Timothy Barber
Timothy Barber

Home Insurance Doesn’t Cover Bat Guano

March 12, 2012

In Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20 (March 6, 2012), the Wisconsin Supreme Court held that the “absolute pollution exclusion” in a homeowner’s policy of insurance was not limited to industrial waste and applied to bat guano that contaminated a lawyer’s vacation home. The Court agreed with Axley Attorneys Timothy Barber and Art Kurtz that the language in the pollution exclusion was unambiguous and excluded the loss.

Joel Hirschhorn demolished his cottage in northern Wisconsin after noticing a “penetrating and offensive odor” that he alleged made the home uninhabitable. The odor was determined to be caused by a large accumulation of bat guano between the walls. After demolishing his home, he sought money from his insurance company to build a new vacation home. The insurance company denied the claim on the basis that damage caused by bat guano and bat guano odor was not covered under the policy’s pollution exclusion, which applied to “loss resulting directly or indirectly from…discharge, release, escape, seepage, migration or dispersal of pollutants….” Pollutants were defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gases and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The insurance company successfully got the case dismissed, but Hirschhorn appealed and won before the Wisconsin Court of Appeals. Citing the Sesame Street Song, “One of These Things is Not Like The Other”, the court of appeals held that the term “waste” was ambiguous and that “poop does not pop into one’s mind” when reading it. The court of appeals stated that a homeowner would understand the term to apply only to industrial pollutants.

The Wisconsin Supreme Court reversed, holding that under the plain language of the policy, a homeowner would understand the term “waste” to include excrement, including bat guano, and that bat guano was an “irritant” and “contaminant.” The Court stated that this was apparent from the fact that the Plaintiff alleged in his lawsuit that the “penetrating and offensive odor” from the guano ruined the furniture in his home and made it unlivable. The Court agreed with the insurance company that bat guano—which it noted is comprised of bat feces and urine—and bat guano odor were solid, liquid, or gaseous irritants or contaminants that were discharged, released, or dispersed throughout the house. Therefore, bat guano fell within the unambiguous language of the definition of “pollutant” in the policy’s pollution exclusion. Additionally, the Court re-affirmed an earlier ruling that the term “pollutant” is not limited to industrial-type pollution.