Hirschhorn v. Auto-Owners
Insurance Company: The Latest
Chapter in Wisconsin’s Pollution
Exclusion Jurisprudence
by: D
aniel J. Kennedy, Gass Weber Mullins LLC
A
Introduction
cornerstone of judicial interpretation of
insurance policies in Wisconsin is that the
terms of a policy are interpreted to mean
what a reasonable person in the shoes of the insured
would understand them to mean. Statements to
this effect appear routinely in judicial opinions
construing insurance contracts.
Type the word “pollutant” into Google’s image
search engine, and among the first images you’re
likely to see are smoke stacks, chemical plants,
car exhaust, and neon green liquid oozing out of
a corrugated underground pipe. These or similar
images may be top of mind when most people
think of pollutants, but in the eyes of Wisconsin’s
appellate courts, the mind of the reasonable insured
is not so limited.
Recently, in Hirschhorn v. Auto-Owners Insurance
Company,1 the Wisconsin Supreme Court ruled
that reasonable homeowners would understand
that a standard pollution exclusion applied to the
accumulation of bat guano in the walls of their
vacation home and to the attendant odor that spread
throughout the home, rendering it uninhabitable.
The court’s holding was the latest in a line of cases
stretching back more than twenty years which have
gradually expanded the scope of substances and
situations to which these exclusions apply. A review
of these cases, including Hirschhorn, is instructive
to highlight those considerations which may be
of increasing importance to the interpretation and
application of these exclusions in Wisconsin in the
future.
The Evolution of the Standard Pollution
Exclusion
Pollution exclusion clauses began to appear in
commercial general liability policies in the 1970s
in response to insurance industry concerns about
increased liability for environmental contamination.
These concerns arose in part because of new state
and federal legislative and regulatory action aimed
at holding those responsible for environmental
disasters and widespread contamination by toxic
or hazardous substances also responsible for
remedial costs.2 The first version of the standard
clause provided a “qualified” exclusion which
only applied if a discharge of pollutants was not
“sudden and accidental,” and litigation inevitably
ensued in Wisconsin and other jurisdictions over
the meaning of this limitation. 3 The qualified
exclusion eventually was replaced by what the
insurance industry advertised as “absolute” or
“total” exclusions, which omitted the “sudden and
accidental” language to further clarify the intent to
limit liability.
While the specific wording of pollution exclusion
clauses varies from policy to policy, most consist
of two components: (1) a description of the
substances that constitute a “pollutant”; and (2) an
enumeration of the means by which a “pollutant”
may be disseminated. For example, in Hirschhorn,
the exclusion defined a “pollutant” as “any solid,
liquid, gaseous or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis,
chemicals, liquids, gases and waste,” and further
defined waste as “includ[ing] materials to be
recycled, reconditioned or reclaimed.”4 Coverage
was excluded for losses caused by the “discharge,
1
release, escape, seepage, migration or dispersal”
of such substances.5 Confronted with definitional
language that is capable of being read very broadly,
some courts have read these clauses, in light of their
drafting history and underlying purpose, to apply
only to injuries caused by traditional environmental
pollution.6 As discussed below, Wisconsin courts
have turned away from this tradition-focused
analytical approach and have instead grounded
their analysis on the plain meaning of the terms
in these exclusions, allowing the expectations and
understanding of a reasonable insured to stand as
the primary limiting principle in their construction.
Early Wisconsin Court of Appeals Decisions
In 1991, the Wisconsin Court of Appeals held that
a pollution exclusion excluded coverage for a loss
that occurred when ice cream cones stored in a
warehouse near fabric softener were affected by
a fragrance additive in the softener. The additive
caused the cones to smell and taste like soap. Unlike
the standard exclusions, the pollution exclusion at
issue in United States Fire Ins. Co. v. Ace Baking
Co.7 did not define the term “pollutant.” The
circuit court found the term ambiguous and ruled,
consistent with the exclusion’s original purpose, that
a reasonable insured would understand the term to
apply only to toxic materials that would adversely
affect the environment or a person’s health. The
court of appeals disagreed and employed a different
analytical framework, one that focused on the effect
of the substance upon the insured’s property. Using
that approach, the court found no ambiguity—the
“essence” of the exclusion combined with the broad
dictionary definition of “pollutant” meant that a
reasonable insured would understand the additive to
be a “pollutant” in relation to the ice cream cones,
even though the additive was harmless when used
and contained as intended.8
insured obscured the vision of motorists driving
on a nearby highway, leading to a multi-vehicle
accident. Although “smoke” was specifically listed
in the exclusion, the court of appeals rejected the
insurer’s argument that a reasonable insured could
only understand that the drifting of smoke across
the highway constituted a discharge or release of
a specifically enumerated “pollutant.” Instead, the
court ruled that another, narrower reading of the
clause was also reasonable, one which excluded
coverage only where harm was caused “by the toxic
nature” of the substance at issue.10 Having declined
to limit itself to what might be considered a “literal”
reading of the clause, the court proceeded to examine
the “nature and purpose” of the clause to resolve the
ambiguity it had found. A review of that history,
wrote the court, revealed an underlying concern
“about liability…from environmental accidents
such as oil spills and under federal environmental
legislation.”11 In light of this history, the court
ruled that a reasonable insured would understand
the exclusion to be limited only to damage caused
by a substance’s toxic properties.
Donaldson: The Wisconsin Supreme Court
Endorses a Common Sense Limit
In 1997, the Wisconsin Supreme Court considered
the scope of a standard pollution exclusion clause
in Donaldson v. Urban Land Interests, Inc.12 The
substance at issue in Donaldson was exhaled carbon
dioxide, which had accumulated to excessive and
unhealthy levels in an office building due to an
inadequate ventilation system. A divided panel
of the court of appeals sided with the building
manager’s insurer, finding that the carbon dioxide
constituted a “gaseous irritant” and thus fit within
the exclusion’s definition of a pollutant. In contrast
to Beahm, the panel majority also rejected the
insured’s argument that the exclusion applied only
to environmental damage, refusing to consider the
9
Two years later, in Beahm v. Pautch, the court exclusion’s historical roots and instead focusing
of appeals used a different approach to determine exclusively on the language of the exclusion.13
whether a pollution exclusion encompassed a
claimed loss. The issue in Beahm was whether The supreme court, despite acknowledging the
the exclusion precluded coverage for damages clause’s broad application, nonetheless agreed
caused when smoke from a grass fire set by an with the dissenting appeals court judge that the
2
term “pollutant” was ambiguous as applied to
exhaled carbon dioxide.14 Rather than invoking
the underlying purpose and drafting history of the
standard pollution clause to define its outer limits,
however, the supreme court instead invoked a more
amorphous, pragmatic principle of reasonableness,
citing a decision by the Seventh Circuit which
characterized injuries resulting from “everyday
activities gone slightly, but not surprisingly awry”
as beyond the scope of the exclusion.15
A year later, the court of appeals melded the
approaches set forth in Beahm and Donaldson
to find a pollution exclusion applicable only to
damage caused by the toxic nature and properties of
raw sewage which had backed up into a residential
basement. The clause at issue in Guenther v. City of
Onalaska16 excluded coverage for claims arising out
of “contamination or alleged contamination of any
environment by pollutants.” The court of appeals
concluded that raw sewage could be considered
a “pollutant” but, citing Beahm and the policy’s
definition of “contamination,” held that coverage
was excluded only for damage attributable to the
toxic nature of the discharged substance.17 To
define the expectations of a reasonable homeowner,
the court of appeals relied, as it had in Beahm, on
the standard exclusion’s drafting history. That
history reflected an intent to exclude coverage
for “catastrophic damages” resulting from
environmental accidents.18 The court of appeals
also followed Donaldson’s lead in looking to the
nature of the event—a sewer backup—which
it deemed a “routine occurrence” that had gone
slightly awry.19 In discussing this point, the court
analogized the backup to another occurrence—the
flaking and chipping of lead paint off of the walls of
a home—that it had recently deemed to be routine
in Peace v. Northwestern Nat’l Ins. Co.,20 and thus
not excludable from coverage under a standard
pollution exclusion.
Peace: The Primacy of Plain Meaning
But in 1998, the Wisconsin Supreme Court reversed
the court of appeals’ decision in Peace and clarified
the analytical approach to the interpretation of
pollution exclusion clauses.21 At the outset of its
analysis, the court confirmed that its task was to
ascertain and apply the plain and ordinary meaning
of certain undefined terms used in the exclusion. To
do so, the court first looked to the broad dictionary
definitions of the terms “contaminant,” “irritant,” and
“chemical.” The court next considered the nature of
the substance at issue—lead—noting that ingestion
of lead posed significant risks to physical health for
both children and adults. Seemingly comfortable
with assuming that a reasonable insured would
interpret the scope of the clause consistent with the
broad dictionary definitions of its component parts,
the court had little difficulty concluding that the
text of the clause was not ambiguous when read in
relation to the facts of the case—lead from paint
chips, flakes, or dust was either an “irritant” or a
“contaminant” for the purpose of the exclusion.22
The court concluded next that the process of paint
chipping, flaking, or turning into dust satisfied the
exclusion’s requirement that there be a dispersal,
release, discharge, or escape. Again, the court
determined that this requirement was met by relying
on the broad dictionary definitions of these terms to
determine their plain meaning.23
The court then rejected the notion that the clause
was susceptible to more than one reasonable
interpretation, and thus ambiguous. Relying on
authority from other jurisdictions, the court pointed
again to the broad scope of the term “pollutant” in
the policy and also the widely recognized dangerous
and toxic properties of lead.24 The court declined
to adopt a reading of the clause that would limit
its scope to industrial or environmental pollution
because the exclusion’s plain meaning supported
a broader scope.25 Even had the court considered
the exclusion’s drafting history, the court wrote, it
would not have altered the analysis, as the evolution
of the standard exclusion showed a consistent intent
to expand the scope of the clause beyond traditional
forms of environmental pollution.26
Finally, while the supreme court acknowledged that
the Seventh Circuit had identified “paint peeling off
a wall” as an example of a situation outside the scope
of the exclusion under its “everyday activities gone
slightly, but not surprisingly awry” formulation,
3
the court neverthless concluded that the state of
awareness regarding the dangers of lead sufficiently
supported the conclusion that a reasonable insured
would understand that the exclusion applied to the
ingestion of lead from paint that had chipped or
flaked off of an apartment wall.27
Decisions issued by the court of appeals in the years
following Peace generally tracked the teachings of
Donaldson and Peace, while also foreshadowing
aspects of the supreme court’s decision in
Hirschhorn. The court of appeals found a pollution
exclusion unambiguous and applicable to damage
resulting from a strain of bacteria found in a food
preparation company’s products in Landshire Fast
Foods of Milwaukee, Inc. v. Employers Mut. Cas.
Co.,28 and rejected the insured’s argument that the
terms “contaminant” and “pollutant” applied only
to “inorganic matter.” The court characterized this
argument as an invocation of the ejusdem generis
interpretive canon, under which a general term
appearing at the end of an enumerated list of specific
examples is interpreted to include only those things
of the same type as those listed.29
State Farm Fire & Cas. Co. v. Acuity raised the
question of whether a pollution clause excluded
coverage for the loss of use of a home caused by the
odor of fuel oil located in underground storage tanks
that escaped while the tanks were being removed.
The insured argued that the odor from the fuel oil
was not a “pollutant” under the policy and that the
exclusion did not apply because the homeowners
lost the use of their property because of a non-toxic
property of the oil—its smell. The court of appeals
disagreed; the parties had accepted that the oil
itself was a pollutant and the court ruled that the
odor was a “manifestation of the fuel oil’s escape”
and thus had arisen out of the spill as required by
the exclusion.31 Drawing on the broad language of
the exclusion, the court reached two conclusions
regarding the expectations of a reasonable insured:
(1) a reasonable insured would not separate the
substance into its toxic and non-toxic (yet still
contaminating) properties; and (2) the escape of
oil from an underground tank during its removal
was the kind of activity a reasonable insured would
associate with contamination or pollution.32
30
4
Finally, in Langone v. American Family Mut. Ins.
Co.,33 the court of appeals held that a standard
exclusion was ambiguous as applied to the
accumulation of carbon monoxide in a rental
apartment. Citing Peace, the court first considered
the plain language of the exclusion, including the
broad dictionary definitions of the terms “irritant”
and “contaminant.” This time, however, the
court concluded that those definitions did not
unambiguously apply to a build-up of carbon
monoxide.34 The court next considered the nature of
the substance, noting its similarity to carbon dioxide
as a “potentially hazardous” substance that most
persons are exposed to daily in small quantities.35
Finally, the court looked to the expectations of
a reasonable insured and characterized the case
as involving a “sick building” in which, as in
Donaldson, persons had been injured when “an
omnipresent substance became concentrated
due to a ventilation defect.”36 Because such a
concentration could fairly be characterized as
an ordinary condition gone slightly awry, it was
beyond the scope of the exclusion.
As Hirschhorn made its way up to the Wisconsin
Supreme Court, the analysis of pollution exclusion
clauses in Wisconsin had evolved away from
interpreting the text in light of the clause’s origins
and underlying purpose to placing increased
emphasis on the breadth of the terms comprising
the exclusion, and limiting its reach only through
a pragmatic reasonable expectations analysis that
was informed by the nature of the substance and the
circumstances of its dissemination. As discussed
below, Hirschhorn continues this trend.
Hirschhorn and Beyond
The plaintiffs in Hirschhorn owned a vacation
home in northern Wisconsin which they listed
for sale in 2007. An inspection of the home in
connection with the planned sale uncovered the
presence of bats and the accumulation of bat guano
between the walls and exterior siding of the home.
The Hirschhorns also discovered a “penetrating
and offensive odor” throughout the home that
was traced to the accumulated bat guano and that
prevented them from staying in the home. The
Hirschhorns’ insurer denied coverage for loss of the insured might interpret “waste” as referring only to
home, citing the pollution exclusion among other “material…left over from a manufacturing process
policy provisions.37
or industrial operation.”41 The court of appeals
also observed that the exclusion’s use of the terms
After having the home demolished, the Hirschhorns “discharge, release, escape, seepage, migration or
filed suit against Auto-Owners seeking to recover dispersal” did not call to mind biological processes
for the loss of the home. The Hirschhorns alleged such as the movement of animal excrement.42
that the home and its furnishings were rendered Though not explicitly characterized as such, the
unusable and unsaleable due to the penetrating bat court of appeals’ limiting construction of the
guano odor. Initially, the circuit court sided with exclusion clause harkened back to earlier decisions
the Hirschhorns, ruling that the loss of the home in which similar clauses had been construed to
fell within the terms of the policy and was not apply only to traditional forms of environmental or
excluded by the pollution exclusion. Specifically, industrial pollution.
the circuit court characterized the Hirschhorn’s
loss as unlike “traditional pollution cases.”38 Upon Auto-Owners appealed the court of appeals’
reconsideration, however, the circuit court reversed determination on coverage, and the Wisconsin
course, concluding that bat guano fell within the Defense Counsel filed an amicus brief aligned with
term “waste” and was therefore a “pollutant” and the insurer.43 The supreme court, in an opinion
that the odor emanating therefrom had dispersed by Justice Ziegler, reversed the court of appeals’
throughout the home, causing the loss.39
decision. The majority concluded that (1) bat guano
in the Hirschhorns’ home fell unambiguously within
The Hirschhorns appealed, and the court of appeals the exclusion’s definition of “pollutant”; and (2) the
reversed the circuit court’s decision.40 Looking to the damage to the home resulted from a “discharge,
supreme court’s decisions in Donaldson and Peace release, escape, seepage, migration or dispersal” of
for guidance, the court of appeals concluded that the guano.44
bat guano was more analogous to exhaled carbon
dioxide than lead in paint chips, both “biologically” At the outset of its analysis, the court flagged its
and in terms of how a reasonable insured would disagreement with the analytical approach used
view it in relation to the exclusion.
by the court of appeals, stating that that the plain
and ordinary meaning of policy terms is not to
In both the court of appeals and the supreme court, be circumscribed through the use of canons of
the parties’ disagreement over the scope of the construction.45 The court next considered whether
clause revolved around how a reasonable insured bat guano constituted a “pollutant.” Looking to its
would interpret the undefined term “waste.” Auto- decisions in Donaldson and Peace for guidance, the
Owners looked to the dictionary, arguing that bat court concluded that bat guano fell unambiguously
guano fell within the broad definition of “waste” within the dictionary definitions of “contaminant”
and was a “contaminant” and an “irritant” under and “irritant” which had been employed in Peace.
the exclusion, as was the odor which had spread The “unique and largely undesirable” nature of
throughout the home. In contrast, the Hirschhorns the substance at issue (and the physical ailments
argued, and the court of appeals agreed, that a connected to exposure to it) were also important in
reasonable insured would read the term “waste” in reaching this conclusion.46
the context of the words that preceded it—“smoke,
vapor, soot, fumes, acids, alkalis, chemicals, liquids The supreme court then turned to the term “waste,”
[and] gases.” Thus, although “waste” could be whose presence in the exclusion further supported
construed broadly enough to include animal waste, the court’s conclusion. Disagreeing with the
a reasonable insured would not invariably do so. Hirschhorns that “waste” could be subject to more
Instead, in light of the aforementioned preceding than one reasonable interpretation, the court stated
terms, the court of appeals ruled that a reasonable syllogistically that because bat guano consisted of
5
urine and feces, and because those substances were
“commonly understood” to be waste (as exemplified
by the appearance of “waste” in the dictionary
definitions of urine and feces), a reasonable insured
would invariably understand guano to constitute
“waste” for the purpose of the exclusion.47
Finally, the Hirschhorn court disavowed the court
of appeals’ narrow construction of “waste” as
pertaining only to “industrial-type pollutants.” The
supreme court’s discussion reflects its belief that
the court of appeals had put the cart before the horse
in using the ejusdem generis canon of construction
to find ambiguity in the exclusion, rather than to
resolve it.48
Moving to the second prong of its analysis, the
court once again focused on dictionary definitions
of the words “discharge,” “release,” “escape,”
“seepage,” “migration,” and “dispersal” to define
how a reasonable insured would interpret these
terms. Tying the various definitions together, the
court reasoned that the Hirschhorns’ allegation
that an odor emanated from the guano implied that
the guano had “somehow separated from its once
contained location between the home’s siding and
walls and entered the air, only to be absorbed by
furnishings inside the home.”49 This dynamic was
sufficient for the court to determine that the damage
to the home stemmed from a “discharge, release,
escape, seepage, migration or dispersal” of the
guano.
Conclusion
From the fragrance additive in Ace Baking, to
carbon dioxide in Donaldson, lead paint chips
in Peace, and now bat guano in Hirschhorn,
Wisconsin’s pollution exclusion jurisprudence has
touched on a variety of substances and situations.
It is appropriate to consider the evolution of that
jurisprudence to highlight those considerations
which appear to be of increasing importance
to the interpretation of these exclusions. First,
reliance on dictionary definitions has displaced
reference to the exclusion’s original animating
purpose as the predominant means of determining
6
what a reasonable insured would understand a
pollution exclusion to mean. Nonetheless, the
courts have acknowledged that an overarching
notion of reasonableness must be layered on top
of this search for “plain and ordinary” meaning
to avoid reading the exclusion so broadly as to
remove any meaningful limitations. In addition, a
consistently important factor throughout the cases
is the nature of the substance and the circumstances
and effects of its dissemination. Especially in
cases involving exposure to humans, substances
that are toxic or otherwise commonly understood
to pose risks of physical harm are more likely to
fall within the definition of a “pollutant.” In cases
where dissemination leads to property damage,
an important factor is the effect the substance has
on the property, specifically whether it renders
the property unfit for its intended use. Defense
practitioners should keep these considerations in
mind when analyzing the applicability of pollution
exclusion clauses.
Daniel Kennedy is a 2004 graduate of the University of Illinois College of Law and an associate at
Gass Weber Mullins LLC in Milwaukee. His practice encompasses a wide variety of civil litigation
matters, including products liability, professional
negligence, insurance coverage and personal injury defense. He can be reached at [email protected].
References
1
2
3
4
5
6
7
8
2012 WI 20, 338 Wis. 2d 761, 809 N.W.2d 529.
The history and evolution of the standard pollution exclusion clause has been the subject of considerable judicial
and academic discussion. See, e.g., American States Ins.
Co. v. Koloms, 687 N.E.2d 72 (Ill. 1997); Belt Painting
Corp. v. TIG Ins. Co., 795 N.E.2d 15 (N.Y. 2003); Morton
Int’l, Inc. v. General Accident Ins. Co., 629 A.2d 831, 848869 (N.J. 1993).
See, e.g., Just v. Land Reclamation, Ltd., 155 Wis. 2d 507,
456 N.W.2d 570 (1990) (holding that the term “sudden”
was ambiguous and construing it in favor of the insured to
not apply to “unexpected and unintended” damage); Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 678-79,
476 N.W.2d 593 (Ct. App. 1991).
Hirschhorn, 338 Wis. 2d 761, ¶ 5.
Id.
See, e.g., Koloms, 687 N.E.2d at 82.
164 Wis. 2d 499, 476 N.W.2d 280 (Ct. App. 1991).
Id. at 504-05. The court of appeals employed this “in re-
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
lation to” approach several years later in Richland Valley
Prods., Inc. v. St. Paul Fire & Ins. Co., 201 Wis. 2d 161,
548 N.W.2d 127 (Ct. App. 1996). In that case, the court
looked to dictionary definitions of the term “contamination” and determined that the term was unambiguous and
encompassed the movement of a brine solution into a coil
submerged in the solution, where it mixed with ammonia
circulating through the coil and a connected refrigeration
system and caused damage.
180 Wis. 2d 574, 510 N.W.2d 702 (Ct. App. 1993).
Id. at 581.
Id. at 584.
211 Wis. 2d 224, 564 N.W.2d 728 (1997).
Donaldson v. Urban Land Interests, 205 Wis. 2d 408, 418,
556 N.W.2d 100 (Ct. App. 1996).
Donaldson, 211 Wis. 2d at 231-32.
Id. at 233 (discussing Pipefitters Welfare Educ. Fund v.
Westchester Fire Ins. Co., 976 F.2d 1037, 1043-44 (7th Cir.
1992)). The supreme court in Donaldson also relied on the
ubiquitous and usually benign character of carbon dioxide
as a consideration that would shape a reasonable insured’s
understanding of whether it would fall within the policy’s
definition of “pollutant.” 211 Wis. 2d at 234.
223 Wis. 2d 206, 588 N.W.2d 375 (Ct. App. 1998).
Id. at 215.
Id.
Id. at 216.
215 Wis. 2d 165, 573 N.W.2d 197 (Ct. App. 1997).
Peace v. Northwestern Nat’l Ins. Co., 228 Wis. 2d 106,
119, 596 N.W.2d 429 (1999).
Id. at 122-125, 136.
Id. at 126-130.
Id. at 132-138. The court contrasted the well-known dangers of lead to the carbon dioxide at issue in Peace, which
had been described as “universally present and generally
harmless in all but the most unusual circumstances.” Id.
at 137.
Id. at 140.
Id. at 142.
Id. at 145-147.
2004 WI App 29, 269 Wis. 2d 775, 676 N.W.2d 528.
Id., ¶ 13; Hirschhorn, 338 Wis. 2d 761, ¶ 35 n.7.
2005 WI App 77, 280 Wis. 2d 624, 695 N.W.2d 883.
Id., ¶¶ 12-14.
Id., ¶ 17.
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
2007 WI App 121, 300 Wis. 2d 742, 731 N.W.2d 334, review denied, 2007 WI 134, 305 Wis. 2d 128, 742 N.W.2d
526.
Id., ¶ 17.
Id., ¶¶ 18-20.
Id., ¶ 26.
Hirschhorn, 338 Wis. 2d 761, ¶¶ 5-11. Auto-Owners first
denied the Hirschhorn’s claim on the grounds that the accumulation of bat guano was not “sudden and accidental”
and that the policy’s inadequate maintenance exclusion applied. Auto-Owners later revised its denial to include the
ground that bat guano constituted a “pollutant” for the purpose of the policy’s pollution exclusion clause.
Id., ¶ 15.
Id., ¶¶ 12-17.
Hirschhorn v. Auto-Owners Ins. Co., 2010 WI App 154,
330 Wis. 2d 232, 792 N.W.2d 639.
Id., ¶¶ 11-13.
Id., ¶ 15.
In its brief, the WDC argued that the court of appeals’ decision had improperly used the ejusdem generis canon to
construe the term “waste” in a manner inconsistent with its
plain meaning; that the court’s decision was inconsistent
with the reasonable expectations of Wisconsin homeowners; and that the decision would serve as a disincentive to
homeowners to inspect and monitor the condition of homes
that may not be occupied continually throughout the year.
In a rare twist, the WDC’s submission of a brief prompted
the Hirschhorns to file a motion for leave to submit a brief
responding specifically to the WDC’s arguments, which
the supreme court granted.
Hirschhorn, 338 Wis. 2d 761, ¶ 4.
Id., ¶ 24.
Id., ¶¶ 33, 37.
Id., ¶ 34.
Id., ¶ 36. The role of the ejusdem generis canon of construction in the interpretation of policy language formed
the crux of the disagreement between Justice Ziegler’s majority opinion and the dissenting opinion authored by Chief
Justice Abrahamson. Accusing the majority of “explicitly
ignor[ing] context,” the dissent wrote that reasonable insureds determine what a term in a policy means by considering the terms that surround it. Id., ¶¶ 52-55.
Id., ¶ 46.
7