Mellin v. Northern Security Insurance

LYNN, J.,

dissenting. Because I believe that cat urine unambiguously falls within the terms of the insurance policy’s pollution exclusion clause, I would affirm the trial court’s ruling that this clause precludes coverage for the plaintiffs’ claims. Therefore, I respectfully dissent.

The pollution exclusion clause states that Northern does not insure against loss caused by:

Discharge, dispersal, seepage, migration, release or escape of pollutants unless the discharge, dispersal, seepage, migration, release or escape is itself caused by a Peril Insured Against under Coverage C of this policy.1

The clause contains a specific definition of “pollutants”:

Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

The ordinary meaning of contaminant, as stated by the majority, is “something which contaminates.” l Shorter Oxford English Dictionary 502 (6th ed. 2007). “Contaminate” means to “[mjake impure by contact or mixture; pollute, corrupt, infect.” Id. “Infect,” in turn, means to “[contaminate (air, water, etc.) with harmful organisms or noxious matter; make harmful to health”; and to “affect or impregnate with a (freq. noxious) substance; taint.” Id. at 1375. And finally, “taint” means to “[ajffect, esp. to a slight degree; imbue slightly with some bad or undesirable quality.” 2 Shorter Oxford English Dictionary 3166 (6th ed. 2007).

The cat urine at issue in this case fits squarely within the plain and ordinary meaning of contaminant, and is thus a “pollutant” as defined in the pollution exclusion clause. The cat urine was described as “a chemical smell similar to ammonia”; “a noxious odor”; and a “persistent, pervasive odor” that resulted in the “toxic contamination” of the apartment. Based upon these descriptions, it is clear that the cat urine, a noxious substance, imbued the plaintiffs’ apartment with a bad or undesirable quality — the chemical-like, noxious odor of cat urine. A health inspector also advised the plaintiffs to vacate the apartment due to health risks, which shows that the cat urine contaminated the air in the apartment to the extent that it made it harmful to health. In short, the cat urine plainly qualifies as a pollutant as defined by the pollution exclusion clause.

Because the term “pollutant” is unambiguously defined within the policy in clear language, I would not look beyond the policy language in *559determining that the plaintiffs’ claims are precluded by the pollution exclusion clause. See Barking Dog, 164 N.H. at 83-84. This approach is in keeping with the rulings of many courts, which likewise interpret pollution exclusion clauses by looking to the plain meaning of the terms as defined in the text of such clauses. See, e.g., United Fire & Cas. v. Titan Contractors Service, 751 F.3d 880, 884 (8th Cir. 2014); American States Ins. Co. v. Nethery, 79 F.3d 473, 475-76 (5th Cir. 1996); Mountain States Mut. Cas. Co. v. Roinestad, 296 P.3d 1020, 1024-25 (Colo. 2013); Bituminous Cas. v. Sand Livestock Systems, 728 N.W.2d 216, 221 (Iowa 2007); Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 637 (Minn. 2013); State Farm Fire & Casualty Co. v. Dantzler, 852 N.W.2d 918, 925 (Neb. 2014); TravCo Ins. Co. v. Ward, 736 S.E.2d 321, 329-30 (Va. 2012); Peace v. Northwestern Nat. Ins., 596 N.W.2d 429, 438-39 (Wis. 1999).

The majority, on the other hand, states that a “purely literal interpretation” of pollutant, as defined within the exclusion clause, would “stretch the intended meaning of the policy exclusion” and potentially lead to absurd results. Supra at 552; see Century Sur. Co. v. Casino W., Inc., 329 P.3d 614, 617 (Nev. 2014). It points out that such everyday objects as “soap, shampoo, rubbing alcohol, and bleach” could be considered pollutants under a plain reading of the statutory language. Supra at 552; see Century Sur. Co., 329 P.3d at 617. Accordingly, the majority concludes that the “definitional phrase ‘any... irritant or contaminant’ is too broad to meaningfully define pollutant within the policy.” Supra at 552.

But merely because the exclusion is broad does not mean that it eludes definition and is thus ambiguous, and it is ambiguity, not breadth, that provides the license for us to look beyond the policy’s text. “The pertinent inquiry is not. . . whether the policy’s definition of ‘pollutant’ is so broad that virtually any substance . . . could be said to come within its ambit.” Madison Const. v. Harleysville Mut. Ins., 735 A.2d 100, 107 (Pa. 1999). “Rather, guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts, we focus on the specific product at issue.” Id. That many items could satisfy the definition of “pollutant” does not change the fact that this term is clearly defined in the policy, making it improper to set aside the policy’s language in order to redefine the term using outside sources. See Landshire Fast Foods v. Employers Mut. Cas., 676 N.W.2d 528, 532 (Wis. Ct. App. 2004) (“[Although various forms of matter can constitute contamination, the term is not itself reasonably susceptible to multiple meanings.” (quotation omitted)); see also Weaver v. Royal Ins. Co. of America, 140 N.H. 780, 782 (1996) (“Where disputed terms are not defined in the policy... we construe them in context and in the light of what a more than casual reading of the policy would reveal to an ordinarily intelligent insured.” (quotation omitted; *560emphasis added)). Because “pollutant” is clearly defined in the policy, and thus not ambiguous, this court’s analysis should be limited to the terms of the policy. See White v. Vermont Mutual Insurance Co., 167 N.H. 153, 157 (2014).

Because the majority reaches the contrary conclusion that the term “pollutant” is undefined, it relies upon case law which reasons that other terms used in the pollution exclusion clause, “such as ‘discharge,’ ‘dispersal,’ ‘release,’ and ‘escape,’ are terms of art in environmental law which generally are used with reference to damage or injury caused by improper disposal or containment of hazardous waste.” Western Alliance Ins. Co. v. Gill, 686 N.E.2d 997, 999 (Mass. 1997). The meaning of those same terms was at issue in Weaver, the case upon which the majority relies to conclude that the term “pollutant” is ambiguous. See Weaver, 140 N.H. at 782.

In Weaver, the court did not rely upon the plain and ordinary meaning of “discharge,” “dispersal,” “release” and “escape” in its analysis, despite the fact that these terms are in everyday usage in the English language and readily susceptible of simple dictionary definitions.2 Instead, the court resorted to extraneous sources — specifically, its understanding of the historical genesis of pollution exclusion clauses as a response to environmental litigation beginning in the 1970s — as indicative of an intent to exclude from coverage only claims of traditional environmental pollution. Id. at 782-83; see Century Sur. Co., 329 P.3d at 617; Wolters, 831 N.W.2d at 635 (citing cases). Seemingly guided by this history, it concluded that the terms “discharge,” “dispersal,” “release” and “escape” were ambiguous.3 *561Weaver, 140 N.H. at 782-83. However, “the mere fact that parties disagree on the meaning of terms does not establish ambiguity.” Sand Livestock Systems, 728 N.W.2d at 221 (quotation omitted); see also Landshire Fast Foods, 676 N.W.2d at 532. “An ambiguity exists only if the language of the exclusion is susceptible to two interpretations.” Sand Livestock Systems, 728 N.W.2d at 222 (quotation omitted). “We may not refer to extrinsic evidence in order to create ambiguity. Instead, we must enforce unambiguous exclusions as written.” Id. (citations omitted).

Nothing in the plain and unambiguous language of the pollution exclusion clause supports the Weaver court’s conclusion that these terms are meant to be defined as environmental terms of art. See Dantzler, 852 N.W.2d at 925 (“The language of the policy does not specifically limit excluded claims to traditional environmental damage; nor does the pollution exclusion purport to limit materials that qualify as pollutants to those that cause traditional environmental damage.” (quotation omitted)); Sand Livestock Systems, 728 N.W.2d at 221 (“[T]he plain language of the exclusions at issue here makes no distinction between ‘traditional environmental pollution’ and injuries arising from normal business operations.”). Thus, it is difficult to justify the Weaver court’s conclusion that these terms are ambiguous and could be reasonably read as so-called “environmental terms of art,” when the court itself created the ambiguity by resorting to outside sources, rather than the plain language, to define the terms. The majority extends Weaver3s dubious reasoning by applying it to this case, in which the term at issue — “pollutant” — is specifically defined in the policy. By relying upon Weaver3s analysis to conclude that the term “pollutant” is ambiguous, the majority likewise ignores the plain language of the policy and creates ambiguity where none exists.

Denying coverage here might be thought to produce an unfortunate result, but in my view it is the result that a correct application of the law demands. ‘Were we in a position to construe ambiguous policy language, we would indeed prefer an interpretation that avoided harsh or unreasonable results.” Catholic Med. Ctr. v. Executive Risk Indem., 151 N.H. 699, 702 (2005). “[W]hile we have the duty to construe an insurance contract in a reasonable manner, we are not free to rewrite its terms by giving them a meaning which they never had.” Id. (quotation and brackets omitted). “[W]hen a policy’s meaning and intent are clear, it is not the prerogative of the courts to create ambiguities where none exist or to rewrite the contract in attempting to avoid harsh results.” Id. at 703 (quotation omitted). I share the view of the Supreme Court of Minnesota that if the pollution exclusion *562clause is regarded as overly broad, the remedy must be found in the market place or through legislative action rather than through creative judicial construction of clear policy language. See Wolters, 831 N.W.2d at 638.

For the reasons stated above, I respectfully dissent.

ÜALIANIS, C.J., joins in this dissent.

Neither party contends that cat urine is a Peril Insured Against under Coverage C of the policy.

“Discharge” is defined as follows: “release jProm"; “[t]he act of sending or pouring out; ejection; (the rate or amount of) emission.” 1 SHORTER OXFORD ENGLISH DICTIONARY 696-97 (6th ed. 2007). “Dispersal” means “[t]he action of dispersing”; to “disperse,” in turn, means to “[d]rive, throw, or send in different directions; scatter, rout”; “[clause (esp. something unpleasant) to disappear; dispel, dissipate.” Id. at 710. “Escape” is to “leak or seep out; pass out. Of an object: come out (as if) from confinement.” Id. at 861-62. And “release” means to “Islet or make free”; “allow to move, drop, or operate, by removing a restraining part; let go.” 2 Shorter Oxford English Dictionary 2520 (6th ed. 2007).

Under the reasoning of the courts that find the pollution exclusion clause ambiguous, if the plaintiffs’ residence had been contaminated by fumes from a leaking gasoline storage tank of a commercial filling station located next door to their property, presumably this would constitute traditional environmental pollution for which coverage would be barred under the pollution exclusion clause. But if instead the fumes emanated from a leaking heating oil tank located in the basement of the plaintiffs’ own property, or a leaking gas tank of a vehicle parked in the plaintiffs’ garage, coverage would be available. It is impossible to justify such disparate results based upon the plain meaning of the language used in the pollution exclusion clause. The Supreme Court of Minnesota has acknowledged this troubling potential for inconsistent results, stating, “as attractive as it might be to use the ‘traditional environmental pollution’ definition as a route to compensation for the injured parties, that formulation has its own risks and complications.” Wolters, 831 N.W.2d at 638. The fact that the appellants did “not propose a definition of ‘traditional environmental pollution,’ ” combined with the “significant pressure on the ... government to expand the definition of what constitutes ‘pollution,’ ” led *561the court to conclude that “[t]he likely result of adopting the formulation urged by appellants would be inconsistency in determining when the absolute exclusion applies.” Id.