                                                            2014 WI 136

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2013AP691 & 2013AP776
COMPLETE TITLE:        Wilson Mutual Insurance Company,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Robert Falk and Jane Falk,
                                 Defendants-Appellants,
                       State of Wisconsin Department of Natural
                       Resources, Lee
                       Laatsch, Michael Jante, Jessica Jante, Ruth
                       Hetzel, Jeff
                       Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy
                       Lorge, Paul
                       Wilkins, Addicus Jante and Trilogy Health
                       Insurance Inc.,
                                 Defendants.
                       ------------------------------------------------
                       Wilson Mutual Insurance Company,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Robert Falk, Jane Falk, State of Wisconsin
                       Department of
                       Natural Resources, Lee Laatsch, Ruth Hetzel,
                       Paul Wilkins
                       and Trilogy Health Insurance, Inc.,
                                 Defendants,
                       Michael Jante, Jessica Jante, Jeff Wiedmeyer,
                       Kimber Wiedmeyer, Paul Lorge, Tammy Lorge and
                       Addicus Jante,
                                 Defendants-Appellants.


                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                        (Reported at 352 Wis. 2d 461, 844 N.W.2d 380)
                                  (Ct. App. 2014 – Published)
                                    PDC No.: 2014 WI App 10

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

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Washington
   JUDGE:              Todd K. Martens

JUSTICES:
   CONCURRED:          BRADLEY, J., concurs. (Opinion filed.)
  DISSENTED:            ABRAHAMSON, C.J., dissents. (Opinion filed.)
  NOT PARTICIPATING:    PROSSER, J., did not participate.

ATTORNEYS:
       For the plaintiff-respondent-petitioner, there were briefs
by Ryan R. Graff and Nash, Spindler, Grimstad & McCracken LLP,
Manitowoc. Oral argument by Ryan R. Graff.


       For defendants-appellants Robert and Jane Falk, there was a
brief    by   Ronald      R.    Ragatz    and   DeWitt   Ross    &   Stevens   S.C.,
Madison. Oral argument by Ronald R. Ragatz.


       For     defendants-appellants-respondents                 Michael       Jante,
Jessica Jante, Addicus Jante, Jeff Wiedmeyer, Kimber Wiedmeyer,
Paul Lorge, and Tammy Lorge, there was a brief by Ryan J. Hetzel
and Hetzel & Nelson, LLC, West Bend. Oral argument by Ryan J.
Hetzel.


        An amicus curiae brief was filed by Laura A. Foggan and
Wiley Rein LLP, Washington, D.C.; and Robert C. Burrell, Joshua
B.   Cronin,      and     Borgelt,       Powell,    Peterson    &    Frauen,   S.C.,
Milwaukee,      on     behalf    of   Complex      Insurance    Claims   Litigation
Association.


       An amicus curiae brief was filed by Timothy M. Barber and
Axley Brynelson LLP, Madison, on behalf of Wisconsin Insurance
Alliance.




                                            2
                                                                          2014 WI 136
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2013AP691 & 2013AP776
(L.C. No.        2011CV1448)

STATE OF WISCONSIN                               :            IN SUPREME COURT

Wilson Mutual Insurance Company,

                  Plaintiff-Respondent-Petitioner,

         v.

Robert Falk and Jane Falk,

                  Defendants-Appellants,

State of Wisconsin Department of Natural                                FILED
Resources, Lee

Laatsch, Michael Jante, Jessica Jante, Ruth                        DEC 30, 2014
Hetzel, Jeff
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Wiedmeyer, Kimber Wiedmeyer, Paul Lorge, Tammy
Lorge, Paul

Wilkins, Addicus Jante and Trilogy Health
Insurance Inc.,

                  Defendants.


----------------------------------------------


Wilson Mutual Insurance Company,

                  Plaintiff-Respondent-Petitioner,

         v.

Robert Falk, Jane Falk, State of Wisconsin
Department of
Natural Resources, Lee Laatsch, Ruth Hetzel,
Paul Wilkins

and Trilogy Health Insurance, Inc.,

           Defendants,

Michael Jante, Jessica Jante, Jeff Wiedmeyer,
Kimber

Wiedmeyer, Paul Lorge, Tammy Lorge and Addicus
Jante,

           Defendants-Appellants.




    REVIEW of a decision of the Court of Appeals.            Reversed and

cause remanded.



    ¶1     MICHAEL   J.   GABLEMAN,       J.   We   review   a   published

decision of the court of appeals1 reversing the Washington County

circuit court's order granting declaratory judgment in favor of

Wilson Mutual Insurance Company ("Wilson Mutual").2          The circuit

court concluded that Wilson Mutual had no duty to defend or

indemnify Robert and Jane Falk ("the Falks") against allegations

that in 2011 they negligently spread manure3 on their property
    1
       Wilson Mut. Ins. Co. v. Falk, 2014 WI App 10, 352 Wis. 2d
461, 844 N.W.2d 380.
    2
        The Honorable Todd K. Martens, presiding.
    3
       The injured parties further alleged that nitrates              and
bacteria from the cow manure were also found in their wells.



                                      2
                                     No.   Error! Reference source not found.



and thereby polluted their neighbors' wells because the Wilson

Mutual policy contained an exclusion for pollution.4                The court

of appeals reversed, concluding that a reasonable farmer would

consider cow manure to be "liquid gold" and not a pollutant when

applied to a farm field.       Wilson Mut. Ins. Co. v. Falk, 2014 WI

App 10, ¶¶1, 3, 352 Wis. 2d 461, 844 N.W.2d 380.

      ¶2   Three     issues   are   presented   for      our   consideration:

1) whether a pollution exclusion in Wilson Mutual's General Farm

Coverage Liability policy excludes coverage for harm caused by

the   seepage   of   cow   manure   into   wells;   2)    whether   the   Farm

Chemicals Limited Liability         Endorsement provides coverage for

physical injury to property caused by the seepage of cow manure

into wells; and 3) whether the incidental coverages section of

Wilson Mutual's General Farm Coverage Liability policy provides

indemnity coverage for and a duty to defend against harm caused

by the seepage of cow manure into wells.


      4
       The circuit court concluded Wilson Mutual had no duty to
defend or indemnify the Falks because "[a] reasonable person in
the position of the Falks would understand cow manure to be
waste," and thus the pollution exclusion excluded coverage. The
circuit court further concluded (1) the Farm Chemicals Liability
Endorsement did not provide coverage because the endorsement was
designed to cover injury to property caused by chemicals, and
manure is not a chemical; (2) the endorsement "covers only
physical injury to property;" thus, "it would not cover any
injures to Addicus Jante" and would not cover "contamination of
water in the wells" because the policy excludes coverage from
loss of use damages;" and (3) "even if contamination of well
water did qualify as physical injury to property" the "costs of
clean up, new wells, replacement water, [and] remediation are
all the types of costs specially covered by the" exclusion.


                                      3
                                               No.        Error! Reference source not found.



       ¶3     We hold that the pollution exclusion clause in Wilson

Mutual's General Farm Coverage Liability policy issued to the

Falks      unambiguously      excludes         coverage         for    well    contamination

caused by the seepage of cow manure.                            First, we conclude that

cow manure falls unambiguously within the policy's definition of

"pollutants" when it enters a well.                             Second, we conclude the

Farm Chemicals Limited Liability Endorsement likewise excludes

coverage      for    "physical       injury          to     property"       resulting       from

pollutants.         Finally, we conclude that the "Damage to Property

of     Others"      clause    under       the        incidental        coverages       section

provides incidental coverage up to $500 for each unique well

that has allegedly been contaminated by the Falks' manure, and

Wilson Mutual has a duty to defend.                          Accordingly, the decision

of   the    court    of    appeals    is       reversed,         and   we     remand   to    the

circuit      court    for     further      proceedings             consistent      with      our

holding.

             I.      FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶4     The Falks are owners and operators of a dairy farm in
West    Bend,     Wisconsin,       located         in      Washington       County.         Paul

Wilkens, Karen Wilkens, Lee Laatsch, Ruth Hetzel, Michael Jante,

Jessica Jante, Addicus Jante, James Wiedmeyer, Kim Wiedmeyer,

Paul Lorge, and Tammy Lorge (collectively the "injured parties")

are all neighbors of the Falks.

       ¶5     In early 2011, the Falks spread liquid cow manure onto

their    farm     fields     for   the    purpose          of    fertilization.         In    an

attempt      to   safely     apply       the    manure,          the   Falks     obtained      a
nutrient management plan prepared by a certified crop agronomist
                                               4
                                          No.     Error! Reference source not found.



and   approved        by    the   Washington        County     Land        and     Water

Conservation Department.

      ¶6    In    a    letter     dated    May     23,    2011,      the    Wisconsin

Department of Natural Resources ("DNR") informed the Falks it

had   received    several       well    contamination       complaints      from     the

Falks' neighbors.          The DNR investigated the matter and concluded

that manure from the Falks' farm leeched into and contaminated

wells owned by the injured parties.                 The contamination made the

injured     parties'        private     wells      unusable       and      the     water

undrinkable.      The injured parties alleged that manure, nitrates,

and   bacteria,       including    E.    coli,5    seeped     into      their     wells.

Additionally, Addicus Jante, a minor, claimed that he contracted

bacterium avium6 from drinking the contaminated water and, as a

result, was hospitalized and underwent surgery.

      ¶7    The DNR used grant money to provide temporary clean

water to Laatsch and Hetzel and to replace their wells.                          The DNR

subsequently requested reimbursement from the Falks for these

expenses.     The Lorges, Jantes, and Wiedmeyers did not qualify

      5
       "Escherichia coli (abbreviated as E. coli) are a large and
diverse group of bacteria. Although most strains of E. coli are
harmless, others can make you sick.    Some kinds of E. coli can
cause diarrhea, while others cause urinary tract infections,
respiratory illness and pneumonia, and other illnesses."       E.
Coli    (Escherichia   coli),   Ctrs.    for   Disease   Control,
http://www.cdc.gov/ecoli/ (last visited Oct. 15, 2014) (emphasis
omitted).
      6
       Bacterium avium is a pulmonary disease.      Mycobacterium
avium Complex, Ctrs. for Disease Control, (Oct. 12, 2005)
http://www.cdc.gov/ncidod/dbmd/diseaseinfo/mycobacteriumavium_t.
htm.


                                          5
                                        No.   Error! Reference source not found.



for a DNR grant, and had to pay out of pocket.                The Wilkens paid

out of pocket to replace their well and do not seek repayment

from the Falks.

    ¶8      Wilson    Mutual    sold    two   farmowner       policies   to     the

Falks, the first insuring the period from April 10, 2010, to

April 10, 2011, and the second insuring the period from April

10, 2011, to April 10, 2012.           The policies were identical in all

material respects and we therefore will refer to the policies

collectively as "the Wilson Mutual policy."                 The Wilson Mutual

policy was titled: "Personal Liability Coverage (Farm)" and was

designed for owners and operators of farms.

    ¶9      The Wilson Mutual policy             excluded general liability

coverage    for     both   "bodily     injury"     and/or   "property    damage"

"which     results     from    the     actual,     alleged,     or    threatened

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

'pollutants' into or upon land, water, or air."                       The policy

stated:

    "We" [Wilson Mutual] do not pay for a loss if one or
    more of the following excluded events apply to the
    loss, regardless of other causes or events that
    contribute to or aggravate the loss, whether such
    causes or events act to produce the loss before, at
    the same time as, or after the excluded event.
              . . .

    l. "bodily injury" or "property damage" which results
    from the actual, alleged, or threatened discharge,
    dispersal, seepage, migration, release, or escape of
    "pollutants" into or upon land, water, or air . . .
    ¶10     "Pollutant" is defined earlier in the policy as: "any
solid,    liquid,    gaseous,   thermal,      or    radioactive      irritant   or

                                         6
                                     No.   Error! Reference source not found.



contaminant, including acids, alkalis, chemicals, fumes, smoke,

soot,   vapor,   and    waste.   'Waste'     includes   materials    to   be

recycled, reclaimed, or reconditioned, as well as disposed of."



    ¶11    In addition to general liability coverage, the Wilson

Mutual policy also included an endorsement for "Farm Chemicals

Limited Liability" and an "Incidental Coverages" section.

    ¶12    The   Farm    Chemicals   Endorsement    reads,    in   relevant

part:

    Farm Chemicals Limited Liability. "We" pay those sums
    which an "insured" becomes legally obligated to pay as
    damages for physical injury to property if:

    1. The injury is caused by the discharge, dispersal,
    release, or escape of chemicals, liquids, or gases
    into the air from the "insured premises". The injury
    must be caused by chemicals, liquids, or gases that
    the "insured" has used in the normal and usual
    "farming" operation; and

    2. The chemicals, liquids, or gases have not been
    discharged, dispersed, or released from an aircraft.
            . . .

    Physical   injury   does  not   include   indirect   or
    consequential damages such as loss of use of soil,
    animals, crops, or other property or loss of market.

    This coverage does not apply to physical injury to
    property arising out of "farming" operations that are
    in violation of an ordinance or law.

    This coverage does not apply to any loss, cost, or
    expense arising out of any requests, demands, orders,
    claims, or suits that the "insured" or others test
    for, monitor, clean up, remove, contain, treat,
    detoxify, neutralize, or in any way respond to or
    assess the effects of pollutants, chemicals, liquids,
    or gases.

                                     7
                                        No.     Error! Reference source not found.



      ¶13   "Damage to Property of Others" under the incidental

coverages section reads, in relevant part:

      1. Damage to Property of Others—Regardless of an
      "insured's" legal liability, "we" pay for property of
      others damaged by an "insured", or "we" repair or
      replace the property to the extent practical, with
      property of like kind or quality.     "Our" limit for
      this coverage is $500 per occurrence.
      ¶14   On December 5, 2011, Wilson Mutual filed a declaratory

judgment motion in the Washington County circuit court against

the Falks, the injured parties, and the DNR to determine whether

the   Wilson     Mutual     policy    covered       the    manure    contamination

alleged by the DNR and the injured parties.                 On August 29, 2012,

Wilson Mutual filed a motion for declaratory judgment claiming

it had a duty to neither defend the Falks, nor provide coverage

with respect to the injured parties' well contamination.                          On

October 2, 2012, the Falks filed a motion for summary judgment,

arguing that Wilson Mutual had a duty to defend and indemnify

the Falks against claims arising from the alleged groundwater

contamination.

      ¶15   On    January    23,     2013,    the    circuit    court   issued    a

decision    and     order     granting        Wilson      Mutual's    motion     for

declaratory judgment, concluding that the Wilson Mutual policy

did not provide coverage for the Falks' manure contamination.

Based on dictionary definitions of "waste" and "pollutant," the

trial court determined that manure is unambiguously a pollutant.

The circuit court explained:

      Indeed, [spreading manure] is a form of recycling—one
      of the actions performed on "waste," a named pollutant

                                         8
                                             No.     Error! Reference source not found.


      as defined in the Policies. . . . Many substances
      serve useful purposes in many contexts, yet can be
      characterized as pollutants in another. Bleach cleans
      and disinfects a countertop; yet when poured into a
      stream it is deadly to the fish living in the water.
      DDT was an effective pesticide; yet it poisoned
      raptors who ate rodents exposed to it. . . . A
      reasonable person in the position of the Falks would
      understand cow manure to be waste.
      ¶16      The circuit court also found that the Farm Chemicals

Limited     Liability      Endorsement            did     not    apply      because       "the

Endorsement was designed to cover injury to property caused by
chemicals, not manure."              "A reasonable person in the position of

the   Falks      would    not    have       understood          cow   manure      to   be    a

chemical."        Moreover,          "the   endorsement         covers   only      physical

injury    to    property,       so    it    would    not    cover     any    injuries       to

Addicus Jante."          Likewise, "contamination of the water in the

wells does not qualify as physical injury to property, but is

instead,    'indirect      or    consequential           damages      such   as    loss     of

use.'"         Finally,     the        circuit      court        concluded        "even     if

contamination of well water did qualify as physical injury to

property" the "costs of clean up, new wells, replacement water,

[and] remediation are all the types of costs specially covered
by the" exclusion.          The circuit court did not address whether

the incidental coverages section provided coverage.

      ¶17      On March    22, 2013,         both       the Falks and the injured

parties appealed this decision.                   On December 11, 2013, the court

of appeals reversed the circuit court's judgment and concluded

that manure was not a pollutant.                        Falk, 352 Wis. 2d 461, ¶3.
The court of appeals reasoned that precedent required the court


                                              9
                                             No.     Error! Reference source not found.



"to 'consider the nature of the substance involved' [in order]

to determine whether a pollution exclusion precluded coverage."

Id., ¶13 (quoting Langone v. Am. Family Mut. Ins. Co., 2007 WI

App 121, ¶17, 300 Wis. 2d 742, 731 N.W.2d 334).                                    The court

recognized that, based on the insurance policy's language alone,

manure might be a "pollutant" because manure can be both an

irritant and a contaminant.              Id., ¶10.          However, "[the] supreme

court has instructed that we must do more than rely on this

'undeniably     broad'        and   'virtually           boundless'       language,        'for

there is virtually no substance or chemical in existence that

would not irritate or damage some person or property.'"                                     Id.

(quoting Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶30,

338 Wis. 2d 761, 809 N.W.2d 529).

      ¶18     Accordingly, the court of appeals concluded manure is

not   a   pollutant     because       manure       "has    long    been      a    normal    and

necessary part of the operation of a dairy farm," and to a

reasonable farmer manure is "liquid gold."                        Id., ¶¶1, 15.         "Used

improperly,      both    manure       and     milk        can    cause       irritation         or
contamination.          The    fact    that       milk     can    cause      irritation         or

contamination     in     certain      circumstances             does   not    equate     to      a

reasonable person defining milk as a 'pollutant.'                                A reasonable

farmer    likewise      does    not    see    manure       as    either      'waste'       or    a

'pollutant.'"        Id., ¶3.         The court of appeals did not address

any   other    issues     because      its     determination           that       the   Falks'

manure is not a pollutant was dispositive.                        Id., ¶17.

      ¶19     Wilson Mutual petitioned this court for review, which
we granted on April 17, 2014.
                                             10
                                         No.    Error! Reference source not found.



                             II. STANDARD OF REVIEW

       ¶20   The    interpretation       of    an    insurance      contract    is    a

question of law that this court reviews independently.                         Siebert

v. Wis. Am. Mut. Ins. Co., 2011 WI 35, ¶28, 333 Wis. 2d 546, 797

N.W.2d 484.

                                 III. DISCUSSION

       ¶21   We    first    consider     whether      the   pollution      exclusion

contained in the Wilson Mutual policy unambiguously excludes

coverage for well contamination caused by the seepage of cow

manure, and conclude that it does.                  We then address whether the

Farm    Chemicals      Limited     Liability        Endorsement     also    excludes

coverage,     and    conclude     that   it    does    as   well.      Finally,       we

examine      whether       the   incidental     coverages      section      provides

indemnity coverage and a duty to defend and conclude that it

does.    We therefore reverse the court of appeals.

   A.     The Pollution Exclusion Contained in the Wilson Mutual

   Policy's General Farm Liability Coverage Excludes Coverage.

       ¶22   This    case    requires     us   to     interpret     the    pollution
exclusion clause as it applies to manure and identify whether

manure is a pollutant within the meaning of the Wilson Mutual

pollution exclusion.

                     i.      Applicable Legal Principles

       ¶23   Our goal in interpreting an insurance policy is to

ascertain and carry out the parties' intentions.                    Id., ¶31.        "To

that end, we interpret policy language according to its plain

and ordinary meaning as understood by a reasonable person in the


                                         11
                                        No.   Error! Reference source not found.



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

(citations omitted).

       ¶24    Terms    or    phrases    in    an   insurance    contract    are

ambiguous only "if they are fairly susceptible to more than one

reasonable interpretation."            Id., ¶23; Peace ex rel. Lerner v.

Nw. Nat'l Ins. Co., 228 Wis. 2d 106, 121, 596 N.W.2d 429 (1999).

If policy language is ambiguous, the contract will be narrowly

construed against the insurer as its drafter.7                 State Farm Mut.

Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶46, 275 Wis. 2d 35,

683 N.W.2d 75.        However, an ambiguity exists only where a policy

is subject to more than one reasonable interpretation.                     Id.,

¶48.       We will not embrace any plausible interpretation created

by an insured for the purposes of litigation.                  Hirschhorn, 338

Wis. 2d 761, ¶23.           Similarly, "[t]he mere fact that a word has

more than one dictionary meaning, or that the parties disagree

about the meaning, does not necessarily make the word ambiguous

if the court concludes that only one meaning applies in the

context and comports with the parties' objectively reasonable
expectations."        Ruff v. Graziano, 220 Wis. 2d 513, 524, 583

N.W.2d 185 (Ct. App. 1998) (quoting Sprangers v. Greatway Ins.

Co., 182 Wis. 2d 521, 537, 514 N.W.2d 1 (1994)).                 Likewise, the


       7
       This is known as the doctrine of contra proferentem.
Contra proferentem is Latin for "against the offeror," and means
that when "interpreting documents, ambiguities are to be
construed unfavorably to the drafter."    Black's Law Dictionary
337 (9th ed. 2009); see also Donaldson v. Urban Land Interests,
Inc., 211 Wis. 2d 224, 230, 564 N.W.2d 728 (1997).


                                        12
                                           No.     Error! Reference source not found.



fact that different courts have come to different conclusions

regarding a term in a policy does not render a term ambiguous,

or else "only the first interpretation by a court would count."

Peace, 228 Wis. 2d at 136.

    ¶25     Absent a finding of ambiguity, this court will not

apply the rules of construction to rewrite the language of an

insurance policy to bind an insurer to a risk which it did not

contemplate      and   for    which     it       did     not     receive    a     premium.

Hirschhorn,      338   Wis.    2d   761,     ¶24.         As     such,     an    insurance

policy's pollution exclusion clause is ambiguous if a reasonable

insured could expect coverage.             Langone, 300 Wis. 2d 742, ¶21.

  ii.    The Occurrence for Which the Falks Seek Coverage is the

                       Seepage of Manure into Wells.

    ¶26     In    determining       whether        coverage        exists       under   an

insurance policy, we follow three steps.                       First, we must examine

the facts of the insured's claim to determine whether the policy

makes an initial grant of coverage.                    Am. Family Mut. Ins. Co. v.

Am. Girl, Inc., 2004 WI 2, ¶24, 268 Wis. 2d 16, 673 N.W.2d 65.
The analysis ends there if the policy clearly does not cover the

claim.     Id.    Second, if the claim triggers an initial grant of

coverage    we   examine      whether    any       of    the     policy's       exclusions

preclude    coverage.         Id.     Third,       if     an     exclusion       precludes

coverage, we analyze exceptions to the exclusion to determine

whether any reinstate coverage.              Id.

    ¶27     Coverage is triggered by an occurrence.                        We determine

an insurer's duty to defend "by comparing the allegations of the
complaint to the terms of the insurance policy."                                Estate of
                                         13
                                           No.        Error! Reference source not found.



Sustache v. Am. Family Mut. Ins. Co., 2008 WI 87, ¶20, 311

Wis. 2d 548, 751 N.W.2d 845.                  In doing so, we focus on the

nature   rather   than       the    merits       of     the     claim.         Id.      Thus,

identifying the occurrence is important because there must be an

occurrence under the policy for there to be coverage and the

policy's    language    controls       what      constitutes         an    "occurrence."

Plastics Eng'g Co. v. Liberty Mut. Ins. Co., 2009 WI 13, ¶30,

315 Wis. 2d 556, 759 N.W.2d 613.

    ¶28     The   Falks       do     not     seek        coverage        for     the     over

application of cow manure to their farmland.                        Rather, the Falks

seek coverage for each unique well that has been contaminated.

Therefore, the occurrence is               not the spreading of manure as

fertilizer; rather, there was an occurrence each time a unique

well was contaminated by manure.

    ¶29     The   Wilson      Mutual       policy's        General       Farm    Liability

Coverage    defined     an      occurrence        as     "an     accident,        including

repeated    exposures      to      similar       conditions,        that       results     in

'bodily injury' or 'property damage' during the policy period."
"Bodily injury" was defined in the policy as "bodily harm to a

person and includes sickness, disease, or death."                                "Property

damage" was defined as "physical injury to tangible property.

This includes loss of use."                The Wilson Mutual policy further

states "'we' pay, up to 'our' 'limit,' all sums for which an

'insured'    is   liable      by    law    because         of    'bodily       injury'    or

'property    damage'     caused      by     an    'occurrence'           to     which    this

coverage applies."        Thus, for there to be an occurrence, there


                                           14
                                                No.       Error! Reference source not found.



must be an accident resulting in "bodily injury" or "property

damage."

       ¶30        The Wilson Mutual policy does not define "accident."

When a policy does not define a term, we look to the term's

common, everyday meaning.                  U.S. Fire Ins. Co. v. Ace Baking Co.,

164 Wis. 2d 499, 505, 476 N.W.2d 280 (Ct. App. 1991).                                      The

common       definition       of      an    "accident"         is    "'[a]n     unexpected,

undesirable          event'      or      'an    unforeseen          incident'      which    is

characterized by a 'lack of intention.'"                          Doyle v. Engelke, 219

Wis. 2d 277, 289, 580 N.W.2d 245 (1998) (quoting The American

Heritage Dictionary of the English Language 11 (3d ed. 1992)).

The unexpected and undesirable event for which the Falks seek

coverage is well contamination.

       ¶31        The conclusion that the occurrence here is the well

contamination is in accord with our precedent.                              In Plastics, an

insurance policy defined "occurrence" as "an accident, including

continuous or repeated exposure to conditions, which results in

bodily injury or property damage neither expected nor intended
from the standpoint of the insured."                        Plastics, 315 Wis. 2d 556,

¶12.         In    Plastics,       the     insurance        company    argued      that    the

manufacture         and   sale     of      asbestos-containing          products     without

warning constituted one occurrence regardless of the number of

people injured by the asbestos.                       Id., ¶29.       The insured argued

there was an occurrence each time a person was exposed to the

asbestos-containing products.                       Id.    We held the occurrence was

not    the    manufacture,         sale,       or    installation      of    the   asbestos-
containing products.               Id., ¶31.          Rather, we explained there was
                                                15
                                         No.   Error! Reference source not found.



an occurrence under the policy each time a unique person was

exposed    to    the   asbestos     because    without     exposure,   no   bodily

injury could take place.          Id., ¶¶29, 31.

     ¶32    Wisconsin       is    in    the    jurisdictional       majority    in

defining    an   occurrence      as    unexpected    or   unintended   resultant

damage.8    Indeed, Couch on Insurance states that the majority of

jurisdictions follow the rule that "[t]here is an occurrence

when the insured did not expect or intend the resultant damage."

9 Steven Plitt et al., Couch on Ins. § 127:4 (3d ed. 2008).

Here,     the    accident    that      resulted     in    "bodily   injury"    and

"property damage" was the seepage of manure9 into the neighboring

wells.     Seepage into the water supply was neither expected nor

     8
       E.g., Wakefield Pork, Inc. v. Ram Mut. Ins. Co., 731
N.W.2d 154, 159 (Minn. Ct. App. 2007), review denied, (Aug. 7,
2007) (holding that where a policy defined an occurrence as
something unintentional, and the insured clearly did not intend
to harm its neighbors or their property by the pig manure odors,
which emanated from the insured's farm, the damage from the
odors was an "accident" and thus an "occurrence" under the
policy).
     9
       Manure application can cause excess nitrates to form. The
Environmental Protection Agency ("EPA") has warned that the
amount of nitrates in the ground water that result from manure
"can reach unhealthy levels. Infants up to three months of age
are particularly susceptible to high nitrate levels and may
develop Blue Baby Syndrome (methemoglobinemia), an often fatal
blood disorder." What's the Problem?, U.S. Envtl. Prot. Agency,
http://epa.gov/region9/animalwaste/problem.html    (last   updated
June 2, 2011) [hereinafter What's the Problem?].         The most
common pathogens of concern that can result from livestock
manure    are   E.    Coli,   campylobacter,    salmonella,    and
cryptosporidium. U.S. Envtl. Prot. Agency, Literature Review of
Contaminants in Livestock and Poultry Manure and Implications
for Water Quality 13, 25 (July 2013) [hereinafter Literature
Review].


                                         16
                                            No.    Error! Reference source not found.



intended.      The Wilson Mutual policy defined an "occurrence" as

"an   accident,      including      continuous        or     repeated   exposure   to

similar conditions, that results in 'bodily injury' or 'property

damage' during the policy period."                     This language is nearly

identical to that in Plastics, and we see no reason why the same

analysis should not apply here.                    Further, the Falks admit in

their      brief   that   they    neither        "expected    nor   intended"   their

manure to get into the groundwater.                    In other words, the well

contamination was an accident.10

      ¶33     We conclude the Wilson Mutual policy makes an initial

grant of coverage because the exposure of manure to each unique

well constituted an occurrence under the Wilson Mutual policy.

Am. Girl, 268 Wis. 2d 16, ¶24.                     Further, as we conclude in

subsection C below, five occurrences took place: each time there

was "property damage" to a unique well, there was an occurrence.

iii. The Pollution Exclusion Bars Recovery for Manure in a Well.

      ¶34     After identifying the five unique occurrences, we must

determine whether an exclusion precludes coverage.                      Id. ("If the
claim triggers the initial grant of coverage in the insuring

agreement, we next examine the various exclusions to see whether

any of them preclude coverage of the present claim.").                        We need

to determine only whether manure is a pollutant at the point it

entered      the   injured       parties'     wells.         The    injured   parties


      10
       Had the Falks sought coverage for harm to the fields as a
result of manure over-application, then the occurrence would
have been over-application on the field.


                                            17
                                              No.    Error! Reference source not found.



suffered     no   harm    until      the    manure     seeped    into       their   wells;

therefore, the grant of coverage arose at that point.                               Wilson

Mutual   argues     the       General      Farm     Liability    Coverage      pollution

exclusion     precludes         coverage.            When   analyzing         whether    a

pollution exclusion precludes coverage we first must determine

whether the substance——in this case manure——is unambiguously a

pollutant     within      the    policy's          definition.      Hirschhorn,         338

Wis. 2d 761, ¶25; Peace, 228 Wis. 2d at 119.                     We conclude that a

reasonable insured would consider manure that seeped into a well

to unambiguously be a pollutant.

       ¶35   Then   we     must       determine       whether    the    alleged       loss

resulted     from       the      "discharge,         release,     escape,       seepage,

migration or dispersal" of the substance under the plain terms

of the pollution exclusion clause.                   Hirschhorn, 338 Wis. 2d 761,

¶25;    Peace,    228     Wis.      2d   at    119;     Donaldson      v.    Urban    Land

Interests, Inc., 211 Wis. 2d 224, 229, 564 N.W.2d 728 (1997).

The circuit court implicitly found that the alleged loss so

resulted when it concluded that "the pollutant exclusion to the
Policies applies to the cow manure spread on the Falks' property

which allegedly contaminated the aquifer which supplied water to

the    Defendants."           The    pollution       exclusion    could       not    apply

without such a finding.              Peace, 228 Wis. 2d at 119; Donaldson,

211 Wis. 2d at 229.                 None of the parties have contested or

appealed this aspect of the circuit court's decision to either

this court, or the court of appeals; and as in Preisler v. Gen.

Cas. Ins. Co., 2014 WI 135, ¶30, __ Wis. 2d __, __ N.W.2d __,
there does not appear to be any dispute that this requirement
                                              18
                                       No.     Error! Reference source not found.



has been satisfied.11         See Waushara Cnty. v. Graf, 166 Wis. 2d

442, 451, 480 N.W.2d 16 (1992) (concluding that arguments not

specifically       raised    on   appeal     will    not   be   considered     or

decided).

    ¶36     As such, the sole disputed issue with regard to the

General Farm Liability Coverage pollution exclusion is whether

manure is a pollutant.         We conclude that manure is unambiguously

a pollutant when it seeps into a well.

    ¶37     Like    many     commercial      and    non-commercial      insurance

policies,   the     Wilson    Mutual   policy's      General    Farm    Liability

Coverage had a pollution exclusion.                 The pollution exclusion

clause excludes from coverage any "bodily injury" or "property

damage" which results from the "actual, alleged or threatened

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

'pollutants' into or upon land, water, or air."                        The policy

defines pollutants as "any solid, liquid, gaseous, thermal, or

radioactive irritant or contaminant, including acids, alkalis,

chemicals, fumes, smoke, soot, vapor, and waste.                Waste includes
materials to be recycled, reclaimed, or reconditioned, as well

as disposed of."       As such, we must determine whether cow manure

falls unambiguously within the definition of "pollutants."

    ¶38      Whether a substance is a pollutant is evaluated from

the standpoint of a reasonable insured.                Our line of pollution

exclusion cases reveals that a reasonable insured would consider

    11
       Further, Wilson Mutual briefed this issue at the circuit
court and neither the Falks nor the injured parties responded.


                                       19
                                             No.     Error! Reference source not found.



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.

       ¶39   When a substance is "universally present and generally

harmless     in    all    but    the    most       unusual   instances,"     we    have

concluded that the substance is not a pollutant.                       Donaldson, 211

Wis. 2d at 234.          However, a substance can be a pollutant if the

harm is caused by "a unique and largely undesirable substance

that is commonly understood to be harmful."                         Hirschhorn, 338

Wis. 2d 761, ¶37.

       ¶40   We   most    recently      analyzed       a   pollution    exclusion       in

Hirschhorn and concluded that a reasonable insured would view

bat guano as a pollutant as guano is undesirable inside a home.12

Id.,    ¶¶33,     37.     There,       the   insureds'       vacation    home   became


       12
       Though not addressed by this court, this was despite the
fact that bat guano can act as a beneficial fertilizer.       See
Nikki   Phipps,  How   to  Use   Bat  Guano   as  a   Fertilizer,
gardeningknowhow.com,
http://www.gardeningknowhow.com/composting/manures/bat-guano-
fertilizer.htm (last updated Oct. 31, 2014) ("Bat guano, or
feces, has a long history of use as a soil enricher. It is
obtained from only fruit and insect-feeding species. Bat dung
makes an excellent fertilizer. It’s fast-acting, has little
odor, and can be worked into the soil prior to planting or
during active growth.")   Both bat guano and cow manure can be
repurposed for a beneficial use. Simply because a substance is
beneficial in one context does not prevent it from being a
pollutant in another. U.S. Fire Ins. Co. v. Ace Baking Co., 164
Wis. 2d 499, 505, 476 N.W.2d 280 (Ct. App. 1991).


                                             20
                                           No.    Error! Reference source not found.



pervaded with bat guano, so much so that the home had to be

demolished and rebuilt because of the "penetrating and offensive

odor emanating from the home."                   Id., ¶¶8-10.       The policy at

issue defined "pollutant" to include irritants, contaminants,

and waste.      Id., ¶5.         We concluded that a reasonable insured

would understand bat guano to be a pollutant because bat guano

is a unique and largely undesirable substance that is commonly

understood to be harmful when released into a home.                       Id., ¶37.

The harm caused by the bat guano constituted pollution as the

bat guano (1) was a contaminant because it made the home "impure

[and]    unclean;"     (2)    was    an   irritant    because     it   could    cause

"inflammation, soreness, or irritability" in a person's lungs

and skin if they were to stay in the home; and (3) was waste

because    it   was    a     combination     of   feces     and   urine   that      had

permeated into the home.13                Id., ¶¶33, 34.          Thus, Hirschhorn

shows    that   we    must    view   a    substance    in   the    context     of   the

occurrence that the insureds seek coverage for; and in doing so

we concluded that, on and in a home, bat guano was a largely
undesirable     and     not     universally       present     substance      that    a



    13
       The insureds in Hirschhorn argued that a reasonable
insured would not consider bat guano to be waste because the
policy, in listing examples of irritants and contaminants,
listed industrial pollutants.  Hirschhorn v. Auto-Owners Inc.
Co., 2012 WI 20, ¶35, 338 Wis. 2d 761, 809 N.W.2d 529.     We
rejected that argument, explaining that pollution exclusion
clauses do not apply to only industrial type pollutants. Id.;
Peace ex rel. Lerner v. Nw. Nat'l Ins. Co., 228 Wis. 2d 106,
138-44, 596 N.W.2d 429 (1999).


                                           21
                                           No.     Error! Reference source not found.



reasonable       insured   would    unambiguously        consider      a   pollutant.

Id., ¶37.

     ¶41     Similarly, in Peace, we concluded lead paint that had

flaked, chipped, and otherwise become dispersed from a wall in a

residential rental home was a pollutant.                     Peace, 228 Wis. 2d at

147-48.     We concluded no reasonable insured could view flaked

lead paint in a home as anything but a pollutant based upon the

multitude of studies indicating the dangerous nature of lead

paint.14    Id. at 147.      Indeed, we concluded that when lead paint

chips, flakes, or dusts off the walls of a home, it is "widely,

if not universally, understood to be dangerous and capable of

producing lead poisoning[, as t]he toxic effects of lead have

been recognized for centuries."                  Id. at 137-38.        As such, lead

paint     that   has   become   detached          from   a    wall   in    a   home   is

dangerous in any quantity.               Id.     Those flakes, chips, and dust

particles are largely undesirable and not universally present in

a home, so any harm caused by ingesting or inhaling them is

unambiguously pollution.           Id.
     ¶42     In Ace Baking, the court of appeals concluded that

linalool in ice cream cones was a pollutant.                         Ace Baking, 164


     14
        We concluded the lead paint was a pollutant despite the
fact that lead can have a beneficial use when added to paint.
See Why Use Lead in Paint?, Royal Soc'y of Chemistry, (Aug. 21,
2007),
http://www.rsc.org/chemistryworld/news/2007/August/21080701.asp
(explaining that lead is often added to paint to increase the
paint's color, opacity, toughness, and protection against
water).


                                           22
                                                 No.    Error! Reference source not found.



Wis. 2d at 505.             In Ace Baking, linalool, a valuable ingredient

in fabric softener, contaminated ice cream cones, causing the

cones to taste like soap.                  Id. at 501.         In response, Ace Baking

sought coverage under the insurance policy it purchased from

United States Fire.                 Id. at 500.          The contamination occurred

because the fabric softener and ice cream cones were stored in

the       same    warehouse.         Id.    at    501.        The    occurrence     was   the

linalool "foul[ing]" Ace Baking's products, as linalool was a

unique and harmful foreign substance with respect to ice cream

cones.           Id.   at    505.      Therefore,            Ace    Baking     analyzed   the

substance's effect on ice cream cones, not whether linalool was

beneficial in a different context.                     Id.

          ¶43    Thus, the prior pollution exclusion cases require us

to first analyze whether a substance is largely undesirable and

not universally present as to the occurrence for which coverage

is sought.         Although manure may not be a pollutant when applied

to    a    farm    field,    the     Falks       do    not   seek    coverage     for   that;

rather, they seek coverage for harm done to their neighbors'
wells.          In relation to a well, manure is largely undesirable,

commonly         understood    to     be     harmful,        and    is   not     universally

present.         See Hirschhorn, 338 Wis. 2d 761, ¶37.

          ¶44    Despite the contaminating nature of manure, the Falks

and injured parties argue that to a reasonable farmer, manure is

a     universally       present,           desirable,        and     generally     harmless

substance.          While when safely and beneficially applied, manure

may be a universally present, desirable, and generally harmless
substance on a farm field, this ignores the occurrence for which
                                                 23
                                       No.     Error! Reference source not found.



the Falks seek coverage.            In Donaldson, abnormally high carbon

dioxide levels were not a pollutant because carbon dioxide is

universally      present     and      generally         harmless        in     normal

concentrations in an office building.             Donaldson, 211 Wis. 2d at

234.     A   generally     benign    and     common    substance    like       carbon

dioxide is not a contaminant because it is "universally present

and generally harmless in all but the most unusual instances."

Id.    Thus, any harm caused by an unusually high concentration of

carbon dioxide was not unambiguously pollution.                   Id.        Similarly

in Langone, the court of appeals concluded that abnormally high

carbon monoxide concentrations in a rental property were not a

pollutant because carbon monoxide is an omnipresent substance

that people are exposed to on a daily basis.                       Langone, 300

Wis. 2d 742, ¶26.        Thus, any harm caused by an unusually high

concentration       of   carbon      monoxide         was   not    unambiguously

pollution.    Id.

       ¶45   The same cannot be said for manure.             Like bat guano in

a home and lead paint chips in a home, manure is a unique and
largely undesirable substance commonly understood to be harmful




                                       24
                                   No.     Error! Reference source not found.



when present in a well.15      A reasonable insured would not view

manure    as   universally   present     and   generally    harmless    when

present in a well.16




     15
        Indeed, a reasonable insured understands the dangerous
and polluting nature of manure.        Myriad sources show how
dangerous livestock manure can be.      See Wis. Admin. Code NR
§ 243.01(2) (stating that improperly managed manure can cause
groundwater or surface water pollution); U.S. Envtl. Prot.
Agency, Literature Review, supra note 9, at 1 (warning that
though a resource, livestock manure can "degrade environmental
quality, particularly surface and ground water if not managed
appropriately. . . . Runoff related to manure is considered a
primary contributor to widespread nutrient water quality
pollution in the U.S."); U.S. Envtl. Prot. Agency, What's the
Problem?, supra note 9 ("When contaminants from animal waste
seep into underground sources of drinking water, the amount of
nitrate in the ground water supply can reach unhealthy levels");
R.K. Hubbard & R.R. Lowrance, U.S. Dep't of Agric., Management
of   Dairy   Cattle  Manure,   in  Agricultural  Utilization   of
Municipal, Animal and Industrial Wastes, 92, 92 (Robert J.
Wright et al. eds., 1998) (warning by the USDA that "surface
runoff from dairy feedlots and holding areas have the highest
potential to cause water pollution [and] mismanagement in the
land application of diary cattle manure has been documented as a
cause of water pollution"); Lee Bergquist, Former DNR Regulator
Raises Concerns About Runoff From Large Dairy Operations,
Milwaukee        J.      Sentinel,       Nov.      29,       2013
http://www.jsonline.com/news/wisconsin/former-dnr-regulator-
raises-concerns-about-runoff-from-large-dairy-operations-
b99153075z1-233855981.html ("[T]here is a 'general awareness
[among farmers] that agriculture is in fact a source of water
pollution'"). While manure is certainly beneficial when safely
applied, when it ends up in the wrong place, it pollutes.


                                   25
                                   No.     Error! Reference source not found.



    ¶46    After concluding that manure is largely undesirable,

commonly understood to be harmful, and not universally present

in a well, we next must examine whether a reasonable insured

would consider the substance causing the harm involved in the

occurrence to be a pollutant.        A substance is not a pollutant

merely because it is largely undesirable and not universally

present where the occurrence happened.            A pollution exclusion

bars coverage for an occurrence only if a reasonable insured

would    necessarily   consider   the     substance    causing      the   harm

involved in the occurrence to be a pollutant under the policy.

See Donaldson, 211 Wis. 2d at 232-33; Hirschhorn, 338 Wis. 2d

761, ¶30 ("everyday incidents [should not] be characterized as

pollution.").

    ¶47 For example, a pollution exclusion clause would not bar

coverage for harm that results from slipping on the spilled

contents of a bottle of Drano.           Donaldson, 211 Wis. 2d at 232

(quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins.

Co., 976 F.2d 1037, 1043 (7th Cir. 1992)).            Although Drano may
"'cause,   under   certain   conditions,    bodily    injury   or    property

    16
        While it is true that some concentration of nitrates is
commonly found in water, Basic Information about Nitrate in
Drinking       Water,     U.S.      Envtl.     Prot.      Agency,
http://water.epa.gov/drink/contaminants/basicinformation/nitrate
.cfm,    (last   updated  Feb.  5,    2014)  [hereinafter   Basic
Information], a high concentration of nitrates is especially
harmful. See Preisler v. Gen. Cas. Ins. Co., 2014 WI 135, ¶46,
__ Wis. 2d __, __ N.W.2d __.      Further, according to the DNR,
the   injured   parties  were  exposed    to potentially   lethal
pollutants, and the Jantes alleged their well was contaminated
with E. coli from the manure.


                                   26
                                              No.      Error! Reference source not found.



damage,   one     would    not       ordinarily         characterize          [slipping      on

Drano] as pollution.'"               Id. (quoting Pipefitters, 976 F.2d at

1043).      Further,      while       Drano      may     be    a     unique    and    largely

undesirable     substance       on     a    floor,      that       fact    alone     does    not

transform      Drano    into    a     pollutant.          In       other    words,    in     the

hypothetical Drano example, the Drano caused harm by causing

someone   to    slip,     not    by    contaminating           or     irritating      someone

through pollution.             See id. (holding harm caused by inhaling

excessive carbon dioxide is not pollution because a reasonable

insured would not consider that harm to be pollution).

    ¶48     The Wilson Mutual policy does not define "irritant,

"contaminant," or "waste."                  In Hirschhorn, a nearly identical

pollution      exclusion        did        not      define         these    terms     either.

Hirschhorn,      338    Wis.    2d     761,      ¶28.         As    such,     we   looked    to

definitions used in prior pollution exclusion cases.                                Id., ¶29.

A substance is an irritant if it causes "inflammation, soreness,

or irritability of a bodily organ or part."                           Peace, 228 Wis. 2d

at 122 (quoting American Heritage Dictionary, supra, at 954).                                  A
substance is a contaminant if it "make[s] [something] impure or

unclean by contact or mixture."                     Id. (quoting American Heritage

Dictionary, supra, at 406).

    ¶49     A reasonable insured may not consider manure safely

applied on a field to be a pollutant; however, a reasonable

insured would consider manure in a well to be a pollutant.                                  Just

because manure may be beneficial when spread on a field, does

not mean it is not a pollutant.                     Manure is a contaminant as it
makes water impure or unclean when it comes into contact with or
                                              27
                                         No.    Error! Reference source not found.



mixes with water.       The injured parties and the DNR allege that

the wells were contaminated and polluted by manure, bacteria,

and nitrates, requiring the drilling of new wells, as the wells

were unusable and the water undrinkable.                See also Preisler, __

Wis. 2d __, ¶46 (explaining large concentrations of nitrates

make well water unusable).               Further, as fecal matter, manure

fits within the ordinary definition of "waste," and waste is a

type of pollutant under the Wilson Mutual policy's General Farm

Liability Coverage.         See Hirschhorn, 338 Wis. 2d, ¶¶34-35.              The

Falks realize that manure has the potential to contaminate and

pollute wells, which is why they filed a nutrient management

plan, seeking to safely apply manure.17               Therefore, a reasonable

insured would consider manure to be a largely undesirable and

not universally present substance in a well, and would also

consider    cow    manure     to    be    a    pollutant;    thus,    manure   is

unambiguously a pollutant under these circumstances.

      ¶50   The Falks and injured parties further argue that it

was   the   nitrates,    not       the   manure,      that   caused   the   harm.
However,    this   argument    interprets       the   pollution   exclusion    so

narrowly that our adoption of it would render the exclusion


      17
        Wisconsin Admin. Code NR § 151.07(3) requires that
farmers who spread manure obtain a nutrient management plan to
"limit or reduce the discharge of nutrients to waters of the
state."   Washington County further recognizes the dangerousness
of improperly stored manure: "[I]mproper management of animal
waste storage facilities, including improper land application of
stored animal waste, may cause pollution of the ground and
surface waters." Washington County Code Chapter 16.01(3)(b).


                                         28
                                No.   Error! Reference source not found.



almost meaningless.   Nitrates of this quantity found in a well

could not occur but for excess nitrates that had formed as the

result of manure application.    U.S. Envtl. Prot. Agency, Basic

Information, supra note 16.     Under a causation analysis, the

nitrates could not have seeped into the well, had the manure not

been applied.   No one would look at well water contaminated by

nitrates and conclude that the well is anything but polluted.

This argument further overlooks the fact that harmful bacteria

were also found in the injured parties' wells.            When manure

infiltrates a well, it renders the well impure, unclean, and

contaminates the water.18

     18
        Our holding that manure found in a well is a pollutant is
in accord with other jurisdictions.       The New York Appellate
Division held manure in a well was a pollutant.      Space v. Farm
Family Mut. Ins. Co., 652 N.Y.S.2d 357 (N.Y. App. Div. 1997).
The plaintiffs operated a dairy farm and applied liquid manure
to their fields as fertilizer.      Id. at 358.    Their neighbors
brought a suit for the alleged contamination of their well due
to the over-application of manure.         Id.    The plaintiffs'
insurance policy excluded coverage for property damage arising
out of the discharge of pollutants. Id. The plaintiffs argued a
natural   organic   fertilizer   that  has   been   purposely   and
beneficially applied to cropland is not a pollutant.      Id.   The
court explained that although the plaintiffs may have been
correct that liquid manure is not a "pollutant" when properly
applied and confined to cropland, the time and place of the
manure's initial discharge or application was not relevant. Id.
The "subsequent leachate of intentionally deposited waste
materials" was the occurrence and thus the manure was a
pollutant.     Id.    The court explained liquid manure is a
pollutant when "the substance has leached into the groundwater
and contaminated a well." Id. Further, even though the policy
was a "special farm package" "ordinary businessmen in the
farming community" would understand that "damages resulting from
the application of manure to cropland may be excluded from
coverage under the policy."     Id.   See also Weber v. IMT Ins.
Co., 462 N.W.2d 283, 286 (Iowa 1990) (explaining hog manure that
                                                        (continued)
                                29
                                          No.     Error! Reference source not found.



       ¶51   Contrary     to    the    Falks'     argument,   our    holding      that

manure in a well is a pollutant is in accord with Ace Baking.

Ace Baking indicated that things with a beneficial use, like

linalool in fabric softener, can be pollutants when found in

other items (such as ice cream cones).                    Many substances have

beneficial uses when properly applied, but can still pollute.

       ¶52   Finally, the Falks and injured parties argue that the

well contamination is the result of an everyday activity gone

slightly, but not surprisingly, awry.                Donaldson, 211 Wis. 2d at

233 (explaining that a pollution exclusion should not apply for

everyday incidents gone slightly, but not surprisingly, awry);

Langone,     300   Wis.   2d    742,    ¶19     (explaining   that    concentrated

carbon   monoxide     levels     were    a      normal   condition    gone    awry).

Manure in a well is not an everyday incident gone slightly awry.

Like many of the Falks' arguments, this one also focuses on the

spreading of manure on to a field, which was not the occurrence.

No reasonable insured could characterize manure seepage into a

well   as    anything     but    pollution.         Viewed    in    light    of    the
occurrence for which the Falks seek coverage, well contamination

is not an everyday activity gone slightly, but not surprisingly,




spilled onto a road and contaminated nearby crops was
unambiguously "waste material" and a "pollutant" within the
meaning of a pollution exclusion); Wakefield Pork, Inc. v. Ram
Mut. Ins. Co., 731 N.W.2d 154 (Minn. Ct. App. 2007) (holding
that the odor from pig manure was unambiguously a pollutant).


                                         30
                                      No.    Error! Reference source not found.



awry.     A reasonable insured would therefore understand manure to

be a pollutant.19

   B.      The Pollution Exclusion in the Farm Chemicals Limited

            Liability Endorsement Also Excludes Coverage.

     ¶53    We   must    next   determine    whether    the   Farm   Chemicals

Limited Liability Endorsement provides coverage.                 We conclude

the endorsement does not make an initial grant of coverage for

Addicus Jante's bodily injury, and further conclude the well

contamination    is     excluded   under    this   endorsement   because   the

Falks are being asked to respond to the effects of "pollutants."

     ¶54    As we noted before, "[f]irst, we examine the facts of

the insured's claim to determine whether the policy's insuring

agreement makes an initial grant of coverage.                 If it is clear

that the policy was not intended to cover the claim asserted,

the analysis ends there."          Am. Girl, 268 Wis. 2d 16, ¶24.          The

policy issued by Wilson Mutual contains an endorsement titled

"Farm Chemicals Limited Liability."                The endorsement provides

coverage and will:

     [P]ay those sums which an "insured" becomes legally
     obligated to pay as damages for physical injury to
     19
       Typically, our third step is to examine whether the
exclusion has an exception: "if a particular exclusion applies,
we then look to see whether any exception to that exclusion
reinstates coverage.     An exception pertains only to the
exclusion clause within which it appears; the applicability of
an exception will not create coverage if the insuring agreement
precludes it or if a separate exclusion applies."     Am. Family
Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶24, 268 Wis. 2d 16,
673 N.W.2d 65.   Because no one argues an exception applies, we
need not address it.


                                      31
                                           No.    Error! Reference source not found.


      property if: 1. The injury is caused by the discharge,
      dispersal, release, or escape of chemicals, liquids,
      or gases into the air from the "insured premises".
      The injury must be caused by chemicals, liquids, or
      gases that the insured has used in the normal and
      usual "farming" operations; and 2. The chemicals,
      liquids, or gases have not been discharged, dispersed,
      or released from an aircraft.    [The endorsement also
      explains] [t]he physical injury must be caused by an
      "occurrence" during the policy period.
      ¶55    The    endorsement's        plain    text     covers   only    "physical

injury to property" (emphasis added).                      Thus, the endorsement

does not cover bodily injury to Addicus Jante.

      ¶56    We then turn to whether there is an initial grant of

coverage for the well contamination.                 First, we examine whether

the well contamination is physical injury to property.                         Wilson

Mutual argues the well contamination is loss of use, rather than

physical     injury        to   property         because     the    policy     states

"[p]hysical injury does not include indirect or consequential

damages such as loss of use of soil, animals, crops, or other

property or loss of market."               We are unconvinced and conclude

well contamination is physical injury to property.                          See Soc'y

Ins. v. Town of Franklin, 2000 WI App 35, ¶9, 233 Wis. 2d 207,

607   N.W.2d       342    (discussing     contamination        of   property     that

occurred due to seepage as the physical injury to property);

State v. City of Rhinelander, 2003 WI App 87, ¶¶11, 12, 263

Wis. 2d     311,    661   N.W.2d   509     (explaining       that   where    property

damage was defined as "'injury to or destruction of tangible

property.'         . . . Both      the     on-and        off-site    [groundwater]

contamination are 'property damage'"); Hellenbrand v. Hilliard,
2004 WI App 151, ¶¶33, 35, 275 Wis. 2d 741, 687 N.W.2d 37

                                          32
                                            No.     Error! Reference source not found.



(explaining replacement damages are distinct from loss-of-use

damages).         Therefore, the well contamination is physical injury

to property.20

        ¶57 Second,        the    endorsement          covers   physical        injury    to

property caused by the seepage of liquids into wells.21                             Wilson

Mutual       argues    that,      given     the        endorsement's       title     "Farm

Chemicals Limited Liability," the endorsement applies only to

farm    chemicals.         Although       the     endorsement's         title    does    not

mention liquids, the text does and controls over the title.                              See

Aiello v. Vill. Of Pleasant Prairie, 206 Wis. 2d 68, 73, 556

N.W.2d      697   (1996)    (explaining         text    controls    over    title       when

interpreting a statute).             The endorsement's plain text provides

coverage for "physical injury to property" caused by "chemicals,

liquids, or gases."              Thus, the endorsement's plain text covers

liquids, which is the form in which the manure was applied, and

may trigger an initial grant of coverage.

       ¶58    However, that does not end the inquiry.                     "If the claim

triggers      the     initial      grant    of      coverage       in     the    insuring
agreement, we next examine the various exclusions to see whether

any of them preclude coverage of the present claim."                            Am. Girl,

268 Wis. 2d 16, ¶24.

       20
       It is undisputed that the injured parties claim damages,
as required by the endorsement.
       21
       It is also undisputed that the liquid manure was released
into the air from the insured premises using a manure spreader,
and that the liquid manure was used in normal and usual farming
operations.


                                            33
                                          No.     Error! Reference source not found.



    ¶59    The Farm Chemicals Endorsement does have exclusions,

two of which Wilson Mutual contends are applicable.                          The first

exclusion states the coverage does not apply to "physical injury

to property arising out of 'farming' operations that are in

violation of an ordinance or law."               The second provides:

    This coverage does not apply to any loss, cost, or
    expense arising out of any requests, demands, orders,
    claims, or suits that the "insured" or others test
    for, monitor, clean up, remove, contain, treat,
    detoxify, neutralize, or in any way respond to or
    assess the effects of pollutants, chemicals, liquids,
    or gases.
    ¶60    The endorsement's exclusion barring coverage for a law

violation does not apply.        Wilson Mutual has not shown that the

Falks   violated   a   law,   and    the        Falks    correctly        argue   Wilson

Mutual bears the burden of proving that an exclusion applies.

Day v. Allstate Indem. Co., 2011 WI 24, ¶26, 332 Wis. 2d 571,

798 N.W.2d 199.        Wilson Mutual cites to no authority for the

proposition that an unsupported allegation of a violation of law

triggers   the   law-violation      exclusion           in    an   insurance      policy.

See State v. Boyer, 198 Wis. 2d 837, 842 n.4, 543 N.W.2d 562

(Ct. App. 1995) (stating an appellate court will not consider an

argument not supported by legal theory).

    ¶61 However, we conclude that the endorsement's pollution

exclusion bars coverage for harm incurred by the contamination

of the neighboring wells.             Individual terms are not defined

under   each     endorsement,       and        unlike        the   term    "pollutant"

elsewhere in the policy, "pollutant" in the endorsement is not
in quotation marks.      The policy plainly states: "[r]efer to the


                                          34
                                             No.    Error! Reference source not found.



Definitions for words and phrases that have special meaning.

These words and phrases are shown in quotation marks or bold

type."      "Pollutants" in the endorsement is neither in quotation

marks or bold type.               Thus, we conclude a reasonable insured

would not consider the term "pollutant" to have special meaning

with regard to the endorsement.

      ¶62    However, the lack of a definition does not render the

term ambiguous.           In Ace Baking, "pollutant" was not defined in

the policy, even though it was placed inside quotation marks.

Ace   Baking,      164    Wis.    2d   at    502.       The    court    looked     to    the

dictionary definition of "pollutant" and defined a pollutant as

"'something     that       pollutes:    a    polluting        substance,     medium,      or

agent,' and 'pollute' as, inter alia, 'to make physically impure

or unclean.'"            Id. at 505 (internal citations omitted).                       This

definition      of       pollutant      is    substantially          similar       to    the

definition of pollutant analyzed above.                   Thus, our analysis here

is the same as above, and we conclude a reasonable insured would

consider manure to be a pollutant when found in a well.
      ¶63    Finally, the exclusion applies because the Falks seek

coverage     for     a    loss,   cost,      and    expense,     that      arose   out    of

requests     and     demands      on   behalf      of   the    DNR   and    the    injured

parties that the Falks respond to the effects of manure.                                 The

words "requests," "claims," and "suits" contradict the Falks'

argument that this pollution exclusion applies only to costs

incurred as a result of remediation ordered by the government;

such requests can come from any person or entity.                             The phrase
"in any way respond to" is also broad enough to include costs to
                                             35
                                                No.    Error! Reference source not found.



redrill wells and to reimburse the DNR for the grant money and

temporary      clean       water    it     provided       to     some    of     the   Falks'

neighbors.22        As such, we conclude that although the endorsement

applies to liquids used in farming operations, pollutants cannot

find    coverage       under       the     Farm       Chemicals       Limited     Liability

Endorsement just because they are also liquids.

       C.    The Incidental Coverages Section Provides Coverage.

       ¶64    Finally,       we     must      address        whether     the     incidental

coverages section of the Falks' policy provides coverage.                                 We

conclude the "Damage to Property of Others" clause under the

incidental coverages section requires Wilson Mutual to indemnify

the Falks up to $500 for each unique well that was allegedly

contaminated by the Falks' manure and that Wilson Mutual has a

duty to defend the Falks.

       ¶65    The "Damage to Property of Others" clause under the

incidental         coverages       section       of    the      Wilson    Mutual      policy

provides that "[r]egardless of an 'insured's' legal liability,

'we' [Wilson Mutual] pay for property of others damaged by an
'insured', or 'we' repair or replace the property, to the extent

practical,     with     property         of   like      kind    and     quality.       'Our'

'limit'      for    this    coverage       is     $500    per    'occurrence.'"          The

incidental coverage section states: "The following coverages are

subjected to all the 'terms' of Coverage[] L," but the "Damage

       22
       The endorsement also does not apply to losses arising out
of requests to respond to the effects of liquids.      The Falks'
liquid manure allegedly contaminated the wells, and as such,
even if the manure was not a pollutant, it was a liquid.


                                              36
                                           No.     Error! Reference source not found.



to     Property    of      Others"       clause     further        explains,       "[t]he

exclusions that apply to Coverage[] L . . . do not apply to this

coverage."        Coverage       L   provides:     "'We'     will       defend    a     suit

seeking damages if the suit resulted from 'bodily injury' or

'property damage' not excluded under this coverage.                              'We' may

make investigations and settle claims or suits that 'we' decide

are appropriate."          The policy further states "'We' do not have

to provide a defense after 'we' have paid an amount equal to

'our' 'limit' as a result of a judgment, or after 'our' 'limit'

has been tendered for settlement."                   Wilson Mutual agrees that

coverage exists under the "Damage to Property of Others" clause;

however, it argues that it is obligated to pay only up to $500

total because there was only one occurrence.                              Wilson Mutual

further argues no duty to defend exists under the incidental

coverages section.

       ¶66    Wisconsin has adopted the "cause theory" to determine

the number of occurrences.                Plastics, 315 Wis. 2d 556, ¶35.

Under the cause theory, "where a single, uninterrupted cause
results in all of the injuries and damage, there is but one

'accident' or 'occurrence.'"              Welter v. Singer, 126 Wis. 2d 242,

250,    376     N.W.2d    84     (Ct.    App.     1985).          "If     the   cause    is

interrupted or replaced by another cause, the chain of causation

is     broken    and     there    has    been     more     than     one     accident      or

occurrence."       Id. (citing Olsen v. Moore, 56 Wis. 2d 340, 349,

202 N.W.2d 236 (1972)).                 Where the cause and result are "so

simultaneous or so closely linked in time and space as to be


                                           37
                                        No.    Error! Reference source not found.



considered by the average person as one event," only a single

occurrence has taken place.           Id. at 251.

      ¶67   Because the occurrence under the Wilson Mutual policy

is   well   contamination,      not   manure       application,     there    was   an

occurrence each time manure seeped into a unique well.                      As such,

an "average person" would not consider the well contamination to

be one event because manure had to seep into each individual

well for the alleged contamination to occur.                   Further, because

the manure had to seep into each individual well, rather than

seep into one well which "fed" the other wells, it cannot be

said the seepage was "so simultaneous or so closely linked in

time and space as to be considered by the average person as one

event."      Id.      Similar    to    Plastics,       where   we   rejected       the

argument    that     the   manufacture,        sale,     and   installation        of

asbestos containing products, without warning, constituted one

occurrence, and concluded each individual's repeated exposure to

asbestos constituted a unique occurrence, we likewise reject the

argument     that    the    spreading         of    manure     constituted         one
occurrence,    and     conclude       each    well's     exposure      to     manure

constituted a unique occurrence.

      ¶68   The "Damage to Property of Others" clause under the

incidental coverages section requires Wilson Mutual to indemnify

the Falks up to $500 for each well contaminated by the Falks'

manure.     Thus, there is a $500 indemnification for each unique

well allegedly contaminated by the Falks.

      ¶69   The incidental coverages section also requires Wilson
Mutual defend the Falks.          "The duty of defense depends on the
                                        38
                                           No.    Error! Reference source not found.



nature of the claim and has nothing to do with the merits of the

claim."     Elliott v. Donahue, 169 Wis. 2d 310, 321, 485 N.W.2d

403 (1992).       "'The insurer is under an obligation to defend only

if it could be held bound to indemnify the insured, assuming

that the injured person proved the allegations of the complaint,

regardless    of    the    actual    outcome      of    the    case.'"     Grieb    v.

Citizens Cas. Co., 33 Wis. 2d 552, 558, 148 N.W.2d 103 (1967)

(internal citation omitted).              "If there is any doubt about the

duty to defend, it must be resolved in favor of the insured."

Elliott, 169 Wis. 2d at 321.              Where an insurer's policy provides

coverage for even one claim made in a lawsuit, that insurer is

obligated to defend the entire suit.                   See Doyle, 219 Wis. 2d at

284-85;    Atl.    Mut.    Ins.   Co.,     v.    Badger    Med.   Supply   Co., 191

Wis. 2d 229, 242, 528 N.W.2d 486 (Ct. App. 1995).

    ¶70     Thus,       because     the    Wilson       Mutual    policy   provides

coverage     for     manure       seepage-related          claims      through     the

incidental coverages section, Wilson Mutual has a duty to defend

the entire suit.            However, the Wilson Mutual policy clearly
states Wilson Mutual has no duty to provide a defense once it

has paid its limit, either because of a judgment, or because of

a settlement.       Wilson Mutual has the right, under the policy, to

settle.      While we take no position on whether Wilson Mutual

should settle, if Wilson Mutual decides to settle each claim for

$500, the policy language plainly states its duty to defend is

complete,    as    no     other   policy     provision        would   indemnify    the

Falks.
                                  IV. CONCLUSION
                                           39
                                           No.        Error! Reference source not found.



      ¶71   We hold that the pollution exclusion clause in Wilson

Mutual's General Farm Coverage Liability policy issued to the

Falks   unambiguously         excludes     coverage        for   well     contamination

caused by the seepage of cow manure.                       First, we conclude that

cow manure falls unambiguously within the policy's definition of

"pollutants" when it enters a well.                       Second, we conclude the

Farm Chemicals Limited Liability Endorsement likewise excludes

coverage    for     "physical     injury         to     property"       resulting   from

pollutants.       Finally, we conclude that the "Damage to Property

of    Others"     clause      under   the        incidental       coverages      section

provides incidental coverage up to $500 for each unique well

that has allegedly been contaminated by the Falks' manure, and

Wilson Mutual has a duty to defend.                      Accordingly, the decision

of the court of appeals is reversed and we remand to the circuit

court for further proceedings consistent with our holding.



By the Court.-The decision of the court of appeals is reversed,

and   the   cause   is     remanded   to    the        circuit   court     for   further
proceedings consistent with this opinion.

      ¶72   DAVID        T.    PROSSER,          J.,      did     not      participate.




                                           40
                                                No. 2013AP691 & 2013AP776.awb




    ¶73    ANN WALSH BRADLEY, J.         (concurring).       I agree with

the majority that "Wisconsin is in the jurisdictional majority

in defining an occurrence as unexpected or unintended resultant

damage."     Majority   op.,   ¶32.       I    further   agree    with   the

application of that definition.        Id., ¶¶33-34.

    ¶74    We part ways, however, when the majority strays from

its original occurrence analysis and inconsistently states that

"Wisconsin   has   adopted     a      'cause     theory.'"       Id.,    ¶66.

Additionally, for the reasons set forth in the dissent, I do not

agree with the majority's interpretation of the Farm Chemicals

Limited Liability Endorsement. Dissent, ¶131.              Accordingly, I

respectfully concur.




                                   1
                                                                 No.   2013AP691 & 2013AP776.ssa




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

affirm the decision of the court of appeals.

       ¶76     This     case    requires           us     to       interpret        a     standard

pollution       exclusion       clause    in        the        insurance       policy         titled

"FARMOWNERS policy" issued to Robert and Jane Falk.                                     The issue

is whether cow manure that the Falks spread over their land that

caused       damage     to   nearby    wells        is       a     "pollutant"          under    the

pollution exclusion clause in their FARMOWNERS policy.

       ¶77     If the pollution exclusion clause bars coverage, then

the    court     must    interpret       two       other          policy    provisions:          the

incidental       coverages      section     and         the       Farm     Chemicals      Limited

Liability Endorsement.

       ¶78     The    extent    of    Wilson        Mutual's           liability        under    the

incidental coverages section depends on how many "occurrences"

there were.

       ¶79     Whether       Wilson    Mutual           is       liable     under       the     Farm

Chemicals Limited Liability Endorsement depends on whether the
endorsement's remediation exclusion is applicable.

       ¶80     The    majority        opinion           concludes          that     "manure       is

unambiguously a pollutant when it seeps into a well."1                                           The

majority opinion's approach to this issue unnecessarily departs

from       precedent,    undercuts       the       limiting            principles       our   prior

cases have applied, and further confuses this murky area of the

law.

       1
           Majority op., ¶36.


                                               1
                                                                No.    2013AP691 & 2013AP776.ssa


       ¶81       The majority opinion further concludes that the Falks

are     covered         under     the     incidental          coverages          section,      which

obligates         Wilson       Mutual     to     pay    $500        per     occurrence.          The

majority          opinion       determines       that      there          were    "five     unique

occurrences"           in    this    case:      "[E]ach       time     there      was   'property

damage'          to    a    unique      well,    there        was      an    occurrence."2         In

discussing            the   number      of    occurrences,            the    majority       opinion

contradicts           itself      and    assumes       facts    not       established       in   the

summary judgment record.

       ¶82       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 Preisler v. General Casualty Insurance Co., 2014 WI

135,       ___    Wis. 2d ___,          ___    N.W.2d ___,        mandated        on    this     same

date.       I write on substantially similar issues in my dissent in

Preisler.             My    dissents     in    Preisler        and    in    the    instant       case

should be read together.

       ¶83       Finally, the majority opinion determines that coverage

is barred under an exclusion within the Farm Chemicals Limited

Liability         Endorsement.            This   interpretation             of    the   exclusion

renders the endorsement illusory and superfluous.

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

the Falks, farmers insured under a FARMOWNERS policy, would not

consider          manure      a     pollutant         under     the       policy's      pollution

exclusion clause.              Thus, I would not bar coverage.


       2
           Id., ¶33, 34.


                                                  2
                                                            No.    2013AP691 & 2013AP776.ssa


      ¶85    If     the     majority       is       unwilling       to     adhere      to   our

longstanding        practice       of    honoring          the    expectations         of   the

reasonable insured, then I would remand the cause to the circuit

court so the parties can produce evidence regarding the Falks'

expectations       of     coverage      and     the   objective          reasonableness      of

those     expectations.          Summary        judgment         should    not    be   granted

before the parties have that opportunity.

      ¶86    If     coverage       is   barred        by    the     pollution       exclusion

clause,     I     would     find     coverage         under       both     the    incidental

coverages section and the endorsement.

      ¶87    Accordingly, I dissent.

                                                I

      ¶88    Robert and Jane Falk, the insureds in this case, are

dairy farmers.            They own roughly 600 head of cattle and more

than 1,670 acres of land.               Like countless other dairy farmers in

this state, the Falks fertilize their fields with liquid manure

from their dairy cows.             Farmers must spread manure to ensure the

success of their crops, which are their livelihood.                                 Manure is

"universally present and generally harmless" on farmland.3

      ¶89    In early 2011, the Falks spread liquid manure on their

farm as they had done in previous years.                            Shortly thereafter,

the   Falks'      neighbors      discovered         that    manure        had    contaminated

their wells.        The Department of Natural Resources confirmed that

manure     spread    by    the     Falks      had     seeped      into    five    neighbors'

wells, contaminating the water.

      3
       See Donaldson v. Urban Land                               Interests,       Inc.,     211
Wis. 2d 224, 234, 564 N.W.2d 728 (1997).


                                                3
                                                              No.   2013AP691 & 2013AP776.ssa


       ¶90     During       this    time,    the       Falks    were     insured    under   a

FARMOWNERS          policy    issued        by       Wilson     Mutual.    Wilson     Mutual

contends that manure is a "pollutant" and thus that coverage for

this       incident    is    barred    by    the       policy's       pollution    exclusion

clause.        The Falks argue that manure is not a pollutant and thus

that the FARMOWNERS policy should cover their liability for the

well contamination.

                                                 II

       ¶91     The      following           principles          govern      the      court's

interpretation of the insurance policy provisions at issue, as

they govern interpretation of all insurance contract provisions.4

           •   Words and phrases in insurance contracts are subject

               to     the    same    rules       of    construction       that     apply    to

               contracts generally.

           •   The primary objective in interpreting and construing a

               contract is to ascertain and carry out the true intent

               of the parties.

           •   If the language of an insurance policy is unambiguous,

               a court will not rewrite the policy by construction

               and will interpret the policy according to its plain

               and     ordinary       meaning         to      avoid    imposing     contract

               obligations that the parties did not undertake.

           •   Words and phrases in an insurance policy are ambiguous

               when they are so imprecise and elastic as to lack any

               certain interpretation or are susceptible to more than

       4
       See Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶¶15-
22, 257 Wis. 2d 80, 654 N.W.2d 225.


                                                 4
                                                 No.   2013AP691 & 2013AP776.ssa


    one reasonable construction.                   Terms of an insurance

    policy may be inherently ambiguous or may be ambiguous

    when considered in the context of the insurance policy

    as a whole.       Whether ambiguity exists in an insurance

    policy is a question of law.

•   Ambiguous    terms      are       to    be     construed      against     the

    insurance company that drafted the policy.                       Ambiguous

    terms are to be construed in favor of coverage, and

    exclusions are to be narrowly construed against the

    insurance company.

•   Language    in    an    insurance         policy       is    construed     as

    understood by a reasonable person in the position of

    the insured rather than as intended by the insurance

    company.      The      insured's        reasonable       expectations      of

    coverage    should      be    furthered        by    the    interpretation

    given.

•   Furthermore, in 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          contract,     the

    situation    of     the      parties,         and     the    circumstances

    surrounding the creation of the contract.

•   A   construction       of    an    insurance         policy    that     gives

    reasonable meaning to every provision of the policy is

    preferable to one leaving part of the language useless

    or meaningless.



                                  5
                                               No.   2013AP691 & 2013AP776.ssa


    ¶92    I now apply these interpretive principles to the three

policy provisions at issue.

                                    III

    ¶93    I begin with the pollution exclusion clause.

    ¶94    The "Personal Liability Coverage (Farm)" section of

the Falks' FARMOWNERS policy includes the following exclusion:

    "We" do not pay for a loss if one or more of the
    following   excluded   events  apply  to the   loss,
    regardless of other causes or events that contribute
    to or aggravate the loss, whether such causes or
    events act to produce the loss before, at the same
    time as, or after the excluded event.

           . . . .

    l. "bodily injury" or "property damage" which results
    from the actual, alleged, or threatened discharge,
    dispersal, seepage, migration, release, or escape of
    "pollutants" into or upon land, water, or air.
    ¶95    The policy defines "pollutant" as "any solid, liquid,

gaseous,     thermal,   or   radioactive   irritant       or       contaminant,

including acids, alkalis, chemicals, fumes, smoke, soot, vapor

and waste.     Waste includes materials to be recycled, reclaimed,

or reconditioned, as well as disposed of."

    ¶96    Pollution    exclusion    clauses     present       a     particular

interpretive challenge, as this court has acknowledged.5                    The




    5
       In some cases, courts have viewed similarly worded
pollution exclusion clauses ambiguous and thus have not barred
recovery.    See, e.g., Donaldson, 211 Wis. 2d at 235 (the
insurance policy's definition of "pollutant" was ambiguous;
thus, the landlord insured could recover for damage caused by
carbon dioxide).

                                                                    (continued)
                                     6
                                                          No.    2013AP691 & 2013AP776.ssa


language of a standard pollution exclusion clause is "virtually

boundless, for there is virtually no substance or chemical in

existence      that    would    not    irritate      or    damage        some   person   or

property."6      Thus, this court has concluded that "[w]ithout some

limiting principle, the pollution exclusion clause would extend

far beyond its intended scope, and lead to some absurd results."7

       ¶97     Because    the         court       construes         insurance        policy

provisions as would a reasonable insured, this court has held

that       pollution   exclusion       clauses      do     not     bar    coverage    when

"injuries result[] from everyday activities gone slightly, but

not surprisingly, awry."8

       ¶98     To dairy farmers like the Falks, spreading manure is

indisputably an everyday activity.                   Manure is a substance with

which the Falks routinely work in the course of their ordinary

farming operations.



     In other cases, courts have viewed similarly worded
pollution exclusion clauses as unambiguous and barred recovery.
See, e.g., Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶47,
338 Wis. 2d 761, 809 N.W.2d 529 (bat guano unambiguously falls
within   the  policy's   definition   of  "pollutants," thereby
precluding coverage); Peace ex rel. Lerner v. N.W. Nat'l Ins.
Co., 228 Wis. 2d 106, 136, 596 N.W.2d 429 (1999) (the policy's
definition of "pollutant" was unambiguous, lead paint was a
pollutant, and coverage was properly denied).
       6
       Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters Welfare
Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043
(7th Cir. 1992)).
       7
       Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters, 976
F.2d at 1043).
       8
           See Donaldson, 211 Wis. 2d at 233.


                                              7
                                                           No.    2013AP691 & 2013AP776.ssa


     ¶99        In addition, farmers like the Falks apply manure to

their land precisely in order to have it seep into the soil.

Seepage is the whole point.                 Seepage into neighbors' wells, the

injury     in    the     present    case,     thus    resulted          from   an    everyday

activity "gone slightly, but not surprisingly, awry."9

     ¶100 A       court     keeps     the     underlying          purpose      and    subject

matter     of     the     insurance      in       mind     when     construing         policy

provisions.           The Falks purchased this FARMOWNERS policy to cover

their liability for injury to the person or property of others

caused by their farming operations.                      A reasonable insured would

not consider manure a pollutant under a FARMOWNERS policy it

purchased specifically to cover its liability for injury to the

person     or    property     of     others       caused    by     farming     operations.

Rather, as the court of appeals put it, a reasonable insured in

the position of the Falks would view manure as "liquid gold."10

     ¶101 A       pollution        exclusion      clause     is    ambiguous         when   the

insured could reasonably expect coverage under the facts of the

case.11         The    FARMOWNERS     policy's       failure       to    identify      manure

specifically as a pollutant made the pollution exclusion clause

ambiguous in the context of this FARMOWNERS policy.                                  Ambiguous

clauses are construed against the insurance company.                                Thus, the




     9
          Id.
     10
       Wilson Mut. Ins. Co. v. Falk, 2014 WI App 10, ¶15, 352
Wis. 2d 461, 844 N.W.2d 380.
     11
          Donaldson, 211 Wis. 2d at 233.


                                              8
                                                         No.   2013AP691 & 2013AP776.ssa


pollution       exclusion        clause   should    be     construed     against        the

insurance company.12

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

position        of     the   Falks   would       expect     coverage     under        their

FARMOWNERS policy for damage caused by manure that they spread

as   fertilizer         on   their   farmland.        The      insured's   reasonable

expectations of coverage must be honored.                      Thus, I conclude that

the pollution exclusion clause does not bar coverage in the

present case.

      ¶103 Many cases in other jurisdictions similarly limit the

scope      of    pollution       exclusion       clauses       by   adhering     to    the

reasonable           insured's    expectations      of     coverage.           See,    for

example, the following cases:

      • Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178,
        1183 (6th Cir. 1999) (reasonable person in the
        position of insured construction contractor would
        expect coverage for injuries suffered by employee
        who breathed fumes from chemicals the contractor
        sprayed a few feet away despite pollution exclusion
        clause   in  construction   contractor's  insurance
        policy);

      • Reg'l Bank of Colo., N.A. v. St. Paul Fire & Marine
        Ins. Co., 35 F.3d 494, 498 (10th Cir. 1994) (insured
        landlord would not characterize carbon monoxide


      12
       For cases using similar reasoning, see W. Alliance Ins.
Co. v. Gill, 686 N.E.2d 997 (Mass. 1997) (reasonable insured
restaurant owner would expect coverage for patron's carbon
monoxide poisoning, which was caused by a defective oven,
despite pollution exclusion); Hocker Oil Co. v. Barker-Phillips-
Jackson, Inc., 997 S.W.2d 510, 518 (Mo. Ct. App. 1999)
(reasonable  person   in  the   position  of   insured  gasoline
transporting company would not consider gasoline that spilled a
pollutant).


                                             9
                                         No.   2013AP691 & 2013AP776.ssa

       emitted from a malfunctioning residential heater as
       "pollution");

    • W. Alliance Ins. Co. v. Gill, 686 N.E.2d 997 (Mass.
      1997) (reasonable insured restaurant owner would
      expect   coverage  for   patron's carbon   monoxide
      poisoning, which was caused by a defective oven,
      despite the pollution exclusion);

    • Hocker Oil Co. v. Barker-Phillips-Jackson, Inc., 997
      S.W.2d 510, 518 (Mo. Ct. App. 1999) (reasonable
      person   in  the   position   of  insured   gasoline
      transporting company would not consider gasoline a
      pollutant);

    • Island Assocs., Inc. v. Eric Grp., Inc., 894
      F. Supp. 200, 203 (W.D. Pa. 1995) (reasonable person
      in the position of insured asbestos abatement
      subcontractor would not consider cleaning supply
      fumes pollutants);

    • Langone v. Am. Family Mut. Ins. Co., 2007 WI App
      121,   ¶28,    300   Wis. 2d 742,  731   N.W.2d 334
      (reasonable person in the position of insured
      landlord would expect coverage for tenant's death
      caused by carbon monoxide poisoning from a poorly
      installed boiler despite pollution exclusion clause
      in landlord's insurance policy).
    ¶104 The   majority     opinion   fails    to    adhere    to   the

longstanding practice in this and many other courts of honoring

the expectations of the reasonable insured in interpreting a

pollution exclusion clause.

    ¶105 The   majority's     interpretation    of    the     pollution

exclusion clause is unpersuasive.     It sets forth the following

test for whether a substance is a pollutant:

    Whether a substance is a pollutant is evaluated from
    the standpoint of a reasonable insured.   Our line of
    pollution exclusion cases reveals that 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
                                 10
                                                 No.   2013AP691 & 2013AP776.ssa

     causing the harm involved in the occurrence to be a
     pollutant.13
     ¶106 Despite the majority opinion's claim that this test is

grounded     in    precedent,   in   fact   it    sharply     diverges     from

precedent.        Part (1) of the test takes a far narrower view of

what constitutes a pollutant than the court has taken in past

cases.     Part (2) of the test simply restates the premise that we

construe the pollution exclusion clause from the perspective of

the reasonable insured.

     ¶107 Regarding part (1) of its test, the majority opinion

concludes that "[w]hile when safely and beneficially applied,

manure may be a universally present, desirable, and generally

harmless substance,"14 it is nevertheless a "largely undesirable

substance commonly understood to be harmful when present in a

well."15

     ¶108 Regarding part (2) of its test, the majority concludes

that "[a] reasonable insured would consider manure in a well to

be a pollutant."16      Who wouldn't?

     ¶109 The essence of the majority's analysis is that manure
is a pollutant when it pollutes.            Using this reasoning, every

substance that pollutes is a pollutant.                This reasoning simply

begs the question.



     13
          Majority op., ¶38.
     14
          Id., ¶44.
     15
          Id., ¶45.
     16
          Id., ¶49 (emphasis in original).


                                     11
                                                              No.    2013AP691 & 2013AP776.ssa


     ¶110 The point this court has made again and again in cases

involving       pollution        exclusion            clauses       is     that       "there      is

virtually no substance or chemical in existence that would not

irritate or damage some person or property."17                                    Thus, "[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."18

     ¶111 By       contending          that       at    the     moment          the    substance

contaminates       it     becomes       a    pollutant         under       the     policy,       the

majority opinion allows the pollution exclusion clause to extend

far beyond the limited scope we have permitted in prior cases,

leading to absurd results.

     ¶112 If       the    majority          is   unwilling          to    apply    our    general

rules     for   interpreting           insurance        policies,          which      honor      the

expectations of the reasonable insured, then the majority should

remand the case to the circuit court to allow the parties to

develop a factual record regarding the reasonable expectations

of the insured.

     ¶113 The parties are here on summary judgment.                                    The Falks

contend     that    they        expected         coverage.           It    is     unclear       what

representations Wilson Mutual may have made to the Falks about

their     coverage.        Summary      judgment         is     inappropriate            when    the

Falks have not had a chance to prove their expectations and the


     17
       Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters, 976
F.2d at 1043).
     18
          Donaldson, 211 Wis. 2d at 233.


                                                 12
                                                   No.   2013AP691 & 2013AP776.ssa


objective reasonableness of those expectations.                   Remanding the

matter   would   conform   to    prior     cases   that    have   explored     the

subjective expectations of the insured.

                                      IV

    ¶114 Because the majority opinion concludes that coverage

is barred under the pollution exclusion clause, it considers

whether the incidental coverages section provides some lesser

coverage.    This   section      of   the   FARMOWNERS      policy    states    in

relevant part:

    The following coverages . . . do not increase                       the
    "limits" stated for the Principal Coverages.

    1.   Damage to Property of Others – Regardless of an
    "insured's" legal liability, "we" pay for property of
    others damaged by an "insured", or "we" repair or
    replace the property, to the extent practical, with
    property of the like kind and quality. "Our" "limit"
    for this coverage is $500 per "occurrence."
(Emphasis added.)

    ¶115 In my view, the incidental coverages section is not an

issue in the present case because the pollution exclusion clause

does not bar coverage under the principal coverages section.                    If

the pollution exclusion bars coverage, I agree that the Falks

can recover $500 per occurrence under the incidental coverages

section.    I    disagree,      however,    with    the    majority    opinion's

approach to determining the number of occurrences.

    ¶116 The majority correctly notes the policy's definition

of "occurrence" ("an accident, including repeated exposures to

similar conditions, that results in 'bodily injury' or 'property
damage' during the policy period"), but its application of that

definition is problematic for at least two reasons.
                                      13
                                                  No.   2013AP691 & 2013AP776.ssa


      ¶117 First, the majority opinion contradicts itself.

      ¶118 The majority opinion initially states that "Wisconsin

is in the jurisdictional majority in defining an occurrence as

unexpected      or   unintended    resultant    damage."19       The   majority

opinion then concludes that "the exposure of manure to each well

constituted an occurrence"20 because the damage in this case was

"seepage of manure into the neighboring wells."21

      ¶119 Later on, the majority opinion states that "Wisconsin

has   adopted    the   'cause     theory,'"    which    holds   that   "where   a

single, uninterrupted cause results in all of the injuries and

damage, there is but one accident or occurrence."22




      19
           Majority op., ¶32.
      20
           Id., ¶33.
      21
           Id., ¶32.
      22
       Majority op., ¶66 (citing Plastics Eng'g Co. v. Liberty
Mut. Ins. Co., 2009 WI 13, ¶67, 315 Wis. 2d 556, 759 N.W.2d 613;
quoting Welter v. Singer, 126 Wis. 2d 242, 250, 376 N.W.2d 84).

      Plastics Engineering, 315 Wis. 2d 556, ¶38, states:

      The general rule is that an occurrence is determined
      by the cause or causes of the resulting injury. . . .

      The fact that there were multiple injuries and that
      they were of different magnitudes and that injuries
      extended over a period of time does not alter our
      conclusion that there was a single occurrence.   As
      long as the injuries stem from one proximate cause,
      there is a single occurrence.

(Quoting Welter, 126 Wis. 2d at 250-51).


                                       14
                                                      No.   2013AP691 & 2013AP776.ssa


       ¶120 Was the cause of the damage or the damage itself the

occurrence in this case?             The majority opinion does not provide

a clear answer to this question.

       ¶121 The majority opinion's discussion of "occurrence" is

inconsistent with the discussion of occurrence in the majority

opinion in Preisler v. General Casualty Insurance Co., 2014 WI

135,        ¶¶24-28,    ___    Wis. 2d ___,     ___     N.W.2d ___.         In    her

concurring       opinion      in   Preisler,   Justice      Bradley    persuasively

explains that the majority opinion's discussion of occurrence in

Preisler        is     unnecessary,      internally         contradictory,23       and

inconsistent with the instant case.                   I join Justice Bradley's

criticisms of the discussion of occurrence in Preisler.                          These

criticisms apply to the majority opinion in the instant case, as

well.

       ¶122 Second,        the     majority    opinion       assumes    facts     not

established in the summary judgment record.

       ¶123 The        majority     opinion    determines      there    were     five

occurrences in this case because five wells were contaminated.

It appears to assume that manure seeped into each well just

once, and thus that there was only one cause or incidence of

damage per well.           The record does not support this conclusion.

The majority opinion overlooks the fact that a single piece of



       23
       "It is unclear whether the majority is embarking on a
cause   approach  or   damage   approach  in   determining  what
constitutes an occurrence."    Preisler v. Gen. Cas. Ins. Co.,
2014 WI 135, ¶___, ___ Wis. 2d ___, ___ N.W.2d ___ (Bradley, J.,
concurring).


                                          15
                                                    No.   2013AP691 & 2013AP776.ssa


property can be damaged multiple times and that there can be

different causes for each incidence of damage.

     ¶124 The majority opinion further overlooks the ambiguity

in the record regarding what the "accident" was.                       It concludes

the accident was seepage of manure into the well.                          However, if

the Falks over-applied or otherwise misapplied manure to their

farmland,     the     accident       might     instead    be     considered        that

misapplication.          If the accident was the Falks' misapplication

of manure to their farmland, then there may have been just one

occurrence in this case.             The record does not reveal how many

times the Falks fertilized their land in early 2011 or whether

it   was    one     particular       application    of     fertilizer,        or     the

cumulative    effect      of   multiple      applications       over   a    period   of

time, that caused manure to seep into their neighbors' wells.

     ¶125 These      are    fact     questions    that    the    summary      judgment

record does not resolve.           Summary judgment should not be granted

on this issue before the parties have the opportunity to further

develop the factual record.

                                          V

     ¶126 I       turn    to   the     Farm    Chemicals        Limited      Liability

Endorsement.      The endorsement states in relevant part:

     "We" pay those sums which an "insured" becomes legally
     obligated to pay as damages for physical injury to
     property if:

     1. The injury is caused by the discharge, dispersal,
     release, or escape of chemicals, liquids, or gases
     into the air from the "insured premises". The injury
     must be caused by chemicals, liquids, or gases that
     the "insured" has used in the normal and usual
     "farming" operations[.]

                                          16
                                                No.   2013AP691 & 2013AP776.ssa


       ¶127 The endorsement includes various exclusions, as well.

The exclusion relevant here is as follows:

       This coverage does not apply to any loss, cost, or
       expense arising out of any requests, demands, orders,
       claims, or suits that the "insured" or others test
       for, monitor, clean up, remove, contain, treat,
       detoxify, neutralize, or in any way respond to or
       assess the effects of pollutants, chemicals, liquids,
       or gases.
       ¶128 On its face, this exclusion can be read to negate all

coverage provided by the endorsement, rendering the endorsement

useless.

       ¶129 The endorsement first states that Wilson Mutual will

pay "damages for physical injury to property . . . caused by the

discharge, dispersal, release, or escape of chemicals, liquids,

or gases into the air . . . ."            The endorsement then excludes

from coverage "any loss, cost, or expense arising out of any

requests . . . or suits that the 'insured' or others . . . in

any    way   respond   to   or   assess   the   effects     of   pollutants,

chemicals, liquids, or gases."

       ¶130 Manure used as fertilizer is indisputably a liquid.

If a lawsuit against the Falks seeking money damages constitutes

a "suit that the 'insured' . . . in any way respond to . . . the

effects of" manure, then the endorsement provides no coverage at

all.

       ¶131 The    majority       opinion       adopts      this      literal

interpretation, concluding that "well contamination is excluded

under this endorsement because the Falks are being asked to




                                    17
                                                     No.    2013AP691 & 2013AP776.ssa


respond to the effects of 'pollutants.'"24                  The majority opinion

violates the rule that "[a] construction of an insurance policy

that gives reasonable meaning to every provision of the policy

is preferable to one leaving part of the language useless or

meaningless."25         The majority opinion also ignores the principles

that "ambiguous terms are to be construed in favor of coverage"

and that "exclusions are to be narrowly construed against an

insurer."26

       ¶132 Although the text of the endorsement could be clearer,

a careful reading of the text and a review of case law shows

that the exclusion at issue bars coverage only when the insured

has been ordered to undertake remediation.27                     The exclusion does

not bar coverage when, as in the instant case, the claimants

seek        to    recover     money     damages.28         By     overlooking      this

distinction,          the    majority    opinion     renders       the    endorsement

illusory and mere surplusage.

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

position         of   the   Falks,    insured   farmers,        would    not   consider



       24
            Majority op., ¶53.
       25
            Frost, 257 Wis. 2d 80, ¶21.
       26
            Id., ¶19.
       27
       See Gen. Cas. Co. of Wis. v. Hills, 209 Wis. 2d 167, 180,
561 N.W.2d 718 (1997) (when parties other than the EPA and DNR
sought compensatory monetary damages for past injuries insured
allegedly inflicted, suit was brought against insured for
damages under the policy).
       28
            Hills, 209 Wis. 2d at 185.


                                           18
                                                             No.    2013AP691 & 2013AP776.ssa


manure a pollutant under the pollution exclusion clause of the

FARMOWNERS policy.          Thus, I would not bar coverage.

       ¶134 If the majority is unwilling to adhere to this court's

longstanding       practice       of     honoring           the    expectations         of    the

reasonable insured, then I would remand the cause to the circuit

court so the parties can produce evidence regarding the Falks'

expectations       of    coverage      and   the       objective       reasonableness          of

those    expectations.           Summary     judgment             should   not     be    granted

before the parties have that opportunity.

       ¶135 If     coverage       is   barred          by    the     pollution       exclusion

clause,    coverage        is    available        to    the       Falks    under     both     the

incidental    coverages          section     and       the       endorsement.           However,

because there are insufficient facts in the summary judgment

record to determine what the occurrence was or what the number

of occurrences were in this case, I would leave that issue for

the circuit court to decide after further development of the

factual record.

       ¶136 In conclusion, I note that on the same day the court

heard argument on the instant case, it heard argument on another

case    involving       damage    caused     by        septage      and    a   substantially

similar pollution exclusion clause.                         See Preisler v. Gen. Cas.

Ins. Co., 2014 WI 135, ___ Wis. 2d ___, ___ N.W.2d ___.                                      As a

result of our new procedure for opinion preparation and mandate,

Preisler     and        Wilson    Mutual     were           on     different       orbits      of

circulation with different deadlines, there was no conference to

discuss the draft opinions, and it was difficult to make the two
opinions    consistent.           Even     upon        their      release,     the      opinions

                                             19
                                        No.   2013AP691 & 2013AP776.ssa


remain inconsistent.   The core function of courts is, of course,

consistent and reliable application of the law.     I set forth the

new procedure for opinion preparation and mandate in full in my

concurring opinion in State v. Gonzalez, 2014 WI 124, ¶¶25-40,

___ Wis. 2d ___. ___ N.W.2d ___ (Abrahamson, C.J., concurring).

    ¶137 For the reasons set forth, I dissent.




                                20
    No.   2013AP691 & 2013AP776.ssa




1
