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Whitney v. Vermont Mutual Insurance Co.

Supreme Court of Vermont

December 11, 2015

Neil and Patricia Whitney
v.
Vermont Mutual Insurance Company

         Editorial Note:

         This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

          On Appeal from Superior Court, Rutland Unit, Civil Division. Cortland Corsones, J.

          Karl C. Anderson of Anderson & Eaton, P.C., Rutland, for Plaintiffs-Appellees.

          Andrew C. Boxer of Ellis Boxer & Blake PLLC, Springfield, for Defendant-Appellant.

         Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          OPINION

Page 273

          Robinson, J.

          [¶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 pesticide.

          [¶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 state law.

          [¶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 ...


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