April 15, 2014The Main Message
Hirschhorn v. Auto-Owners Insurance Policy is a case about bat poop. The Hirschhorns say that they had to abandon a summer home because of the overwhelming odor created when large numbers of bats used the space between the walls and siding as a toilet. They filed a claim under their homeowner’s policy, which included a pollution exclusion disclaiming coverage for any discharge, release, etc. of pollutants. The battle between the parties – which reached the Wisconsin Supreme Court – was over whether bat poop is pollution. Auto-Owners argued that it was, and the Hirschhorns that it wasn’t.
Maybe insurance litigation is normally dry stuff, and maybe it eventually wears out one’s sense of the picturesque. But these facts stink to high heaven, and the litigants should not have missed the opportunity to capitalize on that. The Court of Appeals set them a good example, holding, among other things, that “when a person reading the definition arrives at the term ‘waste,’ poop does not pop into one’s mind.” But here’s a typical paragraph from Auto-Owners’ brief:
Given the broad warning of the pollution exclusion in Auto-Owners’ homeowner’s policy, a reasonable insured would not read the exclusion as limited to industrial refuse. This is so because a “penetrating and offensive odor” emanating from bat guano satisfies the definition of “pollutant” in the policy on two separate bases.
Yawn. We can do better than that. Five minutes of research reveals (if you did not already know) that:
- Guano is animal waste.
- Guano contains ammonia and phosphates, among other chemicals.
- Guano was long used in industry, both to manufacture fertilizer and gunpowder. Guano islands were prized possessions and nations have fought battles over their ownership.
- Guano emits ammonia gas and other hazardous fumes.
To be sure, a humorous tone is probably inappropriate for an insurance company who has denied coverage to a family that was forced out of their home. But the argument certainly could have been made more compelling. One example:
The exclusion covers both “liquid…irritant or contaminant…waste” and “irritant or contaminant…gasses.” Bat guano is waste—animal waste—and is unquestionably a liquid contaminant that also released irritating and contaminating gasses. The Hirschhorns say that left their house because the fumes were irritating and because they had contaminated their possessions. They try to distinguish between industrial pollutants and “natural” ones, but the distinction is possible only because the modern chemical industry has come up with substitutes for the guano supplies that used to fuel industrial manufacturing of chemical fertilizers and explosives.
Also, of course, just mentioning in the fact section some of the colorful history of human use of guano would have gone a long way towards making the briefs memorable, and thus inducing judges and clerks to read them with attention.