Opinion is subject to motion for reargument or formal
revision before publication. See V.R.A.P. 40
Appeal from Superior Court, Rutland Unit, Civil Division.
Cortland Corsones, J.
C. Anderson of Anderson & Eaton, P.C., Rutland, for
C. Boxer of Ellis Boxer & Blake PLLC, Springfield, for
Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] This case calls upon us to apply a
" pollution exclusion" in an insurance policy for
the second time in a year. Plaintiffs Neil and Patricia
Whitney assert that damage to their home and personal
property resulting from the spraying within their home of a
pesticide known as chlorpyrifos is covered by their
homeowners policy. Defendant Vermont Mutual Insurance Company
(Vermont Mutual) argues that the pollution exclusion in the
policy bars the Whitneys' claim. The Rutland Superior
Court, Civil Division, granted the Whitneys' summary
judgment motion on the question of coverage, concluding that
the exclusion in question was ambiguous, and construing the
ambiguous provision in favor of coverage. We conclude that
the property damage to the Whitneys' home is an excluded
risk in the applicable policy and accordingly reverse.
[¶2] The facts in this case are undisputed.
The Whitneys live in Rutland, and their home is insured by a
policy issued by Vermont Mutual. The Whitneys are foster
parents, and at some point in April 2013, they noticed bed
bugs in their home after a new foster child was placed with
them by the Vermont Department for Children and Families
(DCF). Shortly thereafter, at the behest of DCF, Triple A
Pest Control (Triple A) sprayed the Whitneys' home with
the pesticide chlorpyrifos in order to eradicate the bed
bugs. Triple A sprayed the house, corner to corner, wall to
wall, and sprayed the Whitneys' personal effects within
the home, including the inside of the oven and the ductwork
of the forced hot air heating system. When the Whitneys
returned to their home after the spraying operation, the
walls and surfaces of the home were visibly dripping with the
[¶3] Chlorpyrifos is a toxin that can cause
" nausea, dizziness, confusion, and, in very high
exposures, respiratory paralysis and death." The
substance is banned for residential use by the Federal
Environmental Protection Agency, and the spraying of the
Whitneys' home with chlorpyrifos violated federal and
[¶4] Concerned by the amount of chemicals
sprayed within their home, the Whitneys contacted DCF, who
referred them to the Vermont Department of Agriculture (the
Department). When the Whitneys informed the Department's
representative of the name of the applicator, the
representative advised them to stay out of the house until it
could be tested. Following testing about a week after the
spraying, a representative of the Department advised the
Whitneys to stay out of their home until further notice.
[¶5] The testing revealed high levels of
chlorpyrifos. According to the EPA, a cleanup is required if
testing reveals levels in excess of 0.006 micrograms per
square centimeter. Swabs of the Whitneys' home revealed
concentration levels of chlorpyrifos as high as 3.99
micrograms per square centimeter. As a result of the
extremely high concentration levels, the Whitneys have been
unable to inhabit their home since April 29, 2013.
[¶6] Shortly after the Department's
testing, the Whitneys filed a claim with Vermont Mutual.
Coverage A of their homeowners policy insures against a
" physical loss to property." Among the exclusions
to the property damage coverage in Coverage A is a "
pollution exclusion." In ...