|
COURT OF APPEALS DECISION DATED AND FILED October 23, 2002 Cornelia G. Clark Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
APPEAL from a judgment of the circuit court for Winnebago County: bruce schmidt, Judge. Affirmed.
Before Nettesheim, P.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Alyssa L. Due, by her guardian ad litem, and her parents, Brett and Dawn M. Due (Due), and John B. King and Timberlane, LLC (King) appeal from a summary judgment in favor of The Cincinnati Insurance Company which held that Cincinnati did not owe coverage to King for Alyssa’s personal injuries arising from exposure to lead in the house her parents rented from King. We affirm.
¶2 The following facts are undisputed. Alyssa’s parents rented the house from King several months before she was born. At her one-year checkup, Alyssa had elevated levels of lead in her blood. The house had lead-based paint and lead-based varnish on numerous surfaces, although there was no flaking or peeling paint or varnish in the home. But Alyssa’s mother observed Alyssa with her mouth on varnished windowsills. There was also some lead in the soil around the house. After lead remediation work in the house, Alyssa’s lead levels returned to normal. Alyssa and her parents sued King for Alyssa’s personal injuries stemming from the elevated lead levels she experienced.
¶3 King’s primary commercial general liability insurer was Mt. Morris Mutual Insurance Company. Cincinnati was King’s commercial umbrella liability insurer. The Mt. Morris policy contains an endorsement stating that the policy does not apply to “actual or alleged bodily injury that results directly or indirectly from the ingestion, inhalation or absorption of lead in any form.” The Mt. Morris policy also contains a general pollution exclusion clause.
¶4 Cincinnati’s policy has a general pollution exclusion clause, not a lead-specific pollution exclusion clause. Additionally, ¶13d of Cincinnati’s policy excludes from coverage “[a]ny liability caused by pollutants excluded by ‘underlying insurance.’”
¶5 The circuit court concluded on summary judgment that the Mt. Morris policy has an unambiguous lead liability exclusion and a more general pollution exclusion and that Mt. Morris does not owe coverage for Due’s claim. Among other reasons for granting summary judgment, the court concluded that regardless of how Alyssa was exposed to the lead, ¶13d of the Cincinnati policy excluded coverage for any claim also excluded by the underlying insurer, Mt. Morris. Due and King appeal.[1]
¶6 On appeal, Due and King argue that there are material factual questions as to how Alyssa came in contact with the lead and that a reasonable insured in King’s position would not have known that the Cincinnati policy excluded coverage for Due’s claim.
¶7 We
review decisions on summary judgment by applying the same methodology as the
trial court. M & I First
Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536
N.W.2d 175 (Ct. App. 1995). That methodology has been recited often and
we need not repeat it here except to observe that summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. at 496-97.
¶8 Paragraph 13d of
Cincinnati’s policy excludes liability caused by pollutants excluded by Mt.
Morris. Lead is a recognized pollutant
within the meaning of a general pollution exclusion such as the one in Mt.
Morris’s and Cincinnati’s policies. See
Peace v. Northwestern Nat’l Ins. Co., 228 Wis. 2d 106,
130 n.16, 596 N.W.2d 429 (1999). Cincinnati’s
¶13d is not ambiguous, and no reasonable insured could miss its
significance: if Due’s claim is
excluded by the Mt. Morris policy, it is also excluded by the Cincinnati
policy. Neither Due nor King has appealed from the circuit court’s determination
that Mt. Morris does not owe coverage.
¶9 Due
and King argue that coverage is required by Peace. This argument ignores the fact that the Mt.
Morris policy has an additional clause which specifically excludes liability
arising from exposure to lead in any form and in any manner. The lead exclusion, which was made by
endorsement, became part of the policy, see Budget Rent-A-Car
Systems, Inc. v. Shelby Insurance Group, 197 Wis. 2d 663, 670, 541
N.W.2d 178 (Ct. App. 1995), and ¶13d of the Cincinnati policy operates to
exclude liability for the lead exposure.
¶10 King
argues that Cincinnati’s later attempt to add, by endorsement, a specific lead
exclusion demonstrates that the original policy was ambiguous. We need not reach this argument because we
have held that ¶13d of the Cincinnati policy bars coverage.[2]
¶11 We
also reject King’s argument that even if Cincinnati does not have a duty to
indemnify, it has a duty to defend. We
have held that Cincinnati does not owe coverage. Therefore, it no longer has a duty to defend. Cf. Sch. Dist. of Shorewood v. Wausau
Ins. Cos., 170 Wis. 2d 347, 366, 488 N.W.2d 82 (1992) (insurer has a
duty to defend whenever there is a possibility of liability within the policy’s
coverage).
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Neither Due nor King has appealed from the summary judgment in favor of Mt. Morris on the coverage question.
[2] If we were to reach this argument, we would hold that where an insurance policy is not ambiguous, we do not consider materials outside the policy. Peace v. Northwestern Nat’l Ins. Co., 228 Wis. 2d 106, 140, 596 N.W.2d 429 (1999).