facts of the insured's claim to decide whether the

policy makes an initial grant of coverage for the claim set out

in the complaint.          Am. Girl, 268 Wis. 2d 16, ¶24.                 The analysis

ends there if the policy clearly does not cover the claim.                               Id.

However,       if   the   claim    set   out    in     the   complaint         triggers   a

potential grant of coverage, we secondly examine whether any of

the policy's exclusions preclude coverage for that claim.                                Id.

Third, if an exclusion precludes coverage, we analyze exceptions

to the exclusion to determine whether any exception reinstates

coverage.       Id.

      ¶23      The parties did not argue the Preislers' claims fall

outside the policies' grant of coverage.                       The court of appeals

assumed        without     deciding        that        the     policies        at   issue

affirmatively grant coverage.8             However, we nevertheless consider

whether there is a potential grant of coverage because it aids

in our evaluation of the historic facts in the context of the
pollution exclusion.

      ¶24      Coverage is triggered by an occurrence.                    Regent's and

Rural's policies provide that they "appl[y] to 'bodily injury'

and   'property       damage'     only   if:      (1)    The    'bodily        injury'    or

'property       damage'    is     caused   by     an    occurrence."            (Emphasis

added.)             The   policies       define        "occurrence"       identically:


      8
          Preisler, No. 2012AP2521, unpublished slip op., ¶15.


                                           11
                                                                      No.    2012AP2521



"'[o]ccurrence'       means     an     accident,    including         continuous        or

repeated      exposure    to    substantially      the    same    general      harmful

conditions."         We   interpret      policy    language      according        to   its

plain   and     ordinary       meaning    as    understood       by    a    reasonable

insured.      Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d

at 120-21.

      ¶25     We turn to Couch on Insurance for its description of

"occurrence" in pollution exclusion cases:

           Due to the fact that most policies define an
      "occurrence" to mean an "accident," the pollution
      coverage issue often turns upon the intent of the
      insured.   In making this determination, jurisdictions
      have focused on different aspects of the polluting
      process to assess the mindset of the insured.     Most
      courts have focused on the damage caused by the
      pollution and have concluded that there is an
      occurrence when the insured did not expect or intend
      the resultant damage.
9 Steven Plitt et al., Couch on Insurance § 127.4 (2008).

      ¶26     We have interpreted whether certain circumstances fall

within policy definitions of "occurrence."                  In American Girl, we

determined that soil settlement that occurred because of faulty

site-preparation advice of a soil engineer was an "occurrence."

Am.   Girl,    268   Wis. 2d     16,     ¶38.     The    policy's     definition        of

"occurrence" was the same as here, and we focused on defining

"accident."      Id., ¶37.        We looked to a dictionary definition:

"'The   word    "accident,"      in    accident    policies,      means      an    event

which takes place without one's foresight or expectation.                               A

result, though unexpected, is not an accident; the means or
cause must be accidental.'"              Id. (quoting Black's Law Dictionary


                                           12
                                                                              No.       2012AP2521



15    (7th    ed.     1999)).         We   considered         two    causes       of    property

damage,       both    the    inadequate         site-preparation           advice       and    the

actual settling of the soil, and found neither was intended,

anticipated, or expected.                   Id., ¶38.            We therefore held the

accidental      circumstances          underlying          the     claim    constituted         an

"occurrence" within the policy's definition.                         Id.

       ¶27     Interpreting American Girl, the court of appeals has

held accidental soil contamination was an "occurrence," where

the policy provided no definition.                        United Coop. v. Frontier FS

Coop., 2007 WI App 197, ¶¶12, 15, 304 Wis. 2d 750, 738 N.W.2d

578.     The court acknowledged that American Girl required focus

on the "event or series of events that allegedly caused the

alleged bodily injury or property damage."                            Id., ¶16.              United

Coop. lacked any specific facts on how the soil contamination

occurred, but nevertheless concluded that the contamination was

an     "occurrence"           because        it      caused        property       damage        to

groundwater.         Id., ¶¶20, 35.

       ¶28     As with American Girl and United Coop., the facts of
this    case,    if     proved,       present        an   "occurrence"       triggering         an

initial grant of coverage.                 Here, the "accident" was the seepage

of     decomposing          septage     into      the      Preislers'       water        supply.

Seepage into the water supply was not "intended, anticipated, or

expected."            Am.    Girl,     268      Wis. 2d       16,    ¶38.         Seepage       of

decomposing septage into the water supply is an occurrence, as

was     the     settling        soil       in     American         Girl     and        the    soil

contamination in United Coop.                     Id.; United Coop., 304 Wis. 2d
750,    ¶20.         Here,    the    resulting        harm    is    water    with       elevated
                                                13
                                                                    No.     2012AP2521



nitrate levels.       See United Coop., 304 Wis. 2d 750, ¶35 (stating

an occurrence caused property damage to groundwater).

                           2.   Pollution exclusion

       ¶29   Next,    we   examine     whether    either      of    the   policies'

exclusions preclude coverage at the time of the occurrence.                       See

Am. Girl, 268 Wis. 2d 16, ¶24.             Typically, to resolve whether a

pollution     exclusion     applies,     we    first    determine     whether     the

substance in question falls unambiguously within the policy's

definition    of     pollutants.       Hirschhorn,      338    Wis. 2d     761,   ¶25

(determining whether bat guano is unambiguously a pollutant);

Peace, 228 Wis. 2d at 119 (determining whether lead present in

paint is unambiguously a pollutant); Donaldson, 211 Wis. 2d at

229 (determining whether exhaled carbon dioxide is unambiguously

a pollutant).        Then, if the substance fits within the policy's

definition of pollutants, we determine whether the alleged loss

resulted     from    the   "discharge,     dispersal,        seepage,     migration,

release or escape" of the substance under the plain terms of the

policy's pollution exclusion clause.                   Hirschhorn, 338 Wis. 2d
761, ¶25; Peace, 228 Wis. 2d at 119; Donaldson, 211 Wis. 2d at

229.

       ¶30   However, the parties do not appeal the circuit court's

ruling   that   the    Preislers'      alleged    damage      resulted     from   the

"discharge, dispersal, seepage, migration, release or escape of"

decomposing     septage     within   the      meaning   of    the   terms    in   the




                                        14
                                                                No.   2012AP2521



pollution exclusion clause.9         Therefore, we are presented with

the sole inquiry of whether, at the time of the occurrence that

triggered   coverage,      the   decomposing    septage    is    a    pollutant

within the policies' definition.

                            a.   limited inquiry

    ¶31     We need to determine only whether decomposing septage

is a pollutant as it seeped into the Preislers' water supply.

There is no occurrence until that seepage into the water supply

takes place.     Our approach of construing whether a substance is

a pollutant at the point it harms the interests of another is

consistent with our previous pollution exclusion decisions.                  As

we explain below, those decisions focused on the event giving

rise to the alleged harm at issue, rather than on an initial

event that may have involved a beneficial use of the substance.

Peace, 228 Wis. 2d at 126; U.S. Fire Ins. Co. v. Ace Baking Co.,

164 Wis. 2d 499, 501, 476 N.W.2d 280 (Ct. App. 1991).

    ¶32     Peace and Ace Baking are particularly instructive.               In

Peace,   harm   resulted    from   the    release   of   lead   paint   chips,
flakes, and dust into a home painted with lead paint.                    Peace,

228 Wis. 2d at 111.        We focused not on lead intentionally used

in paint for a beneficial purpose, but rather on release of lead

from the paint on the walls into the air or onto the floor as

the substance that gave rise to an occurrence under the language


    9
       See Preisler, No. 2012AP2521, unpublished slip op., ¶39
(failing to challenge the circuit court's conclusion at the
court of appeals).


                                     15
                                                                          No.    2012AP2521



of the policy.        See id. at 126 ("Conceptually, we view the lead

not   as    contaminating       the    paint      but   as    giving    the     paint    the

potential to contaminate air, water, and the human body when it

disperses.").       Therefore, although lead had a beneficial use in

the paint when it was applied to the walls, our evaluation of

whether lead was a pollutant was made when harm occurred.

      ¶33    In Ace Baking, fabric softener and ice cream cones

were stored in the same warehouse, and a fragrance additive to

the fabric softener spread to the ice cream cones, making them

taste like soap.         Ace Baking, 164 Wis. 2d at 500.                    The court of

appeals determined that the fragrance in the fabric softener

became a pollutant when it spread to the ice cream cones stored

in the same warehouse, even though the court would not have

considered     it   a    pollutant         if    it   had    stayed    in     the     fabric

softener.     Id. at 505.           The court said, "it is a rare substance

indeed that is always a pollutant; the most noxious of materials

have their appropriate and non-polluting uses."                        Id.      Peace and

Ace Baking support our conclusion that we apply the definition
of    pollutant     at    the       time    of    the       occurrence,       i.e.,     when

decomposing     septage        entered     Preislers'        well,    rather     than    the

allegedly negligent application of septage to fields.

                               b.    reasonable insured

      ¶34    The    pollution         exclusion         clause    provides,         "[t]his

insurance does not apply to:                . . . 'Bodily injury' or 'property

damage'     arising      out    of    the       actual,      alleged    or      threatened

discharge, dispersal, seepage, migration, release or escape of
'pollutants'."        Each policy defines "pollutants" as "any solid,
                                            16
                                                                                No.     2012AP2521



liquid, gaseous or thermal irritant or contaminant, including

smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.

Waste    includes          materials         to     be       recycled,    reconditioned          or

reclaimed."         The policy does not further define contaminant.

    ¶35       We construe these terms according to their plain and

ordinary meanings as understood by a reasonable person in the

position of the insured.                      Hirschhorn,           338 Wis. 2d 761,           ¶22;

Peace, 228 Wis. 2d at 120-21.                      Our decisions in Donaldson, Peace

and Hirschhorn are instructive in determining the meaning of

contaminant and therefore, pollutant.                          Furthermore, the limiting

principles         applied          in     Donaldson          and     Langone     aid     us     in

determining a reasonable insured's understanding of the meaning

of pollutant and contaminant.                       Donaldson, 211 Wis. 2d at 232;

Langone v. Am. Family Mut. Ins. Co., 2007 WI App 121, ¶22, 300

Wis. 2d 742, 731 N.W.2d 334.

    ¶36       First,           in    Donaldson,         we    held     that     the     pollution

exclusion clause did not preclude coverage for personal injury

claims stemming from inadequate ventilation of exhaled carbon
dioxide in an office building.                          Donaldson, 211 Wis. 2d at 235.

We concluded a reasonable insured would not understand exhaled

carbon     dioxide         to       fall    within       the    policy's        definition      of

pollutants.              Id.    at       231-32.         We    recognized       the   pollutant

definition         was    broad:            "'irritant'         and    'contaminant,'          when

viewed   in    isolation,             are    virtually         boundless,       for     there   is

virtually no substance or chemical in existence that would not

irritate      or    damage          some    person       or    property."         Id.     at    232
(quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins.
                                                   17
                                                                             No.    2012AP2521



Co., 976 F.2d 1037 (7th Cir. 1992)).                        Therefore, we warned that

"[t]he       reach     of   the      pollution         exclusion       clause       must    be

circumscribed by reasonableness, lest the contractual promise of

coverage      be     reduced    to    a   dead     letter."          Id.     at    233.      We

concluded      that      the     plaintiffs'           injuries      resulted       from    an

everyday activity "gone slightly, but not surprisingly, awry."

Id. (quoting Pipefitters, 976 F.2d at 1043-44).                            We explained it

was    significant       that     exhaled    carbon          dioxide    is    "universally

present      and     generally    harmless        in    all    but     the   most     unusual

instances" and that exhaled carbon dioxide is a necessary and

natural part of life.                Id. at 234.            Accordingly, we held that

"the     pollution      exclusion         clause       is    ambiguous       because       [the

insured] could reasonably expect coverage on the facts of this

case."    Id. at 233.

       ¶37    Two years later, in Peace, we held that a pollution

exclusion clause excluded coverage for personal injury claims

arising out of a minor's ingestion of lead-based paint chips,

flakes, and dust present in the insured's apartment.                               Peace, 228
Wis. 2d at 110-11.             We concluded once the previously contained

pollutant, lead, "begins to disperse, discharge, or escape from

the containment of the painted surface, it falls within the

plain language of the pollution exclusion clause."                           Id. at 130.

       ¶38    Before coming to our conclusion, we consulted a non-

legal dictionary to define contaminant and irritant.                                  Id. at

122.      We applied these common definitions to the plaintiff's

claims and concluded there was "little doubt that lead derived
from lead paint chips, flakes, or dust is an irritant or serious
                                             18
                                                                               No.     2012AP2521



contaminant."        Id. at 125.            We noted the physical consequences

of lead paint used in a home were well-documented.                               Id. at 123-

24.     "Lead poisoning from paint at residential properties is

generally     caused      by   the     inhalation         of    lead-contaminated             dust

particles     or    toxic       lead     fumes    through            respiration        or    the

ingestion of lead-based paint chips by mouth.                             The consequences

can    be    disastrous        for     children."              Id.        We    distinguished

Donaldson because lead paint chips, flakes and dust "are widely,

if not universally, understood to be dangerous," while carbon

dioxide is not.          Id. at 137.        Therefore, "[r]easonable owners of

rental property[, the insureds,] understand their obligation to

deal with the problem of lead paint."                     Id. at 138.

       ¶39   Most    recently,         in    Hirschhorn,             we   held       bat     guano

unambiguously falls within the term, "pollutants," as defined by

the insurance policy because it constituted an irritant and a

contaminant.        Hirschhorn, 338 Wis. 2d 761, ¶¶33-34.                         We referred

both    to    dictionary        definitions          of        the    terms      and       health

consequences of human proximity to bat guano.                                  Id., ¶33.       We
concluded a reasonable insured would consider bat guano to be

waste, referencing the dictionary definition of the term.                                    Id.,

¶34.

       ¶40   In the instant case, the issue is whether a reasonable

insured would consider decomposing septage to be a pollutant

when it seeps into a water supply.                    Again, we interpret policy

language      according        to    its     plain    and        ordinary        meaning       as

understood     by    a    reasonable        insured.            Id.,      ¶22;    Peace,      228
Wis. 2d at 120-21.             When determining the ordinary meaning of
                                             19
                                                                       No.    2012AP2521



words not defined in an insurance policy, it is appropriate to

look to the definitions in a non-legal dictionary.                           Weimer v.

Country Mut. Ins. Co., 216 Wis. 2d 705, 723, 575 N.W.2d 466

(1998); Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 745,

456 N.W.2d 570 (1990).

       ¶41    As explained above, we accepted a non-legal dictionary

definition of contaminant in Peace, 228 Wis. 2d at 122.                                 We

determined      the    ordinary       meaning     of    contaminant     is    one     that

contaminates,         and   contaminate         means    "'[t]o   make       impure     or

unclean by contact or mixture.'"                  Id. at 122 (quoting American

Heritage Dictionary of the English Language 406 (3d ed. 1992)

[hereinafter American Heritage Dictionary]).

       ¶42    In determining whether a substance is a contaminant

and therefore a pollutant, the focus is on the event causing

harm because that is the occurrence triggering coverage.                         Id. at

126.      Here,     the     event     causing    harm    is    decomposing      septage

seeping      into   the     water   supply.        A    reasonable     insured      would

understand decomposing septage to be a contaminant when it seeps
into a water supply.

       ¶43    Handling, storing, and applying septage are activities

regulated by both the DNR and the United States Environmental

Protection      Agency.         See     generally       40    C.F.R.   § 503     (2013)

(federal regulation of domestic septage); Wis. Admin. Code §§ NR

113-114 (Feb. 2014) (state regulation of septage).                       Publications

produced to guide septage haulers and storers recognize septage

may be harmful and have the potential to affect health of humans
and livestock.         EPA, A Plain English Guide to the EPA Part 503
                                           20
                                                                            No.     2012AP2521



Biosolids             Rule         2            (1994),            available                 at

http://water.epa.gov/scitech/wastetech/biosolids/503pe_index.cfm

; Wis. DNR, Septage Operator Servicing Handbook and Study Guide

8-9                     (2013),                        available                             at

http://dnr.wi.gov/regulations/opcert/documents/septagestudyguide

.pdf [hereinafter "WDNR Septage Handbook"].                            The government's

regulation      of     septage     contributes         to     reasonable           insureds'

awareness of the health risks of septage hauling, storing, and

application.          See    Peace,    228   Wis. 2d         at   150       (Bradley,       J.,

concurring)     (noting        regulatory       restriction        of       lead    use     and

pollutant status despite intentional application).

      ¶44     Limiting principles that consider the nature of the

substance ensure that our construction of a pollution exclusion

clause   is    consistent       with   the      understanding          of    a    reasonable

insured.      Donaldson, 211 Wis. 2d at 232 (citing Pipefitters, 976

F.2d at 1043); Langone, 300 Wis. 2d 742, ¶22.                          These principles

apply to aid in the overarching reasonable insured analysis.

See   Hirschhorn,        338     Wis. 2d     761,      ¶30    (tying        the     limiting
principle back to a reasonable insured's understanding); Peace,

228 Wis. 2d at 136-38 (addressing limiting principle within the

understanding of a reasonable insured); Donaldson, 211 Wis. 2d

at    233-34    (placing        limiting     principles           in    context        of    a

reasonable      insured);         Langone,       300        Wis. 2d         742,     ¶¶17-18

(discussing         limiting    principle       in     context     of       a      reasonable

insured).

      ¶45     One     such     limiting    principle         applies        whenever        the
substance is "universally present and generally harmless in all
                                           21
                                                                          No.       2012AP2521



but the most unusual instances."                  Donaldson, 211 Wis. 2d at 234.

In those instances, we are hesitant to conclude that such a

substance    is     a    pollutant.       Id.       Both    Donaldson         and    Langone

considered the gasses at issue to be "universally present and

generally harmless in all but the most unusual instances."                                Id.;

see also Langone, 300 Wis. 2d 742, ¶19 ("Like carbon dioxide,

carbon monoxide is colorless, odorless, and present in the air

around us.").

    ¶46     Individual          components         of     septage        are        common.10

Septage   is    a      waste    product   with      use    as   a      farm    fertilizer.

Application       of     septage     comes    with      risks     to    water       supplies

because decomposing septage can release high levels of nitrates,

which can be dangerous to humans and cattle if they reach water

supplies.         WDNR     Septage    Handbook       at    8-9.         Septage      is    not

generally harmless nor is it the type of pervasive substance

considered in Donaldson and Langone.                    See Donaldson, 211 Wis. 2d

at 234; Langone, 300 Wis. 2d 742, ¶19.

    ¶47     A     second       limiting   principle        is     that    if     the      harm
results     from        "everyday    activities         gone      slightly,         but   not

surprisingly, awry," a reasonable insured would not necessarily

understand the substance to be a pollutant.                            Pipefitters, 976

    10
       In Guenther v. City of Onalaska, 223 Wis. 2d 206, 588
N.W.2d 375 (Ct. App. 1998), the court of appeals held the
pollution exclusion clause did not apply to the occurrence of a
domestic   sewer   backup.     Id.   at   208.     Guenther   is
distinguishable, as there the court concluded the policy covered
damage resulting from the liquid, non-toxic nature of the sewage
backup. Id.


                                             22
                                                                              No.    2012AP2521



F.2d at 1043-44; accord Peace, 228 Wis. 2d at 158; Donaldson,

211 Wis. 2d at 233.               Exposure of decomposing septage to the

Preislers'        water     supply      is    not    "an   everyday          activity       'gone

slightly,       but   not    surprisingly,           awry.'"         See     Donaldson,       211

Wis. 2d      at    233     (quoting     Pipefitters,        976       F.2d    at     1043-44);

Langone, 300 Wis. 2d 742, ¶19.

       ¶48     To explain further, in Langone, a gas-burning boiler

caused    an      excess    of   carbon       monoxide     and    caused       the    harm    at

issue.       Langone, 300 Wis. 2d 742, ¶¶2-3.                    The court of appeals

noted the common exposure of individuals to some carbon monoxide

in homes, especially in the presence of stoves with gas burners.

Id.,     ¶19.         However,        the     exposure     of        water     supplies       to

decomposing septage is not an everyday activity, as evidenced by

the protective regulatory mechanisms surrounding the hauling,

storing, and application of septage that are designed to prevent

invasion of water supplies.                  40 C.F.R. § 503 (2013); Wis. Admin.

Code §§ NR 113-114 (Feb. 2014).

       ¶49     Additionally, we have already rejected an attempt to
equate       application         of     a     contaminant        to     the     surrounding

environment with exhalation of an omnipresent gas.                                  Peace, 228

Wis. 2d at 137-38 (differentiating release of lead paint from

exhaling       carbon      dioxide).          A     reasonable        insured       would    not

understand exposure of water supplies to decomposing septage as

"an    everyday       activity        'gone    slightly,       but     not    surprisingly,

awry.'"      See Donaldson, 211 Wis. 2d at 233 (quoting Pipefitters,

976 F.2d at 1043-44); Langone, 300 Wis. 2d 742, ¶19.


                                               23
                                                                       No.    2012AP2521



    ¶50     Furthermore, that septage fits the ordinary meaning of

waste,     which    the   policies       expressly       list    as    a     pollutant,

supports our conclusion that septage is a pollutant when it

seeps into a water supply.               Septage is primarily composed of

human urine and feces.        The ordinary meanings of feces and urine

are, respectively, "'[w]aste matter eliminated from the bowels;

excrement,'"       and    "'[t]he     waste       product       secreted       by    the

kidneys.'"         Hirschhorn,     338    Wis. 2d    761,        ¶34   (quoting      The

American Heritage Dictionary 1965).                  The ordinary meaning of

waste includes, among other things, "'[t]he undigested residue

of food eliminated from the body; excrement.'"                         Id. (quoting

American     Heritage     Dictionary      2016).          In    Hirschhorn,         these

definitions of waste, urine, and feces supported our conclusion

that bat guano——which consists of bat urine and feces——was a

pollutant when it infiltrated a home.                Id., ¶¶34-36.            Likewise,

in the present case, these definitions support our conclusion

that decomposing septage is a pollutant when it seeps into a

water supply.
    ¶51     The     policies'      use     of    "contaminant"         in      defining

"pollutant" should have been clear notice to the Kuettels that

their    policies    would   not     cover      claims    involving        decomposing

septage's seepage into water supplies.11                       Stated otherwise, a


    11
       One could wonder what conversation transpired between the
insurance agent and the Kuettels yielding insurance policies
that do not cover harm caused in the course of their chosen
business. However, the actions of the insurers and their agents
are not before us.


                                          24
                                                                       No.    2012AP2521



reasonable insured would conclude that the policies would not

provide coverage on these facts.                  The key terms of the policies

are unambiguous.           See Peace, 228 Wis. 2d at 136.

     ¶52       Typically,      we    would     proceed    to      determine     whether

spraying       or    injecting       septage      on   farmland     constitutes      the

"discharge, dispersal, seepage, migration, release or escape of

'pollutants'."            See Donaldson, 211 Wis. 2d at 228.            However, the

parties    do       not    appeal    the   circuit     court's     ruling     that   the

Preislers' alleged loss resulted from the "discharge, dispersal,

seepage, migration, release or escape of" septage within the

meaning of the terms in the pollution exclusion clause of the

insurance policy.12           Accordingly, we conclude that the insureds'

claims    fall       within    the    unambiguous       terms     of   the    pollution

exclusion clauses.13

          C.    Summary Judgment Granted to Hastings and Secura

     ¶53       A final issue is whether the Preislers and Kuettels

have waived consideration              of the court of appeals' grant of

summary judgment to Hastings and Secura.                        Secura and Hastings




     12
       See Preisler, No. 2012AP2521, unpublished slip op., ¶39
(failing to challenge the circuit court's conclusion at the
court of appeals).
     13
       Typically, our third step is to analyze exceptions to the
exclusion to determine whether any reinstates coverage.      Am.
Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶24, 268
Wis. 2d 16, 673 N.W.2d 65.      The parties did not argue an
exception to the pollution exclusion applies; therefore, we need
not reach this step.


                                             25
                                                                     No.     2012AP2521



argued alternative grounds for summary judgment to the circuit

court and the court of appeals.14

     ¶54       The   circuit      court   did    not   address      Hastings'      and

Secura's alternative grounds for summary judgment.                           The only

responses to Hastings' and Secura's arguments to the court of

appeals     were     the   Preislers'     assertions     in    two    reply     brief

footnotes that Hastings and Secura were required to file cross-

appeals to raise alternative grounds for summary judgment.                         The

court     of    appeals    held    Preislers'      response    insufficient        and

separately dismissed claims against Hastings and Secura on their

alternative grounds.           See Preisler v. Kuettel's Septic Serv.,

LLC, No. 2012AP2521, unpublished slip op., ¶¶40-42 (Ct. App.

Jan. 14, 2014).

     ¶55       By supreme court rule, "[i]f a petition [for review]

is granted, the parties cannot raise or argue issues not set

forth in the petition unless ordered otherwise by the supreme

court."        Wis. Stat. § 809.62(6).          In their petitions for review,

the Preislers, the Kuettels, and Phil's Pumping framed the issue
as whether septage falls within the pollutant definition for

purposes of the pollution exclusion clause.

     ¶56       None of the petitioners petitioned the supreme court

to review summary judgments granted to Hastings and Secura on

alternative       grounds.        Hastings'     dismissal     was    based    on   the

     14
       Brief for Secura at 24-30, Preisler, No. 2012AP2421,
unpublished slip op. (Ct. App. Jan. 14, 2014); Brief for
Hastings at 33-36, Preisler, No. 2012AP2421, unpublished slip
op. (Ct. App. Jan. 14, 2014).


                                          26
                                                                            No.     2012AP2521



conclusion that the harm did not occur during the policy period.

Secura's dismissal was based on the conclusion that the harm did

not occur to the covered premises.                     In granting the petition, we

did not instruct the parties to brief or argue any additional

issues       pursuant        to   Wis.     Stat.      § 809.62(6).            Because      the

alternative grounds for summary judgment in favor of Hastings

and Secura were not raised as an issue on petition to us, the

Preislers,        the    Kuettels,       and    Phil's      Pumping   have        waived   our

consideration of those grounds for summary judgment.                               See Doyle

v.     Engelke,     219      Wis. 2d       277,      294,    580   N.W.2d      245    (1998)

(concluding that issues omitted from petitions for review may be

waived       if    we     do      not    direct       that     they    be      addressed).

Accordingly, these dismissals by the court of appeals become the

law of the case for further proceedings on Preislers' claims.

State v. Moeck, 2005 WI 57, ¶18, 280 Wis. 2d 277, 695 N.W.2d

783.

       ¶57     While we retain the inherent power to consider issues

beyond those raised in the petitions, we decline to do so in
this matter.        See Univest Corp. v. Gen. Split Corp., 148 Wis. 2d

29, 37, 435 N.W.2d 234 (1989).

                                    III.       CONCLUSION

       ¶58     We conclude that a reasonable insured would understand

that decomposing septage is a "contaminant" and therefore, a

"pollutant" as defined in the policies when it has decomposed

and    seeps      into   a     water    supply.        Accordingly,      we       affirm   the

decision of the court of appeals, which granted summary judgment
upon     its      conclusion        that       the    pollution       exclusion       clause
                                                27
                                                                No.     2012AP2521



precluded coverage for harm resulting from the Preislers' water

supply's contamination.

    ¶59     We   also   conclude    that     the    petitioners       failed    to

petition this court for review of summary judgments of dismissal

of their claims against Hastings and Secura.                   We decline to

consider issues not raised in petitions for review.                   Bodoh, 226

Wis. 2d     at   737;   Wis.   Stat.    § 809.62.        Accordingly,      those

dismissals are not before us.

    By    the    Court.—The    decision     of   the   court   of     appeals   is

affirmed.




                                       28
                                                                    No.   2012AP2521.awb


    ¶60     ANN    WALSH       BRADLEY,      J.    (concurring).          Although    I

agree with the majority's conclusion that septage is a pollutant

here,   I   part   ways        with   the    majority      when   it   undertakes    an

analysis of "occurrence."             Not only is the analysis unclear, it

is unnecessary to the decision, and inconsistent with Wilson

Mutual Ins. Co. v. Falk, 2014 WI 136, __ Wis. 2d __, __ N.W.2d

__, a case decided on the same day, on the same issue.

    ¶61     It is unclear whether the majority is embarking on a

cause   approach          or    damage       approach      in     determining      what

constitutes an occurrence.                  It quotes a leading authority on

insurance law, Couch on Insurance, for the premise that "[m]ost

courts have focused on the damage caused by the pollution and

have concluded that there is an occurrence when the insured did

not expect or intend the resultant damage."                       Majority op., ¶25

(quoting    9    Steven    Plitt      et    al.,   Couch    on    Insurance   §   127.4

(2008)).        It then discusses Am. Family Mut. Ins. Co. v. Am.

Girl, Inc., 2004 WI 2, ¶38, 268 Wis. 2d 16, 673 N.W.2d 65, which

looked at both cause and damage in its discussion of occurrence.
Id., ¶26.

    ¶62     Yet, after discussing these authorities, the majority

cites United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶¶12,

15, 304 Wis. 2d 750, 738 N.W.2d 578, for the premise that the

focus in an occurrence determination is on "the event or series

of events that allegedly caused the alleged bodily injury or

property damage."          Id., ¶27.         The majority then concludes that

the occurrence in this case was the "[s]eepage of decomposing
septage into the water supply" and "the resulting harm is water

                                             1
                                                                              No.       2012AP2521.awb


with elevated nitrate levels."                          Id., ¶28.            By including its

statement that the resulting harm was something other than the

occurrence,        the      majority       suggests         it    is        taking       the      cause

approach.           Without          a    definite          statement,             however,         the

juxtaposition          of         this     conclusion            with        the        conflicting

authorities renders the majority's analysis unclear.

       ¶63   Not       only        is     the      majority's           analysis           of      what

constitutes an occurrence unclear, but it is also unnecessary.

What    constitutes          an     occurrence           was     not     addressed           in     the

arguments presented by the parties.                              This issue was neither

briefed nor argued, and none of the leading cases on pollution

exclusions discuss it.                  See Hirschhorn v. Auto-Owners Ins. Co.,

2012    WI   20,       338    Wis.       2d     761,      809    N.W.2d        529;        Peace     v.

Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 596 N.W.2d 429

(1999); Donaldson v. Urban Land Interests, 211 Wis. 2d 224, 564

N.W.2d 728 (1997); Langone v. Am. Family Mut. Ins. Co., 2007 WI

App 121, 300 Wis. 2d 742; 731 N.W.2d 334; United States Fire

Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 476 N.W.2d 280 (Ct.
App. 1991).

       ¶64   Lastly,         if    the    majority         is    going       to     address        what

constitutes       an     occurrence,          it       should    do    so    in     a    consistent

manner.      As noted above, the majority appears to take a cause

approach     to    occurrence.                This      conflicts       with        the     apparent

approach embraced in Wilson Mutual, __ Wis. 2d __, ¶32, which we

also release today.                Wilson Mutual acknowledges that "Wisconsin

is in the jurisdictional majority in defining an occurrence as



                                                   2
                                                                  No.   2012AP2521.awb


unexpected   or    unintended      resultant         damage."     Which    precedent

should future attorneys follow?

    ¶65   Overall,      the     majority's           occurrence       discussion   is

problematic.      By creating unclear, unnecessary, and inconsistent

precedent,   the    court   does    not       live    up   to   its   obligation   to

provide a clear and concise articulation of a legal standard.

Accordingly, I respectfully concur.




                                          3
                                                                      No.    2012AP2521.ssa


       ¶66    SHIRLEY S. ABRAHAMSON, C.J.                 (dissenting).            I would

reverse the decision of the court of appeals.

       ¶67    This     case     requires       us   to    interpret         the    standard

pollution exclusion clauses in a commercial general liability

policy and a contractors' general liability policy.

       ¶68    The majority opinion frames the question presented in

this case as "whether decomposing septage is a pollutant as it

seeped into the Preislers' water supply."1                     The majority opinion

then holds that "a reasonable insured would conclude that the

policies would not provide coverage on these facts."2

       ¶69    The    majority         opinion's     approach     to    the        pollution

exclusion clauses in the instant case unnecessarily departs from

precedent,      undercuts        the   limiting     principles    our        prior      cases

have       applied   to    pollution          exclusion    clauses,         and     further

confuses this murky area of the law.

       ¶70    The      majority         opinion      needlessly        decides          what

"occurrence" triggered coverage in the instant case and further

complicates      the      law    in    this    area.       The   question          of   what
constitutes an occurrence need not be decided to resolve the

question presented.             The occurrence issue was neither raised nor

briefed by the parties and was not ruled on by the circuit court

or the court of appeals.                 The issue is complex.3                   The court

       1
           Majority op., ¶31.
       2
           Id., ¶51.
       3
       Steven Plitt et al., 9 Couch on Insurance § 126:27 (1997)
("Whether there has been an accident or occurrence to trigger
insurance coverage has been a much litigated issue.").


                                              1
                                                                    No.   2012AP2521.ssa


should   not    delve    into    it   without       the   benefit     of    briefs    or

argument.

     ¶71    Furthermore,        the   majority       opinion's      discussions       of

what constitutes an occurrence and of whether a substance is a

pollutant are inconsistent with the court's approach to those

issues     in   Wilson   Mutual       v.    Falk,    2014      WI   136,     ¶38,     ___

Wis. 2d ___, ___ N.W.2d ___.               I write on substantially similar

issues in my dissent in Wilson Mutual.                    My dissents in Wilson

Mutual and in the instant case should be read together.

     ¶72    I conclude that a reasonable person in the position of

the insureds, two companies in the business of hauling, storing,

and disposing of septage, would not consider septage a pollutant

under    the    pollution       exclusion      clause     of    general      liability

policies they purchased to cover liability for damage caused by

their septic business operations.

     ¶73    If the majority is unwilling to honor the reasonable

expectations of these insured septic companies, then I conclude

the case should be remanded to the circuit court to allow the
parties to present evidence regarding the insureds' expectations

of   coverage      and    the      objective        reasonableness          of      those

expectations.4

     ¶74    Accordingly, I dissent.

                                           I

     4
       See majority op., ¶51 n.11 ("One could wonder what
conversation transpired between the insurance agent and the
Kuettels yielding insurance policies that do not cover harm
caused in the course of their chosen business.      However, the
actions of the insurers and their agents are not before us.").


                                           2
                                                                        No.   2012AP2521.ssa


       ¶75        The present case involves two insured companies and

two insurance policies.5

       ¶76        Kuettel's Septic Service, LLC (Kuettel's) is a company

that       hauls,     stores,       and    disposes     of   septage.            Kuettel's

sometimes disposes of septage by spreading it as fertilizer on

farmland.          Kuettel's has periodically hired Phil's Pumping and

Fab,       Inc.    (Phil's      Pumping)    to    dispose    of    septage.         Phil's

Pumping sometimes disposes of the septage by spreading it as

fertilizer on farmland.

       ¶77        These    septic    companies       purchased     general       liability

policies      to     insure      their    business    operations,        that    is,   they

purchased insurance policies to cover damage they might cause in

the ordinary course of their hauling, storing, and disposing of

septage.

       ¶78        Kuettel's purchased a contractors' general liability

policy       from     Regent      Insurance       Company.        The     Regent    policy

contains the following provisions:

       B. EXCLUSIONS

             1. Applicable to Contractors Liability Coverage

                   This insurance does not apply to:

                    . . . .

                   f. Pollution

                          (1)   "Bodily injury" or "property damage"
                                arising out of the actual, alleged or

       5
       As the majority opinion points out, there were other
insurers and other insurance contracts involved at earlier
stages of the litigation.


                                              3
                                                     No.   2012AP2521.ssa

                        threatened     discharge,   dispersal,
                        seepage, migration, release or escape
                        of "pollutants" . . . .

    F. LIABILITY AND MEDICAL EXPENSES DEFINITIONS

           . . . .

          14. "Occurrence"  means   an    accident,  including
              continuous    or     repeated     exposure    to
              substantially    the   same    general   harmful
              conditions.

           . . . .

          16. "Pollutants" means any solid, liquid, gaseous
              or thermal irritant or contaminant, including
              smoke, vapor, soot, fumes, acids, alkalis,
              chemicals and waste. Waste includes materials
              to be recycled, reconditioned or reclaimed.
    ¶79    Phil's      Pumping   purchased   a   commercial     general

liability policy from Rural Mutual Insurance Company.         The Rural

Mutual policy contains the following provisions:

    2. Exclusions

          This insurance does not apply to:

           . . . .

          f. Pollution

             (1)     "Bodily   injury"   or "property   damage,"
                     arising out of the actual, alleged, or
                     threatened discharge, dispersal, seepage,
                     migration,     release  or     escape    of
                     "pollutants" . . . .

    SECTION V - DEFINITIONS

           . . . .

          13. "Occurrence"  means   an    accident,  including
              continuous    or     repeated     exposure    to
              substantially    the   same    general   harmful
              conditions.

           . . . .
                                    4
                                                                      No.   2012AP2521.ssa

           15. "Pollutants" mean any solid, liquid, gaseous or
               thermal irritant or contaminant, including
               smoke, vapor, soot, fumes, acids, alkalis,
               chemicals and waste. Waste includes materials
               to be recycled, reconditioned or reclaimed.
    ¶80       For several years, Kuettel's and Phil's Pumping spread

septage on Fred and Tina Preisler's farmland.                        In 2008, when the

Regent and Rural Mutual insurance policies described above were

in effect, the Preislers discovered that septage had seeped into

their well and contaminated their water supply, causing cattle

loss and other problems on their farm.

    ¶81       The    Preislers     sued     Kuettel's          and    Phil's      Pumping,

alleging      that    the   companies       negligently            stored   and     spread

septage,    resulting       in   nuisance      and   trespass.           Kuettel's     and

Phil's Pumping contend that septage is not a pollutant under the

pollution exclusion clauses at issue and thus that Regent and

Rural Mutual should defend and indemnify under the policies.

                                          II

    ¶82       Applying the court's general principles of insurance

contract interpretation6 to the facts of the present case, I

conclude      that   a   reasonable   person         in   the      position    of   these

insured septic companies would not consider septage a pollutant

under   the    pollution     exclusion        clause      of   a     general   liability

policy purchased to cover liability for damage caused by their

septic business operations.


    6
       See Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶¶15-
22, 257 Wis. 2d 80, 654 N.W.2d 225.         I set forth these
principles at length in Wilson Mutual Insurance Co. v. Falk,
2014 WI 136, ¶___, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson,
C.J., dissenting).


                                          5
                                                                     No.    2012AP2521.ssa


      ¶83       Excrement may be waste, an irritant, or a contaminant,

but septage is a valuable product.                    It is a fertilizer used to

enrich the soil.           When it is used to enrich the soil, it is no

longer waste, an irritant, or a contaminant.

      ¶84       Because we construe insurance contract provisions as

would     a     reasonable      insured,       we     have    held     that    pollution

exclusion        clauses   do   not    apply    when       "injuries     result[]     from

everyday activities gone slightly, but not surprisingly, awry"

or        when        a     reasonable              policyholder         "would        not

characterize . . . [the] incident[] as pollution."7

      ¶85       To septic companies like Kuettel's and Phil's Pumping,

storing       and     spreading       septage        are     indisputably       everyday

activities.          Septic companies store septage and often spread

septage on farmland.            Seepage is the whole point of spreading

septage       on    farmland.     If     the    seepage       of   septage     into    the

Preislers' well resulted from the storage of septage or the

spreading of septage on farmland, then it clearly resulted from

an   everyday        activity    "gone     slightly,         but   not     surprisingly,
awry."8

      ¶86       A court keeps the underlying purpose of the insurance

in mind when construing policy provisions.9                    Kuettel's and Phil's
      7
       Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224,
233, 564 N.W.2d 728 (1997).
      8
          Id.
      9
       Frost, 257 Wis. 2d 80, ¶22 ("[I]n construing an insurance
policy as it is understood by a reasonable person in the
position of the insured, a court may consider the purpose or
subject matter of the insurance, the situation of the parties,
and the circumstances surrounding the making of the contract.").

                                            6
                                                                      No.    2012AP2521.ssa


Pumping    purchased          these       general    liability     policies       to    insure

their septic business operations.                     The insurance companies knew

the nature of the business these companies are engaged in from

their company names and probably from information submitted in

their insurance policy applications.                       "Certainly an insured who

purchases [commercial general liability] insurance expects to be

covered for ordinary negligence in the course of its insured

operations."10

     ¶87       The     fact        that     "[h]auling,      storing,      and     applying

septage are activities regulated by both the DNR and the United

States    Environmental             Protection       Agency"     further     supports       my

conclusion that Kuettel's and Phil's Pumping were aware of the

risks     of    working        with       septage    and    thus    purchased          general

liability insurance policies to cover their liability for damage

caused    by    their        septic       business   operations     when     an    everyday

activity went slightly but not surprisingly awry.11

     ¶88       Thus, a reasonable person in the position of these

insured septic companies would expect coverage for damage caused
by   septage         under     a    general     liability      policy       it    purchased

precisely in order to cover damage caused by its septic business

operations.          An insured's reasonable expectations of coverage

must be honored.         I would not bar coverage.




     10
       Keggi v. Northbrook Prop. & Cas. Ins. Co., 13 P.3d 785,
¶29 (Ariz. 2000).
     11
          Majority op., ¶43.


                                                7
                                                                           No.   2012AP2521.ssa


       ¶89     The    majority       opinion        is     problematic           for    several

reasons.

       ¶90     First, as I stated previously, the majority opinion

has an unnecessary discussion of occurrence, an issue that is

not relevant and was not briefed or argued by the parties.

       ¶91     Second,     the   majority's             discussion    of     occurrence        is

inconsistent with the discussion of occurrence in Wilson Mutual.

It remains unclear whether this court considers the cause of the

damage or the damage itself to be the occurrence.

       ¶92     The majority opinion suggests that it is taking the

cause approach.12          The Preislers' complaint alleges negligence in

the    storing       and   spreading     of    septage.            Couldn't       the    causal

event,       and    thus   the      accident       for     which     the     insureds        seek

coverage,      be    the     negligent    storing          or    spreading       of    septage,

rather than seepage?

       ¶93     In her concurring opinion in the instant case, Justice

Bradley       persuasively       explains          that     the      majority          opinion's

discussion           of      occurrence            is      unnecessary,            internally
contradictory,13 and inconsistent with                          Wilson Mutual v. Falk,

2014    WI    136,    ¶32,    ___    Wis. 2d ___,          ___    N.W.2d ___.            I   join

Justice Bradley's criticism of the majority opinion's discussion

of "occurrence."



       12
            Majority op., ¶28.
       13
       "It is unclear whether the majority is embarking on a
cause   approach  or   damage  approach   in  determining   what
constitutes an occurrence." Justice Bradley's concurrence, ¶61.


                                               8
                                                                          No.    2012AP2521.ssa


      ¶94      Third, the essence of the majority's analysis is that

septage becomes a pollutant under the policy when it pollutes.

Under      this      reasoning,      every       substance     that       pollutes          is     a

pollutant.          This reasoning simply begs the question.

      ¶95      By    contending      that    a    substance    becomes           a     pollutant

under the policy at the moment the substance contaminates, the

majority opinion allows the pollution exclusion clause to extend

far beyond the limited scope we have permitted in our prior

cases, leading to absurd results.

      ¶96      The majority's approach ignores the fact that "there

is virtually no substance or chemical in existence that would

not irritate or damage some person or property."14                              As this court

has     said      again    and     again,    "[t]he      reach       of     the      pollution

exclusion clause must be circumscribed by reasonableness, lest

the   contractual          promise    of     coverage     be     reduced          to    a    dead

letter."15

      ¶97      Fourth,     Wilson     Mutual       and   the   instant           opinion         are

inconsistent          in   their     test    for     whether     a        substance         is     a
pollutant under a standard pollution exclusion clause, although

both look to whether a reasonable person in the position of the

insured would consider the substance a pollutant.




      14
       Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters
Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037,
1043 (7th Cir. 1992)).
      15
           Donaldson, 211 Wis. 2d at 233.


                                              9
                                                                      No.       2012AP2521.ssa


     ¶98    The     instant     case    simply     asks   "whether          a     reasonable

insured would consider decomposing septage to be a pollutant

when it seeps into a water supply."16

     ¶99    Wilson Mutual sets forth the following two-part test

for whether a reasonable insured would consider a substance a

pollutant:

     [A] reasonable insured would consider a substance to
     be a pollutant if (1) the substance is largely
     undesirable and not universally present in the context
     of the occurrence that the insured seeks coverage for;
     and (2) a reasonable insured would consider the
     substance causing the harm involved in the occurrence
     to be a pollutant.17
     ¶100 Does        the     Wilson    Mutual      two-part        test    survive       the

opinion in the present case?

     ¶101 Fifth, as I have noted, the parties in the instant

case are here on summary judgment.                 If the majority is unwilling

to   adhere      to     our    longstanding        practice         of     honoring       the

expectations of the reasonable insured, then I would remand the

case to the circuit court so the parties can produce evidence

regarding     the       insureds'      expectations       of    coverage            and   the
objective     reasonableness           of     those    expectations.                 Summary

judgment should not be granted before the parties have that

opportunity.

     ¶102 In sum, I conclude that a reasonable person in the

position    of    the    insureds,      two      companies     in    the    business       of


     16
          Majority op., ¶40.
     17
       Wilson Mutual v. Falk, 2014 WI 136, ¶38, ___ Wis. 2d ___,
___ N.W.2d ___.


                                            10
                                                         No.   2012AP2521.ssa


hauling, storing, and disposing of septage, would not consider

septage   a   pollutant   under   the    pollution   exclusion   clause   of

general liability policies they purchased to cover liability for

damage caused by their septic business operations.

    ¶103 For the reasons set forth, I dissent.




                                    11
    No.   2012AP2521.ssa




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