2014 WI 135

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2521

COMPLETE TITLE: Tina L. Preisler and Frederick W. Preisler,

 Plaintiffs-Co-Appellants-Petitioners,

 v.

General Casualty Insurance Company, Regent 

Insurance 

Company, Hastings Mutual Insurance Company and 

Secura 

Insurance, a mutual company,

 Defendants-Respondents,

Kuettel's Septic Service, LLC, 4-DK Farm, Duke 

Kuettel, 

Doug Kuettel, Dale Kuettel and Cheryl Kuettel,

 Defendants-Appellants-Petitioners.

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

Tina L. Preisler and Frederick W. Preisler,

 Plaintiffs-Appellants-Petitioners,

 v.

Chartis Specialty Insurance Company f/k/a 

American 

International Specialty Lines Insurance Company,

 Defendant,

Rural Mutual Insurance Company,

 Defendant-Respondent,

Phil's Pumping and Fab, Inc.,

 Defendant-Co-Appellant-Petitioner. 

REVIEW OF A COURT OF APPEALS DECISION

(Reported at 352 Wis. 2d 754, 843, N.W.2d 710)

(Ct. App. 2014 – Unpublished)

OPINION FILED: December 30, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 12, 2014

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Outagamie

JUDGE: Michael W. Gage

JUSTICES:

CONCURRED: BRADLEY, J., concurs. (Opinion filed.)

DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)

NOT PARTICIPATING: 
2

ATTORNEYS:

For the defendants-appellants-petitioners, there were 

briefs by Michael C. Menghini and Herrling Clark Law Firm Ltd., 

Appleton, and oral argument by Michael C. Menghini.

For the defendant-co-appellant-petitioner, there were 

briefs by Winston A. Ostrow, Jonathan T. Smies, and Godfrey & 

Kahn, S.C., Green Bay, and oral argument by Jonathan T. Smies.

For the plaintiffs-co-appellants-petitioners, there were 

briefs by James A. Olson, P. Scott Hassett, Kathryn A. Harrell, 

Daniel S. Lenz, and Lawton & Cates, S.C., Madison, and oral 

argument by James A. Olson.

For defendant-respondent Rural Insurance Company, there was 

a brief by Christine M. Rice, Matthew J. Van Keulen, and Simpson 

& Deardorff, S.C., Milwaukee. Oral argument by Christine M. 

Rice.

For defendant-respondent Hastings Mutual Insurance Company, 

there was a brief by William R. Wick, Ryan R. Graff, Katelyn P. 

Sandfort, and Nash, Spindler, Grimstad & McCracken LLP, 

Manitowoc, and oral argument by Ryan R. Graff.

For defendants-respondents General Casualty Company of 

Wisconsin and Regent Insurance Company, there was a brief and 

oral argument by Jeffrey A. Evans and von Briesen & Roper, S.C., 

Milwaukee.

For defendant-respondent Secura Insurance, there was a 

brief and oral argument by Todd Joseph Koback, John P. Runde, 

and Davczyk & Varline, LLC, Wausau.
3
2014 WI 135

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2521

(L.C. No. 2010CV2601 & 2011CV706)

STATE OF WISCONSIN : IN SUPREME COURT

Tina L. Preisler and Frederick W. Preisler,

 Plaintiffs-Co-Appellants-Petitioners,

 v.

General Casualty Insurance Company, Regent 

Insurance Company, Hastings Mutual Insurance 

Company and Secura Insurance, a mutual company,

 Defendants-Respondents,

Kuettel's Septic Service, LLC, 4-DK Farm, Duke 

Kuettel, Doug Kuettel, Dale Kuettel and Cheryl 

Kuettel,

 Defendants-Appellants-Petitioners.

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

Tina L. Preisler and Frederick W. Preisler,

 Plaintiffs-Appellants-Petitioners,

 v.

Chartis Specialty Insurance Company f/k/a 

American International Specialty Lines 

Insurance Company,

 Defendant,

Rural Mutual Insurance Company,

 Defendant-Respondent,

FILED

DEC 30, 2014

Diane M. Fremgen

Clerk of Supreme Court
2

Phil's Pumping and Fab, Inc.,

 Defendant-Co-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision 

of the court of appeals1 affirming an order of the circuit court2

that granted summary judgment to Rural Mutual Insurance Company, 

Regent Insurance Company and General Casualty Company of 

Wisconsin. Our review focuses on the interpretation of 

pollution exclusion clauses in commercial and contractor general 

liability insurance policies. 

¶2 We conclude that a reasonable insured would understand 

that decomposing septage is a "contaminant" and therefore, a 

"pollutant" as defined in the policies when it has decomposed 

and seeps into a water supply. Accordingly, we affirm the 

decision of the court of appeals, which granted summary judgment 

upon its conclusion that the pollution exclusion clause 

precluded coverage for harm resulting from the Preislers' water 

supply's contamination. 

 

1 Preisler v. Kuettel's Septic Serv., LLC, No. 2012AP2521, 

unpublished slip op. (Ct. App. Jan. 14, 2014). 

2 The Honorable Michael W. Gage of Outagamie County 

presided.
No. 2012AP2521 

3

¶3 We also conclude that the petitioners failed to 

petition this court for review of the court of appeals dismissal 

of their claims against Hastings Mutual Insurance Company and 

Secura Insurance Company on alternative grounds. We decline to 

consider issues not raised in petitions for review. State v. 

Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999); Wis. Stat. 

§ 809.62 (2011-12).3 Accordingly, those dismissals are not 

before us.

I. BACKGROUND

¶4 This review involves an insurance coverage dispute 

concerning a pollution exclusion clause commonly found in 

commercial general liability (CGL) policies. The historic facts 

are not in dispute.

¶5 Fred and Tina Preisler operate a dairy farm and raise 

cattle. A well drilled in 1972 supplied water for the 

Preislers' household and farm uses until 2008. 

¶6 Duke, Doug, Dale, and Cheryl Kuettel live on a farm 

across the road from the Preislers' farm. From that property, 

the Kuettels run a farming operation, 4-DK Farm, and a septic 

pumping service, Kuettel's Septic Service, LLC. Kuettel's 

Septic hauls, stores, and disposes of the waste it pumps from 

customers' septic tanks. Kuettel's Septic also collects waste 

from grease traps, floor pits, and car washes, which it combines 

with the human waste from septic tanks. Kuettel's Septic 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2012AP2521 

4

periodically hired Phil's Pumping and Fab, Inc. to dispose of 

septage.4

¶7 Septage is primarily composed of human urine and fecal 

material, as well as other materials disposed of in septic 

tanks, grease interceptors and portable restrooms. See Wis. 

Admin. Code § NR 113.03(55) (Feb. 2014) (defining septage). 

Septage contains nitrogen, and when septage is introduced into 

soil, it decomposes. During that biological process nitrates 

are formed. Mike O'Leary et al., Understanding Nitrogen in 

Soils, Univ. of Minn. (2002) 

http://www.extension.umn.edu/agriculture/nutrientmanagement/nitrogen/understanding-nitrogen-in-soils/. 

¶8 When nitrates are created in excess of what plants are 

able to use, nitrates can leach into water supplies. Id. The 

presence of nitrates in water supplies is a concern for human 

health as it may cause health problems in infants and may be 

implicated as a risk factor associated with chronic health and 

reproductive problems. Nonpoint Source Pollution Abatement 

Program Redesign, Nitrate in Groundwater - A Continuing Issue 

for Wisconsin Citizens 3 (1999). Additionally, high nitrate 

 

4 We will subsequently refer to Fred and Tina Preisler as 

"the Preislers." We will refer to Kuettel's Septic, 4-DK Farm, 

the individual Kuettels, and Phil's Pumping collectively as "the 

Kuettels." We will refer to the insurance companies either 

collectively as "the insurers" or individually as "Regent" or 

"Rural."
No. 2012AP2521 

5

levels may cause poor appetite or acute nitrogen poisoning in 

livestock. Id.

¶9 Fred Preisler and Duke Kuettel discussed applying 

septage on the Preislers' farm as fertilizer. Kuettel's Septic 

received permission from the Wisconsin Department of Natural 

Resources (DNR) to apply it. Kuettel's Septic applied septage 

to the Preislers' farm fields for several years.

¶10 In 2008, the Preislers experienced problems with their 

well water. The Preislers' cattle that drank the water began to 

die at an uncharacteristic rate. The Preislers further noted a 

decrease in milk production. August 2008 testing showed the 

Preislers' well water contained elevated levels of nitrates, 

which are produced as septage decomposes. The cattle deaths 

subsided later in 2008 after the Preislers drilled a new well.

¶11 The Preislers sued Kuettel's Septic in 2010 and Phil's 

Pumping in 2011. The cases were consolidated and 4-DK Farm and 

the individual Kuettels were added. The Preislers alleged 

negligence in storing and in applying septage resulting in 

nuisance and trespass. They also alleged the Kuettels were 

strictly liable for engaging in an abnormally dangerous activity 

and that Duke Kuettel violated Wis. Stat. § 100.18 by promising 

compliance with DNR regulations, failing to follow through, and 

falsifying DNR reports.

¶12 The Preislers added the parties' insurers to the suit. 

Hastings insured Kuettel's Septic under a CGL policy between 

1999 and 2005, after which Regent insured Kuettel's Septic 

(General Casualty Insurance Company did not insure any party, 
No. 2012AP2521 

6

but is affiliated with Regent). Hastings also insured 4-DK Farm 

under a CGL policy until 2007, after which Secura insured 4-DK 

Farms. Secura also provided homeowners insurance to individual 

Kuettels.5 Rural insured Phil's Pumping under a CGL policy 

between 2002 and 2013.

¶13 The Rural and Regent policies include similarly worded 

pollution exclusion clauses. They exclude harm "arising out of 

the actual, alleged, or threatened discharge, dispersal, 

seepage, migration, release or escape of 'pollutants'. . . ." 

The Rural and Regent policies also define "pollutants" similarly 

as: "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." 

 

5 The homeowners policies are not at issue in this appeal. 

They do not include pollution exclusion clauses, and the circuit 

court determined another exclusion applied. The parties do not 

challenge this determination, and we do not address it. See

Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 

(1992) (appellate courts need not consider issues not 

specifically raised on appeal).
No. 2012AP2521 

7

¶14 The insurers moved for summary and declaratory 

judgment.6 The circuit court agreed that the pollution exclusion 

clause applies to preclude coverage for alleged losses arising 

out of storage of septage and application of septage to farm 

fields that is alleged to have caused contamination of the water 

supply resulting in harm to the Preislers. The Preislers and 

Kuettels appealed, arguing septage is not a pollutant and 

therefore, the exclusion does not preclude coverage. The court 

of appeals affirmed.

¶15 On April 17, 2014 we granted the Preislers' and 

Kuettels' petitions for review. On May 21, 2014, Secura filed a 

motion for summary disposition in this court on the alternative 

basis of a limited liability endorsement. Initially, we held 

the motion in abeyance. We need not address Secura's motion as 

Secura's liability is not before us as we explain below.

II. DISCUSSION

A. Standard of Review

¶16 The Preislers and Kuettels ask the court to review the 

applicability of the pollution exclusion clause, upon which the 

 

6 Rural and Regent moved for summary judgment. Hastings and 

Secura moved for summary and declaratory judgment. All insurers 

argued they had no duty to defend or indemnify the various 

insureds. The policies we address are Regent's Contractors 

General Liability Coverage policy for Kuettel's Septic, LLC and 

Rural's Commercial General Liability Coverage policy for Phil's 

Pumping and Fab, Inc. We do not discuss the pollution exclusion

clauses in Hastings' and Secura's policies because the parties 

did not petition for review of the court of appeals' dismissal 

of claims against Hastings and Secura, on alternative grounds. 
No. 2012AP2521 

8

circuit court and the court of appeals relied to grant summary 

judgment dismissing Rural and Regent from this lawsuit. When we 

review summary judgment, we independently apply the same 

methodology as the circuit court and the court of appeals. The 

standards set forth in Wis. Stat. § 802.08 are our guides. 

Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶20, 338 Wis. 2d 

761, 809 N.W.2d 529 (reviewing summary judgment denying coverage 

for property harm from accumulation of bat guano); Siebert v. 

Wis. Am. Mut. Ins. Co., 2011 WI 35, ¶27, 333 Wis. 2d 546, 797 

N.W.2d 484 (reviewing summary judgment denying coverage in 

negligent entrustment claim); Peace v. Nw. Nat'l Ins. Co., 228 

Wis. 2d 106, 119-20, 596 N.W.2d 429 (1999) (reviewing summary 

judgment denying coverage for claims arising from ingestion of 

lead); Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 

229-30, 564 N.W.2d 728 (1997) (reviewing summary judgment 

denying coverage for injuries resulting from buildup of carbon 

dioxide). Summary judgment "shall be rendered if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law." § 802.08(2).

¶17 The parties do not dispute the material facts giving 

rise to the Preislers' loss.7 Rather, the sole issue is whether 

the pollution exclusion clause in the insurance policies 

 

7 See Preisler, No. 2012AP2521, unpublished slip op., ¶12. 
No. 2012AP2521 

9

excludes coverage for harm the Preislers allege they sustained 

due to contamination of their water supply by decomposing 

septage. The interpretation of an insurance policy is a 

question of law that we review independently. Siebert, 333 

Wis. 2d 546, ¶28.

B. Policy Interpretation

¶18 This case requires us to interpret the pollution 

exclusion clause as it applies to decomposing septage that 

entered a water supply. We must determine whether it is a 

pollutant within the meaning of the pollution exclusion clause 

of the insurance policies. The primary task in contract 

interpretation is to determine and carry out the parties' 

intentions. Hirschhorn, 338 Wis. 2d 761, ¶22; Am. Family Mut. 

Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673 

N.W.2d 65. We interpret insurance policy language according to 

its plain and ordinary meaning as understood by a reasonable 

insured. Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d 

at 120-21.

¶19 Terms, words, or phrases in an insurance policy are 

ambiguous rather than plain if they are "fairly susceptible to 

more than one reasonable interpretation." Hirschhorn, 338 

Wis. 2d 761, ¶23; accord Peace, 228 Wis. 2d at 121. Policy 

language is not ambiguous merely because more than one 

dictionary definition exists or the parties disagree about its 

meaning. Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d 

at 136. Policy language also is not ambiguous because different 
No. 2012AP2521 

10

courts have come to differing interpretations. Peace, 228 

Wis. 2d at 136. 

¶20 Policy language is ambiguous when a reasonable insured 

would read the policy to provide coverage and the language is 

susceptible to more than one reasonable interpretation. See

Donaldson, 211 Wis. 2d at 235. If coverage is ambiguous, the 

court's construction is constrained and ambiguities are 

construed against the insurer and in favor of coverage. 

Hirschhorn, 338 Wis. 2d 761, ¶23; Peace, 228 Wis. 2d at 121; 

Donaldson, 211 Wis. 2d at 230.

1. Initial grant of coverage

¶21 The insurers, in disputing the policies' grant of 

coverage to the Kuettels, are disputing their duties to defend 

and indemnify. We determine an insurer's duty to defend "by 

comparing the allegations of the complaint to the terms of the 

insurance policy." Estate of Sustache v. Am. Family Mut. Ins. 

Co., 2008 WI 87, ¶20, 311 Wis. 2d 548, 751 N.W.2d 845. 

"[A]llegations contained within the four corners of the 

complaint" trigger the duty to defend. Id. We focus on the 

nature, rather than the merits, of the claim. Id. The duty to 

defend is broader than the duty to indemnify, "insofar as the 

former implicates arguable, as opposed to actual, coverage." 

Id. We construe allegations in the complaint liberally and 

assume all reasonable inferences. Id., ¶21. The Preislers' 

complaint includes allegations of negligent septage application 

and storage by the Kuettels.
No. 2012AP2521 

11

¶22 Our procedure for determining whether coverage exists 

under an insurance policy follows three steps. First, we 

examine the facts of the insured's claim to decide whether the 

policy makes an initial grant of coverage for the claim set out 

in the complaint. Am. Girl, 268 Wis. 2d 16, ¶24. The analysis 

ends there if the policy clearly does not cover the claim. Id. 

However, if the claim set out in the complaint triggers a 

potential grant of coverage, we secondly examine whether any of 

the policy's exclusions preclude coverage for that claim. Id. 

Third, if an exclusion precludes coverage, we analyze exceptions 

to the exclusion to determine whether any exception reinstates 

coverage. Id.

¶23 The parties did not argue the Preislers' claims fall 

outside the policies' grant of coverage. The court of appeals 

assumed without deciding that the policies at issue 

affirmatively grant coverage.8 However, we nevertheless consider 

whether there is a potential grant of coverage because it aids 

in our evaluation of the historic facts in the context of the 

pollution exclusion.

¶24 Coverage is triggered by an occurrence. Regent's and 

Rural's policies provide that they "appl[y] to 'bodily injury' 

and 'property damage' only if: (1) The 'bodily injury' or 

'property damage' is caused by an occurrence." (Emphasis 

added.) The policies define "occurrence" identically: 

 

8 Preisler, No. 2012AP2521, unpublished slip op., ¶15. 
No. 2012AP2521 

12

"'[o]ccurrence' means an accident, including continuous or 

repeated exposure to substantially the same general harmful 

conditions." We interpret policy language according to its 

plain and ordinary meaning as understood by a reasonable 

insured. Hirschhorn, 338 Wis. 2d 761, ¶22; Peace, 228 Wis. 2d 

at 120-21. 

¶25 We turn to Couch on Insurance for its description of 

"occurrence" in pollution exclusion cases:

Due to the fact that most policies define an 

"occurrence" to mean an "accident," the pollution 

coverage issue often turns upon the intent of the 

insured. In making this determination, jurisdictions 

have focused on different aspects of the polluting 

process to assess the mindset of the insured. Most 

courts have focused on the damage caused by the 

pollution and have concluded that there is an 

occurrence when the insured did not expect or intend 

the resultant damage.

9 Steven Plitt et al., Couch on Insurance § 127.4 (2008).

¶26 We have interpreted whether certain circumstances fall 

within policy definitions of "occurrence." In American Girl, we 

determined that soil settlement that occurred because of faulty 

site-preparation advice of a soil engineer was an "occurrence." 

Am. Girl, 268 Wis. 2d 16, ¶38. The policy's definition of 

"occurrence" was the same as here, and we focused on defining 

"accident." Id., ¶37. We looked to a dictionary definition: 

"'The word "accident," in accident policies, means an event 

which takes place without one's foresight or expectation. A 

result, though unexpected, is not an accident; the means or 

cause must be accidental.'" Id. (quoting Black's Law Dictionary
No. 2012AP2521 

13

15 (7th ed. 1999)). We considered two causes of property 

damage, both the inadequate site-preparation advice and the 

actual settling of the soil, and found neither was intended, 

anticipated, or expected. Id., ¶38. We therefore held the 

accidental circumstances underlying the claim constituted an 

"occurrence" within the policy's definition. Id.

¶27 Interpreting American Girl, the court of appeals has 

held accidental soil contamination was an "occurrence," where 

the policy provided no definition. United Coop. v. Frontier FS 

Coop., 2007 WI App 197, ¶¶12, 15, 304 Wis. 2d 750, 738 N.W.2d 

578. The court acknowledged that American Girl required focus 

on the "event or series of events that allegedly caused the 

alleged bodily injury or property damage." Id., ¶16. United 

Coop. lacked any specific facts on how the soil contamination 

occurred, but nevertheless concluded that the contamination was 

an "occurrence" because it caused property damage to 

groundwater. Id., ¶¶20, 35. 

¶28 As with American Girl and United Coop., the facts of 

this case, if proved, present an "occurrence" triggering an 

initial grant of coverage. Here, the "accident" was the seepage 

of decomposing septage into the Preislers' water supply. 

Seepage into the water supply was not "intended, anticipated, or 

expected." Am. Girl, 268 Wis. 2d 16, ¶38. Seepage of 

decomposing septage into the water supply is an occurrence, as 

was the settling soil in American Girl and the soil 

contamination in United Coop. Id.; United Coop., 304 Wis. 2d 

750, ¶20. Here, the resulting harm is water with elevated 
No. 2012AP2521 

14

nitrate levels. See United Coop., 304 Wis. 2d 750, ¶35 (stating 

an occurrence caused property damage to groundwater).

2. Pollution exclusion

¶29 Next, we examine whether either of the policies' 

exclusions preclude coverage at the time of the occurrence. See

Am. Girl, 268 Wis. 2d 16, ¶24. Typically, to resolve whether a 

pollution exclusion applies, we first determine whether the 

substance in question falls unambiguously within the policy's 

definition of pollutants. Hirschhorn, 338 Wis. 2d 761, ¶25 

(determining whether bat guano is unambiguously a pollutant); 

Peace, 228 Wis. 2d at 119 (determining whether lead present in 

paint is unambiguously a pollutant); Donaldson, 211 Wis. 2d at 

229 (determining whether exhaled carbon dioxide is unambiguously 

a pollutant). Then, if the substance fits within the policy's 

definition of pollutants, we determine whether the alleged loss 

resulted from the "discharge, dispersal, seepage, migration, 

release or escape" of the substance under the plain terms of the 

policy's pollution exclusion clause. Hirschhorn, 338 Wis. 2d 

761, ¶25; Peace, 228 Wis. 2d at 119; Donaldson, 211 Wis. 2d at 

229. 

¶30 However, the parties do not appeal the circuit court's 

ruling that the Preislers' alleged damage resulted from the 

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

decomposing septage within the meaning of the terms in the 
No. 2012AP2521 

15

pollution exclusion clause.9 Therefore, we are presented with 

the sole inquiry of whether, at the time of the occurrence that 

triggered coverage, the decomposing septage is a pollutant 

within the policies' definition.

a. limited inquiry

¶31 We need to determine only whether decomposing septage 

is a pollutant as it seeped into the Preislers' water supply. 

There is no occurrence until that seepage into the water supply 

takes place. Our approach of construing whether a substance is 

a pollutant at the point it harms the interests of another is 

consistent with our previous pollution exclusion decisions. As 

we explain below, those decisions focused on the event giving 

rise to the alleged harm at issue, rather than on an initial 

event that may have involved a beneficial use of the substance. 

Peace, 228 Wis. 2d at 126; U.S. Fire Ins. Co. v. Ace Baking Co., 

164 Wis. 2d 499, 501, 476 N.W.2d 280 (Ct. App. 1991).

¶32 Peace and Ace Baking are particularly instructive. In 

Peace, harm resulted from the release of lead paint chips, 

flakes, and dust into a home painted with lead paint. Peace, 

228 Wis. 2d at 111. We focused not on lead intentionally used 

in paint for a beneficial purpose, but rather on release of lead 

from the paint on the walls into the air or onto the floor as 

the substance that gave rise to an occurrence under the language 

 

9 See Preisler, No. 2012AP2521, unpublished slip op., ¶39 

(failing to challenge the circuit court's conclusion at the 

court of appeals). 
No. 2012AP2521 

16

of the policy. See id. at 126 ("Conceptually, we view the lead 

not as contaminating the paint but as giving the paint the 

potential to contaminate air, water, and the human body when it 

disperses."). Therefore, although lead had a beneficial use in 

the paint when it was applied to the walls, our evaluation of 

whether lead was a pollutant was made when harm occurred. 

¶33 In Ace Baking, fabric softener and ice cream cones 

were stored in the same warehouse, and a fragrance additive to 

the fabric softener spread to the ice cream cones, making them 

taste like soap. Ace Baking, 164 Wis. 2d at 500. The court of 

appeals determined that the fragrance in the fabric softener 

became a pollutant when it spread to the ice cream cones stored 

in the same warehouse, even though the court would not have 

considered it a pollutant if it had stayed in the fabric 

softener. Id. at 505. The court said, "it is a rare substance 

indeed that is always a pollutant; the most noxious of materials 

have their appropriate and non-polluting uses." Id. Peace and 

Ace Baking support our conclusion that we apply the definition 

of pollutant at the time of the occurrence, i.e., when 

decomposing septage entered Preislers' well, rather than the 

allegedly negligent application of septage to fields.

b. reasonable insured

¶34 The pollution exclusion clause provides, "[t]his 

insurance does not apply to: . . . 'Bodily injury' or 'property 

damage' arising out of the actual, alleged or threatened 

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

'pollutants'." Each policy defines "pollutants" as "any solid, 
No. 2012AP2521 

17

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 policy does not further define contaminant.

¶35 We construe these terms according to their plain and 

ordinary meanings as understood by a reasonable person in the 

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

Peace, 228 Wis. 2d at 120-21. Our decisions in Donaldson, Peace

and Hirschhorn are instructive in determining the meaning of 

contaminant and therefore, pollutant. Furthermore, the limiting 

principles applied in Donaldson and Langone aid us in 

determining a reasonable insured's understanding of the meaning 

of pollutant and contaminant. Donaldson, 211 Wis. 2d at 232; 

Langone v. Am. Family Mut. Ins. Co., 2007 WI App 121, ¶22, 300

Wis. 2d 742, 731 N.W.2d 334.

¶36 First, in Donaldson, we held that the pollution 

exclusion clause did not preclude coverage for personal injury 

claims stemming from inadequate ventilation of exhaled carbon 

dioxide in an office building. Donaldson, 211 Wis. 2d at 235. 

We concluded a reasonable insured would not understand exhaled 

carbon dioxide to fall within the policy's definition of 

pollutants. Id. at 231-32. We recognized the pollutant 

definition was broad: "'irritant' and 'contaminant,' when 

viewed in isolation, are virtually boundless, for there is 

virtually no substance or chemical in existence that would not 

irritate or damage some person or property." Id. at 232 

(quoting Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. 
No. 2012AP2521 

18

Co., 976 F.2d 1037 (7th Cir. 1992)). Therefore, we warned that 

"[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." Id. at 233. We 

concluded that the plaintiffs' injuries resulted from an 

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

Id. (quoting Pipefitters, 976 F.2d at 1043-44). We explained it 

was significant that exhaled carbon dioxide is "universally 

present and generally harmless in all but the most unusual 

instances" and that exhaled carbon dioxide is a necessary and 

natural part of life. Id. at 234. Accordingly, we held that 

"the pollution exclusion clause is ambiguous because [the 

insured] could reasonably expect coverage on the facts of this 

case." Id. at 233.

¶37 Two years later, in Peace, we held that a pollution 

exclusion clause excluded coverage for personal injury claims 

arising out of a minor's ingestion of lead-based paint chips, 

flakes, and dust present in the insured's apartment. Peace, 228 

Wis. 2d at 110-11. We concluded once the previously contained 

pollutant, lead, "begins to disperse, discharge, or escape from 

the containment of the painted surface, it falls within the 

plain language of the pollution exclusion clause." Id. at 130. 

¶38 Before coming to our conclusion, we consulted a nonlegal dictionary to define contaminant and irritant. Id. at 

122. We applied these common definitions to the plaintiff's 

claims and concluded there was "little doubt that lead derived 

from lead paint chips, flakes, or dust is an irritant or serious 
No. 2012AP2521 

19

contaminant." Id. at 125. We noted the physical consequences 

of lead paint used in a home were well-documented. Id. at 123-

24. "Lead poisoning from paint at residential properties is 

generally caused by the inhalation of lead-contaminated dust 

particles or toxic lead fumes through respiration or the 

ingestion of lead-based paint chips by mouth. The consequences 

can be disastrous for children." Id. We distinguished 

Donaldson because lead paint chips, flakes and dust "are widely, 

if not universally, understood to be dangerous," while carbon 

dioxide is not. Id. at 137. Therefore, "[r]easonable owners of 

rental property[, the insureds,] understand their obligation to 

deal with the problem of lead paint." Id. at 138.

¶39 Most recently, in Hirschhorn, we held bat guano 

unambiguously falls within the term, "pollutants," as defined by 

the insurance policy because it constituted an irritant and a 

contaminant. Hirschhorn, 338 Wis. 2d 761, ¶¶33-34. We referred 

both to dictionary definitions of the terms and health 

consequences of human proximity to bat guano. Id., ¶33. We 

concluded a reasonable insured would consider bat guano to be 

waste, referencing the dictionary definition of the term. Id., 

¶34.

¶40 In the instant case, the issue is whether a reasonable 

insured would consider decomposing septage to be a pollutant 

when it seeps into a water supply. Again, we interpret policy 

language according to its plain and ordinary meaning as 

understood by a reasonable insured. Id., ¶22; Peace, 228 

Wis. 2d at 120-21. When determining the ordinary meaning of 
No. 2012AP2521 

20

words not defined in an insurance policy, it is appropriate to 

look to the definitions in a non-legal dictionary. Weimer v. 

Country Mut. Ins. Co., 216 Wis. 2d 705, 723, 575 N.W.2d 466 

(1998); Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 745, 

456 N.W.2d 570 (1990). 

¶41 As explained above, we accepted a non-legal dictionary 

definition of contaminant in Peace, 228 Wis. 2d at 122. We 

determined the ordinary meaning of contaminant is one that 

contaminates, and contaminate means "'[t]o make impure or 

unclean by contact or mixture.'" Id. at 122 (quoting American 

Heritage Dictionary of the English Language 406 (3d ed. 1992) 

[hereinafter American Heritage Dictionary]). 

¶42 In determining whether a substance is a contaminant 

and therefore a pollutant, the focus is on the event causing 

harm because that is the occurrence triggering coverage. Id. at 

126. Here, the event causing harm is decomposing septage 

seeping into the water supply. A reasonable insured would 

understand decomposing septage to be a contaminant when it seeps 

into a water supply. 

¶43 Handling, storing, and applying septage are activities 

regulated by both the DNR and the United States Environmental 

Protection Agency. See generally 40 C.F.R. § 503 (2013) 

(federal regulation of domestic septage); Wis. Admin. Code §§ NR 

113-114 (Feb. 2014) (state regulation of septage). Publications 

produced to guide septage haulers and storers recognize septage 

may be harmful and have the potential to affect health of humans 

and livestock. EPA, A Plain English Guide to the EPA Part 503 
No. 2012AP2521 

21

Biosolids Rule 2 (1994), available at

http://water.epa.gov/scitech/wastetech/biosolids/503pe_index.cfm

; Wis. DNR, Septage Operator Servicing Handbook and Study Guide

8-9 (2013), available at

http://dnr.wi.gov/regulations/opcert/documents/septagestudyguide

.pdf [hereinafter "WDNR Septage Handbook"]. The government's 

regulation of septage contributes to reasonable insureds' 

awareness of the health risks of septage hauling, storing, and 

application. See Peace, 228 Wis. 2d at 150 (Bradley, J., 

concurring) (noting regulatory restriction of lead use and 

pollutant status despite intentional application).

¶44 Limiting principles that consider the nature of the 

substance ensure that our construction of a pollution exclusion 

clause is consistent with the understanding of a reasonable 

insured. Donaldson, 211 Wis. 2d at 232 (citing Pipefitters, 976 

F.2d at 1043); Langone, 300 Wis. 2d 742, ¶22. These principles 

apply to aid in the overarching reasonable insured analysis. 

See Hirschhorn, 338 Wis. 2d 761, ¶30 (tying the limiting 

principle back to a reasonable insured's understanding); Peace, 

228 Wis. 2d at 136-38 (addressing limiting principle within the 

understanding of a reasonable insured); Donaldson, 211 Wis. 2d 

at 233-34 (placing limiting principles in context of a 

reasonable insured); Langone, 300 Wis. 2d 742, ¶¶17-18 

(discussing limiting principle in context of a reasonable 

insured).

¶45 One such limiting principle applies whenever the 

substance is "universally present and generally harmless in all 
No. 2012AP2521 

22

but the most unusual instances." Donaldson, 211 Wis. 2d at 234. 

In those instances, we are hesitant to conclude that such a 

substance is a pollutant. Id. Both Donaldson and Langone

considered the gasses at issue to be "universally present and 

generally harmless in all but the most unusual instances." Id.; 

see also Langone, 300 Wis. 2d 742, ¶19 ("Like carbon dioxide, 

carbon monoxide is colorless, odorless, and present in the air 

around us."). 

¶46 Individual components of septage are common.10 

Septage is a waste product with use as a farm fertilizer. 

Application of septage comes with risks to water supplies 

because decomposing septage can release high levels of nitrates, 

which can be dangerous to humans and cattle if they reach water 

supplies. WDNR Septage Handbook at 8-9. Septage is not 

generally harmless nor is it the type of pervasive substance 

considered in Donaldson and Langone. See Donaldson, 211 Wis. 2d 

at 234; Langone, 300 Wis. 2d 742, ¶19. 

¶47 A second limiting principle is that if the harm 

results from "everyday activities gone slightly, but not 

surprisingly, awry," a reasonable insured would not necessarily 

understand the substance to be a pollutant. Pipefitters, 976 

 

10 In Guenther v. City of Onalaska, 223 Wis. 2d 206, 588

N.W.2d 375 (Ct. App. 1998), the court of appeals held the 

pollution exclusion clause did not apply to the occurrence of a 

domestic sewer backup. Id. at 208. Guenther is 

distinguishable, as there the court concluded the policy covered 

damage resulting from the liquid, non-toxic nature of the sewage 

backup. Id.
No. 2012AP2521 

23

F.2d at 1043-44; accord Peace, 228 Wis. 2d at 158; Donaldson, 

211 Wis. 2d at 233. Exposure of decomposing septage to the 

Preislers' water supply is not "an everyday activity 'gone 

slightly, but not surprisingly, awry.'" See Donaldson, 211 

Wis. 2d at 233 (quoting Pipefitters, 976 F.2d at 1043-44); 

Langone, 300 Wis. 2d 742, ¶19. 

¶48 To explain further, in Langone, a gas-burning boiler 

caused an excess of carbon monoxide and caused the harm at 

issue. Langone, 300 Wis. 2d 742, ¶¶2-3. The court of appeals 

noted the common exposure of individuals to some carbon monoxide 

in homes, especially in the presence of stoves with gas burners. 

Id., ¶19. However, the exposure of water supplies to 

decomposing septage is not an everyday activity, as evidenced by 

the protective regulatory mechanisms surrounding the hauling, 

storing, and application of septage that are designed to prevent 

invasion of water supplies. 40 C.F.R. § 503 (2013); Wis. Admin. 

Code §§ NR 113-114 (Feb. 2014). 

¶49 Additionally, we have already rejected an attempt to 

equate application of a contaminant to the surrounding 

environment with exhalation of an omnipresent gas. Peace, 228 

Wis. 2d at 137-38 (differentiating release of lead paint from 

exhaling carbon dioxide). A reasonable insured would not 

understand exposure of water supplies to decomposing septage as 

"an everyday activity 'gone slightly, but not surprisingly, 

awry.'" See Donaldson, 211 Wis. 2d at 233 (quoting Pipefitters, 

976 F.2d at 1043-44); Langone, 300 Wis. 2d 742, ¶19.
No. 2012AP2521 

24

¶50 Furthermore, that septage fits the ordinary meaning of 

waste, which the policies expressly list as a pollutant, 

supports our conclusion that septage is a pollutant when it 

seeps into a water supply. Septage is primarily composed of 

human urine and feces. The ordinary meanings of feces and urine 

are, respectively, "'[w]aste matter eliminated from the bowels; 

excrement,'" and "'[t]he waste product secreted by the 

kidneys.'" Hirschhorn, 338 Wis. 2d 761, ¶34 (quoting The 

American Heritage Dictionary 1965). The ordinary meaning of 

waste includes, among other things, "'[t]he undigested residue 

of food eliminated from the body; excrement.'" Id. (quoting 

American Heritage Dictionary 2016). In Hirschhorn, these 

definitions of waste, urine, and feces supported our conclusion 

that bat guano——which consists of bat urine and feces——was a 

pollutant when it infiltrated a home. Id., ¶¶34-36. Likewise, 

in the present case, these definitions support our conclusion 

that decomposing septage is a pollutant when it seeps into a 

water supply.

¶51 The policies' use of "contaminant" in defining 

"pollutant" should have been clear notice to the Kuettels that 

their policies would not cover claims involving decomposing 

septage's seepage into water supplies.11 Stated otherwise, a 

 

11 One could wonder what conversation transpired between the 

insurance agent and the Kuettels yielding insurance policies 

that do not cover harm caused in the course of their chosen 

business. However, the actions of the insurers and their agents 

are not before us. 
No. 2012AP2521 

25

reasonable insured would conclude that the policies would not 

provide coverage on these facts. The key terms of the policies 

are unambiguous. See Peace, 228 Wis. 2d at 136. 

¶52 Typically, we would proceed to determine whether 

spraying or injecting septage on farmland constitutes the 

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

'pollutants'." See Donaldson, 211 Wis. 2d at 228. However, the 

parties do not appeal the circuit court's ruling that the 

Preislers' alleged loss resulted from the "discharge, dispersal, 

seepage, migration, release or escape of" septage within the 

meaning of the terms in the pollution exclusion clause of the 

insurance policy.12 Accordingly, we conclude that the insureds' 

claims fall within the unambiguous terms of the pollution 

exclusion clauses.13

C. Summary Judgment Granted to Hastings and Secura

¶53 A final issue is whether the Preislers and Kuettels 

have waived consideration of the court of appeals' grant of 

summary judgment to Hastings and Secura. Secura and Hastings 

 

12 See Preisler, No. 2012AP2521, unpublished slip op., ¶39 

(failing to challenge the circuit court's conclusion at the 

court of appeals). 

13 Typically, our third step is to analyze exceptions to the 

exclusion to determine whether any reinstates coverage. Am. 

Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶24, 268 

Wis. 2d 16, 673 N.W.2d 65. The parties did not argue an 

exception to the pollution exclusion applies; therefore, we need 

not reach this step.
No. 2012AP2521 

26

argued alternative grounds for summary judgment to the circuit 

court and the court of appeals.14

¶54 The circuit court did not address Hastings' and 

Secura's alternative grounds for summary judgment. The only 

responses to Hastings' and Secura's arguments to the court of 

appeals were the Preislers' assertions in two reply brief 

footnotes that Hastings and Secura were required to file crossappeals to raise alternative grounds for summary judgment. The 

court of appeals held Preislers' response insufficient and 

separately dismissed claims against Hastings and Secura on their 

alternative grounds. See Preisler v. Kuettel's Septic Serv., 

LLC, No. 2012AP2521, unpublished slip op., ¶¶40-42 (Ct. App. 

Jan. 14, 2014). 

¶55 By supreme court rule, "[i]f a petition [for review] 

is granted, the parties cannot raise or argue issues not set 

forth in the petition unless ordered otherwise by the supreme 

court." Wis. Stat. § 809.62(6). In their petitions for review, 

the Preislers, the Kuettels, and Phil's Pumping framed the issue 

as whether septage falls within the pollutant definition for 

purposes of the pollution exclusion clause. 

¶56 None of the petitioners petitioned the supreme court 

to review summary judgments granted to Hastings and Secura on 

alternative grounds. Hastings' dismissal was based on the 

 

14 Brief for Secura at 24-30, Preisler, No. 2012AP2421, 

unpublished slip op. (Ct. App. Jan. 14, 2014); Brief for 

Hastings at 33-36, Preisler, No. 2012AP2421, unpublished slip 

op. (Ct. App. Jan. 14, 2014).
No. 2012AP2521 

27

conclusion that the harm did not occur during the policy period. 

Secura's dismissal was based on the conclusion that the harm did 

not occur to the covered premises. In granting the petition, we 

did not instruct the parties to brief or argue any additional 

issues pursuant to Wis. Stat. § 809.62(6). Because the 

alternative grounds for summary judgment in favor of Hastings 

and Secura were not raised as an issue on petition to us, the 

Preislers, the Kuettels, and Phil's Pumping have waived our 

consideration of those grounds for summary judgment. See Doyle 

v. Engelke, 219 Wis. 2d 277, 294, 580 N.W.2d 245 (1998) 

(concluding that issues omitted from petitions for review may be 

waived if we do not direct that they be addressed). 

Accordingly, these dismissals by the court of appeals become the 

law of the case for further proceedings on Preislers' claims. 

State v. Moeck, 2005 WI 57, ¶18, 280 Wis. 2d 277, 695 N.W.2d 

783. 

¶57 While we retain the inherent power to consider issues 

beyond those raised in the petitions, we decline to do so in 

this matter. See Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 

29, 37, 435 N.W.2d 234 (1989). 

III. CONCLUSION

¶58 We conclude that a reasonable insured would understand 

that decomposing septage is a "contaminant" and therefore, a 

"pollutant" as defined in the policies when it has decomposed 

and seeps into a water supply. Accordingly, we affirm the 

decision of the court of appeals, which granted summary judgment 

upon its conclusion that the pollution exclusion clause 
No. 2012AP2521 

28

precluded coverage for harm resulting from the Preislers' water 

supply's contamination. 

¶59 We also conclude that the petitioners failed to 

petition this court for review of summary judgments of dismissal 

of their claims against Hastings and Secura. We decline to 

consider issues not raised in petitions for review. Bodoh, 226 

Wis. 2d at 737; Wis. Stat. § 809.62. Accordingly, those 

dismissals are not before us.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2012AP2521.awb

1

¶60 ANN WALSH BRADLEY, J. (concurring). Although I 

agree with the majority's conclusion that septage is a pollutant 

here, I part ways with the majority when it undertakes an 

analysis of "occurrence." Not only is the analysis unclear, it 

is unnecessary to the decision, and inconsistent with Wilson 

Mutual Ins. Co. v. Falk, 2014 WI 136, __ Wis. 2d __, __ N.W.2d 

__, a case decided on the same day, on the same issue.

¶61 It is unclear whether the majority is embarking on a 

cause approach or damage approach in determining what 

constitutes an occurrence. It quotes a leading authority on 

insurance law, Couch on Insurance, for the premise that "[m]ost 

courts have focused on the damage caused by the pollution and 

have concluded that there is an occurrence when the insured did 

not expect or intend the resultant damage." Majority op., ¶25 

(quoting 9 Steven Plitt et al., Couch on Insurance § 127.4 

(2008)). It then discusses Am. Family Mut. Ins. Co. v. Am. 

Girl, Inc., 2004 WI 2, ¶38, 268 Wis. 2d 16, 673 N.W.2d 65, which 

looked at both cause and damage in its discussion of occurrence. 

Id., ¶26. 

¶62 Yet, after discussing these authorities, the majority 

cites United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶¶12, 

15, 304 Wis. 2d 750, 738 N.W.2d 578, for the premise that the 

focus in an occurrence determination is on "the event or series 

of events that allegedly caused the alleged bodily injury or 

property damage." Id., ¶27. The majority then concludes that 

the occurrence in this case was the "[s]eepage of decomposing 

septage into the water supply" and "the resulting harm is water 
No. 2012AP2521.awb

2

with elevated nitrate levels." Id., ¶28. By including its 

statement that the resulting harm was something other than the 

occurrence, the majority suggests it is taking the cause 

approach. Without a definite statement, however, the 

juxtaposition of this conclusion with the conflicting 

authorities renders the majority's analysis unclear. 

¶63 Not only is the majority's analysis of what 

constitutes an occurrence unclear, but it is also unnecessary. 

What constitutes an occurrence was not addressed in the 

arguments presented by the parties. This issue was neither 

briefed nor argued, and none of the leading cases on pollution 

exclusions discuss it. See Hirschhorn v. Auto-Owners Ins. Co., 

2012 WI 20, 338 Wis. 2d 761, 809 N.W.2d 529; Peace v. 

Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 596 N.W.2d 429 

(1999); Donaldson v. Urban Land Interests, 211 Wis. 2d 224, 564 

N.W.2d 728 (1997); Langone v. Am. Family Mut. Ins. Co., 2007 WI 

App 121, 300 Wis. 2d 742; 731 N.W.2d 334; United States Fire 

Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 476 N.W.2d 280 (Ct. 

App. 1991). 

¶64 Lastly, if the majority is going to address what 

constitutes an occurrence, it should do so in a consistent 

manner. As noted above, the majority appears to take a cause 

approach to occurrence. This conflicts with the apparent 

approach embraced in Wilson Mutual, __ Wis. 2d __, ¶32, which we 

also release today. Wilson Mutual acknowledges that "Wisconsin 

is in the jurisdictional majority in defining an occurrence as 
No. 2012AP2521.awb

3

unexpected or unintended resultant damage." Which precedent 

should future attorneys follow?

¶65 Overall, the majority's occurrence discussion is 

problematic. By creating unclear, unnecessary, and inconsistent 

precedent, the court does not live up to its obligation to 

provide a clear and concise articulation of a legal standard. 

Accordingly, I respectfully concur.

 
No. 2012AP2521.ssa

1

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

reverse the decision of the court of appeals.

¶67 This case requires us to interpret the standard 

pollution exclusion clauses in a commercial general liability 

policy and a contractors' general liability policy.

¶68 The majority opinion frames the question presented in 

this case as "whether decomposing septage is a pollutant as it 

seeped into the Preislers' water supply."1 The majority opinion 

then holds that "a reasonable insured would conclude that the 

policies would not provide coverage on these facts."2

¶69 The majority opinion's approach to the pollution 

exclusion clauses in the instant case unnecessarily departs from 

precedent, undercuts the limiting principles our prior cases 

have applied to pollution exclusion clauses, and further 

confuses this murky area of the law.

¶70 The majority opinion needlessly decides what 

"occurrence" triggered coverage in the instant case and further 

complicates the law in this area. The question of what 

constitutes an occurrence need not be decided to resolve the 

question presented. The occurrence issue was neither raised nor 

briefed by the parties and was not ruled on by the circuit court 

or the court of appeals. The issue is complex.3 The court 

 

1 Majority op., ¶31.

2 Id., ¶51.

3 Steven Plitt et al., 9 Couch on Insurance § 126:27 (1997) 

("Whether there has been an accident or occurrence to trigger 

insurance coverage has been a much litigated issue.").
No. 2012AP2521.ssa

2

should not delve into it without the benefit of briefs or 

argument.

¶71 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 Wilson Mutual v. Falk, 2014 WI 136, ¶38, ___ 

Wis. 2d ___, ___ N.W.2d ___. I write on substantially similar 

issues in my dissent in Wilson Mutual. My dissents in Wilson 

Mutual and in the instant case should be read together.

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

the insureds, two companies in the business of hauling, storing, 

and disposing of septage, would not consider septage a pollutant 

under the pollution exclusion clause of general liability 

policies they purchased to cover liability for damage caused by 

their septic business operations.

¶73 If the majority is unwilling to honor the reasonable 

expectations of these insured septic companies, then I conclude 

the case should be remanded to the circuit court to allow the 

parties to present evidence regarding the insureds' expectations 

of coverage and the objective reasonableness of those 

expectations.4

¶74 Accordingly, I dissent.

I

 

4 See majority op., ¶51 n.11 ("One could wonder what 

conversation transpired between the insurance agent and the 

Kuettels yielding insurance policies that do not cover harm 

caused in the course of their chosen business. However, the 

actions of the insurers and their agents are not before us.").
No. 2012AP2521.ssa

3

¶75 The present case involves two insured companies and 

two insurance policies.5

¶76 Kuettel's Septic Service, LLC (Kuettel's) is a company 

that hauls, stores, and disposes of septage. Kuettel's 

sometimes disposes of septage by spreading it as fertilizer on 

farmland. Kuettel's has periodically hired Phil's Pumping and 

Fab, Inc. (Phil's Pumping) to dispose of septage. Phil's 

Pumping sometimes disposes of the septage by spreading it as 

fertilizer on farmland. 

¶77 These septic companies purchased general liability 

policies to insure their business operations, that is, they 

purchased insurance policies to cover damage they might cause in 

the ordinary course of their hauling, storing, and disposing of 

septage.

¶78 Kuettel's purchased a contractors' general liability 

policy from Regent Insurance Company. The Regent policy 

contains the following provisions:

B. EXCLUSIONS

1. Applicable to Contractors Liability Coverage

This insurance does not apply to:

. . . .

f. Pollution

(1) "Bodily injury" or "property damage" 

arising out of the actual, alleged or 

 

5 As the majority opinion points out, there were other 

insurers and other insurance contracts involved at earlier 

stages of the litigation.
No. 2012AP2521.ssa

4

threatened discharge, dispersal, 

seepage, migration, release or escape 

of "pollutants" . . . .

F. LIABILITY AND MEDICAL EXPENSES DEFINITIONS

. . . .

14. "Occurrence" means an accident, including 

continuous or repeated exposure to 

substantially the same general harmful 

conditions.

. . . .

16. "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.

¶79 Phil's Pumping purchased a commercial general 

liability policy from Rural Mutual Insurance Company. The Rural 

Mutual policy contains the following provisions:

2. Exclusions

This insurance does not apply to:

. . . .

f. Pollution

(1) "Bodily injury" or "property damage," 

arising out of the actual, alleged, or 

threatened discharge, dispersal, seepage, 

migration, release or escape of 

"pollutants" . . . .

SECTION V - DEFINITIONS

. . . .

13. "Occurrence" means an accident, including 

continuous or repeated exposure to 

substantially the same general harmful 

conditions.

. . . .
No. 2012AP2521.ssa

5

15. "Pollutants" mean 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.

¶80 For several years, Kuettel's and Phil's Pumping spread 

septage on Fred and Tina Preisler's farmland. In 2008, when the 

Regent and Rural Mutual insurance policies described above were 

in effect, the Preislers discovered that septage had seeped into 

their well and contaminated their water supply, causing cattle 

loss and other problems on their farm.

¶81 The Preislers sued Kuettel's and Phil's Pumping, 

alleging that the companies negligently stored and spread 

septage, resulting in nuisance and trespass. Kuettel's and 

Phil's Pumping contend that septage is not a pollutant under the 

pollution exclusion clauses at issue and thus that Regent and 

Rural Mutual should defend and indemnify under the policies.

II

¶82 Applying the court's general principles of insurance 

contract interpretation6 to the facts of the present case, I 

conclude that a reasonable person in the position of these 

insured septic companies would not consider septage a pollutant 

under the pollution exclusion clause of a general liability 

policy purchased to cover liability for damage caused by their 

septic business operations.

 

6 See Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶¶15-

22, 257 Wis. 2d 80, 654 N.W.2d 225. I set forth these 

principles at length in Wilson Mutual Insurance Co. v. Falk, 

2014 WI 136, ¶___, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, 

C.J., dissenting).
No. 2012AP2521.ssa

6

¶83 Excrement may be waste, an irritant, or a contaminant, 

but septage is a valuable product. It is a fertilizer used to 

enrich the soil. When it is used to enrich the soil, it is no 

longer waste, an irritant, or a contaminant.

¶84 Because we construe insurance contract provisions as 

would a reasonable insured, we have held that pollution 

exclusion clauses do not apply when "injuries result[] from 

everyday activities gone slightly, but not surprisingly, awry" 

or when a reasonable policyholder "would not 

characterize . . . [the] incident[] as pollution."7

¶85 To septic companies like Kuettel's and Phil's Pumping, 

storing and spreading septage are indisputably everyday 

activities. Septic companies store septage and often spread 

septage on farmland. Seepage is the whole point of spreading 

septage on farmland. If the seepage of septage into the 

Preislers' well resulted from the storage of septage or the 

spreading of septage on farmland, then it clearly resulted from 

an everyday activity "gone slightly, but not surprisingly, 

awry."8

¶86 A court keeps the underlying purpose of the insurance 

in mind when construing policy provisions.9 Kuettel's and Phil's 

 

7 Donaldson v. Urban Land Interests, Inc., 211 Wis. 2d 224, 

233, 564 N.W.2d 728 (1997).

8 Id.

9 Frost, 257 Wis. 2d 80, ¶22 ("[I]n 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, the situation of the parties, 

and the circumstances surrounding the making of the contract.").
No. 2012AP2521.ssa

7

Pumping purchased these general liability policies to insure 

their septic business operations. The insurance companies knew 

the nature of the business these companies are engaged in from 

their company names and probably from information submitted in 

their insurance policy applications. "Certainly an insured who 

purchases [commercial general liability] insurance expects to be 

covered for ordinary negligence in the course of its insured 

operations."10

¶87 The fact that "[h]auling, storing, and applying 

septage are activities regulated by both the DNR and the United 

States Environmental Protection Agency" further supports my 

conclusion that Kuettel's and Phil's Pumping were aware of the 

risks of working with septage and thus purchased general 

liability insurance policies to cover their liability for damage 

caused by their septic business operations when an everyday 

activity went slightly but not surprisingly awry.11

¶88 Thus, a reasonable person in the position of these 

insured septic companies would expect coverage for damage caused 

by septage under a general liability policy it purchased 

precisely in order to cover damage caused by its septic business 

operations. An insured's reasonable expectations of coverage 

must be honored. I would not bar coverage.

 

10 Keggi v. Northbrook Prop. & Cas. Ins. Co., 13 P.3d 785, 

¶29 (Ariz. 2000).

11 Majority op., ¶43.
No. 2012AP2521.ssa

8

¶89 The majority opinion is problematic for several 

reasons. 

¶90 First, as I stated previously, the majority opinion 

has an unnecessary discussion of occurrence, an issue that is 

not relevant and was not briefed or argued by the parties. 

¶91 Second, the majority's discussion of occurrence is 

inconsistent with the discussion of occurrence in Wilson Mutual. 

It remains unclear whether this court considers the cause of the 

damage or the damage itself to be the occurrence.

¶92 The majority opinion suggests that it is taking the 

cause approach.12 The Preislers' complaint alleges negligence in 

the storing and spreading of septage. Couldn't the causal 

event, and thus the accident for which the insureds seek 

coverage, be the negligent storing or spreading of septage, 

rather than seepage?

¶93 In her concurring opinion in the instant case, Justice 

Bradley persuasively explains that the majority opinion's 

discussion of occurrence is unnecessary, internally 

contradictory,13 and inconsistent with Wilson Mutual v. Falk, 

2014 WI 136, ¶32, ___ Wis. 2d ___, ___ N.W.2d ___. I join 

Justice Bradley's criticism of the majority opinion's discussion 

of "occurrence."

 

12 Majority op., ¶28.

13 "It is unclear whether the majority is embarking on a 

cause approach or damage approach in determining what 

constitutes an occurrence." Justice Bradley's concurrence, ¶61.
No. 2012AP2521.ssa

9

¶94 Third, the essence of the majority's analysis is that 

septage becomes a pollutant under the policy when it pollutes. 

Under this reasoning, every substance that pollutes is a 

pollutant. This reasoning simply begs the question.

¶95 By contending that a substance becomes a pollutant 

under the policy at the moment the substance contaminates, the 

majority opinion allows the pollution exclusion clause to extend 

far beyond the limited scope we have permitted in our prior 

cases, leading to absurd results.

¶96 The majority's approach ignores the fact that "there 

is virtually no substance or chemical in existence that would 

not irritate or damage some person or property."14 As this court 

has said again and again, "[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."15

¶97 Fourth, Wilson Mutual and the instant opinion are 

inconsistent in their test for whether a substance is a 

pollutant under a standard pollution exclusion clause, although 

both look to whether a reasonable person in the position of the 

insured would consider the substance a pollutant.

 

14 Donaldson, 211 Wis. 2d at 232 (quoting Pipefitters

Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 

1043 (7th Cir. 1992)).

15 Donaldson, 211 Wis. 2d at 233.
No. 2012AP2521.ssa

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¶98 The instant case simply asks "whether a reasonable 

insured would consider decomposing septage to be a pollutant 

when it seeps into a water supply."16 

¶99 Wilson Mutual sets forth the following two-part test 

for whether a reasonable insured would consider a substance a 

pollutant:

[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 causing the harm involved in the occurrence 

to be a pollutant.17

¶100 Does the Wilson Mutual two-part test survive the 

opinion in the present case?

¶101 Fifth, as I have noted, the parties in the instant 

case are here on summary judgment. If the majority is unwilling 

to adhere to our longstanding practice of honoring the 

expectations of the reasonable insured, then I would remand the 

case to the circuit court so the parties can produce evidence 

regarding the insureds' expectations of coverage and the 

objective reasonableness of those expectations. Summary 

judgment should not be granted before the parties have that 

opportunity.

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

position of the insureds, two companies in the business of 

 

16 Majority op., ¶40.

17 Wilson Mutual v. Falk, 2014 WI 136, ¶38, ___ Wis. 2d ___, 

___ N.W.2d ___.
No. 2012AP2521.ssa

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hauling, storing, and disposing of septage, would not consider 

septage a pollutant under the pollution exclusion clause of 

general liability policies they purchased to cover liability for 

damage caused by their septic business operations.

¶103 For the reasons set forth, I dissent.
No. 2012AP2521.ssa

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