Opinion
Case No. 96-0328.
Opinion released: February 4, 1997. Opinion dated: February 4, 1997. This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
APPEAL from a judgment of the circuit court for Milwaukee County: MICHAEL J. BARRON, Judge. Affirmed.
Before Fine, Schudson and Curley, JJ.
Kevin Peace, by his guardian ad litem, and Djukic Enterprises, Inc., appeal from the trial court judgment granting summary judgment to Northwestern National Insurance Company. We affirm.
Peace sued Djukic and its insurer, Northwestern, among others, alleging that he was injured by lead-based paint in his residence, which his family rented from Djukic. Northwestern denied coverage based on the policy's pollution exclusion and sought summary judgment dismissing it from the action. The trial court granted Northwestern's motion, concluding that Northwestern had no duty to defend or indemnify Djukic because the pollution exclusion precluded coverage.
Peace's complaint alleges that "between August, 1987 and March, 1989, [he] sustained lead poisoning by ingesting lead derived from paint chips, paint flakes and dust that was contaminated with lead derived from lead based paint." The Northwestern policy provided coverage for "those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies," and to "defend any `suit' seeking those damages." The policy's pollution exclusion clause, however, states that there is no coverage for "`[b]odily injury' or `property damage' arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants." The policy defined "pollutants" as: "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."
Opposing Northwestern's summary judgment motion, Peace argued that pollution exclusion clauses are intended to apply only to environmental pollution and not to residential lead poisoning cases. Peace also argued that the act of ingesting lead paint does not fall within the exclusion-triggering events of "discharge, dispersal, release or escape," and that lead paint is not a "pollutant."
Peace and Djukic jointly appeal from the trial court's summary judgment dismissal of Northwestern. For convenience, we refer to both appellants as "Peace."
The trial court rejected Peace's arguments and held that United States Fire Insurance Co. v. Ace Baking Co. , 164 Wis.2d 499, 476 N.W.2d 280 (Ct.App. 1991), controlled. In Ace Baking , this court concluded that a fabric softener, which had migrated to ice cream cones making them smell and taste of soap, was a "pollutant" in relation to the cones and, therefore, the pollution exclusion applied. Similarly, in the instant case, the trial court concluded that lead paint was a pollutant and posed a serious health risk when not confined to its former intended use of covering walls and, therefore, that the pollution exclusion precluded coverage.
We employ a de novo review of the trial court's summary judgment determination of whether Northwestern's pollution exclusion clause precludes coverage for Peace's alleged injuries and thus relieves Northwestern of any duty to defend Djukic. See American States Ins. Co. v. Skrobis Painting Decorating Inc. , 182 Wis.2d 445, 450, 513 N.W.2d 695, 697 (Ct.App. 1994) (construction and application of exclusion clause reviewed independently on appeal). We apply the criteria in § 802.08, Stats., in the same manner as the trial court. See Voss v. City of Middleton , 162 Wis.2d 737, 748, 470 N.W.2d 625, 629 (1991). Insurance contracts are to be interpreted according to what a reasonable person in the insured's position would understand the contract to mean and exclusion clauses are to be strictly construed against the insurer. Tara N. v. Economy Fire Cas. Ins. Co. , 197 Wis.2d 77, 90-91, 540 N.W.2d 26, 32 (Ct.App. 1995). Additionally, "[a]n insurance company's duty to defend an insured sued by a third party is determined solely by the allegations in that third party's complaint." Production Stamping v. Maryland Cas. Co. , 199 Wis.2d 322, 326-327, 544 N.W.2d 584, 586 (Ct.App. 1996) (citation omitted). Any question regarding whether the insurance company has a duty to defend is resolved in favor of the insured. Id.
We conclude that our recent decision, Vance v. Sukup , No. 95-2851 (Wis.Ct.App. Dec. 23, 1996, ordered published Jan. 28, 1997), is dispositive of this case. In Vance , we analyzed whether an insurer had a duty to defend based on whether there was coverage arising from a child's "`ingesting lead derived from intact accessible painted surfaces, paint chips, paint flakes and dust that was contaminated with lead derived from lead based paint at the premises.'" Id. , slip op. at 2. We concluded that, analogous to the fabric softener in Ace Baking , lead paint was a contaminant under the pollution exclusion clause "[o]nce the lead escaped from the painted surfaces . . . either by leaving the paint or because the paint itself chipped off." Id. , slip op. at 6. We went on to conclude, however, that the insurer nevertheless had a duty to defend because the plaintiff's complaint had also alleged injury resulting from "` intact' accessible painted surfaces." By contrast, the Peace complaint fails to allege any injury resulting from lead other than that "derived from paint chips, paint flakes and dust."
Additionally, Vance also rejected the argument Peace makes that pollution exclusion clauses are intended to apply only to environmental pollution and not to residential lead poisoning cases. See id. , slip op. at 8 n. 5. Accordingly, summary judgment in favor of Northwestern was proper.
By the Court. — Judgment affirmed.