Hirschhorn v. Auto-Owners Insurance Company: The Latest Chapter in Wisconsin’s Pollution Exclusion Jurisprudence
A cornerstone of judicial interpretation of insurance policies in Wisconsin is that the terms of a policy are interpreted to mean what a reasonable person in the shoes of the insured would understand them to mean. Statements to this effect appear routinely in judicial opinions construing insurance contracts.
Type the word “pollutant” into Google’s image search engine, and among the first images you’re likely to see are smoke stacks, chemical plants, car exhaust, and neon green liquid oozing out of a corrugated underground pipe. These or similar images may be top of mind when most people think of pollutants, but in the eyes of Wisconsin’s appellate courts, the mind of the reasonable insured is not so limited.
Recently, in Hirschhorn v. Auto-Owners Insurance Company,[i] the Wisconsin Supreme Court ruled that reasonable homeowners would understand that a standard pollution exclusion applied to the accumulation of bat guano in the walls of their vacation home and to the attendant odor that spread throughout the home, rendering it uninhabitable. The court’s holding was the latest in a line of cases stretching back more than twenty years which have gradually expanded the scope of substances and situations to which these exclusions apply. A review of these cases, including Hirschhorn, is instructive to highlight those considerations which may be of increasing importance to the interpretation and application of these exclusions in Wisconsin in the future.
The Evolution of the Standard Pollution Exclusion
Pollution exclusion clauses began to appear in commercial general liability policies in the 1970s in response to insurance industry concerns about increased liability for environmental contamination. These concerns arose in part because of new state and federal legislative and regulatory action aimed at holding those responsible for environmental disasters and widespread contamination by toxic or hazardous substances also responsible for remedial costs.[ii] The first version of the standard clause provided a “qualified” exclusion which only applied if a discharge of pollutants was not “sudden and accidental,” and litigation inevitably ensued in Wisconsin and other jurisdictions over the meaning of this limitation. [iii] The qualified exclusion eventually was replaced by what the insurance industry advertised as “absolute” or “total” exclusions, which omitted the “sudden and accidental” language to further clarify the intent to limit liability.
While the specific wording of pollution exclusion clauses varies from policy to policy, most consist of two components: (1) a description of the substances that constitute a “pollutant”; and (2) an enumeration of the means by which a “pollutant” may be disseminated. For example, in Hirschhorn, the exclusion defined a “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids, gases and waste,” and further defined waste as “includ[ing] materials to be recycled, reconditioned or reclaimed.”[iv] Coverage was excluded for losses caused by the “discharge, release, escape, seepage, migration or dispersal” of such substances.[v] Confronted with definitional language that is capable of being read very broadly, some courts have read these clauses, in light of their drafting history and underlying purpose, to apply only to injuries caused by traditional environmental pollution.[vi] As discussed below, Wisconsin courts have turned away from this tradition-focused analytical approach and have instead grounded their analysis on the plain meaning of the terms in these exclusions, allowing the expectations and understanding of a reasonable insured to stand as the primary limiting principle in their construction.
Early Wisconsin Court of Appeals Decisions
In 1991, the Wisconsin Court of Appeals held that a pollution exclusion excluded coverage for a loss that occurred when ice cream cones stored in a warehouse near fabric softener were affected by a fragrance additive in the softener. The additive caused the cones to smell and taste like soap. Unlike the standard exclusions, the pollution exclusion at issue in United States Fire Ins. Co. v. Ace Baking Co.[vii] did not define the term “pollutant.” The circuit court found the term ambiguous and ruled, consistent with the exclusion’s original purpose, that a reasonable insured would understand the term to apply only to toxic materials that would adversely affect the environment or a person’s health. The court of appeals disagreed and employed a different analytical framework, one that focused on the effect of the substance upon the insured’s property. Using that approach, the court found no ambiguity—the “essence” of the exclusion combined with the broad dictionary definition of “pollutant” meant that a reasonable insured would understand the additive to be a “pollutant” in relation to the ice cream cones, even though the additive was harmless when used and contained as intended.[viii]
Two years later, in Beahm v. Pautch,[ix] the court of appeals used a different approach to determine whether a pollution exclusion encompassed a claimed loss. The issue in Beahm was whether the exclusion precluded coverage for damages caused when smoke from a grass fire set by an insured obscured the vision of motorists driving on a nearby highway, leading to a multi-vehicle accident. Although “smoke” was specifically listed in the exclusion, the court of appeals rejected the insurer’s argument that a reasonable insured could only understand that the drifting of smoke across the highway constituted a discharge or release of a specifically enumerated “pollutant.” Instead, the court ruled that another, narrower reading of the clause was also reasonable, one which excluded coverage only where harm was caused “by the toxic nature” of the substance at issue.[x] Having declined to limit itself to what might be considered a “literal” reading of the clause, the court proceeded to examine the “nature and purpose” of the clause to resolve the ambiguity it had found. A review of that history, wrote the court, revealed an underlying concern “about liability…from environmental accidents such as oil spills and under federal environmental legislation.”[xi] In light of this history, the court ruled that a reasonable insured would understand the exclusion to be limited only to damage caused by a substance’s toxic properties.
Donaldson: The Wisconsin Supreme Court Endorses a Common Sense Limit
In 1997, the Wisconsin Supreme Court considered the scope of a standard pollution exclusion clause in Donaldson v. Urban Land Interests, Inc.[xii] The substance at issue in Donaldson was exhaled carbon dioxide, which had accumulated to excessive and unhealthy levels in an office building due to an inadequate ventilation system. A divided panel of the court of appeals sided with the building manager’s insurer, finding that the carbon dioxide constituted a “gaseous irritant” and thus fit within the exclusion’s definition of a pollutant. In contrast to Beahm, the panel majority also rejected the insured’s argument that the exclusion applied only to environmental damage, refusing to consider the exclusion’s historical roots and instead focusing exclusively on the language of the exclusion.[xiii]
The supreme court, despite acknowledging the clause’s broad application, nonetheless agreed with the dissenting appeals court judge that the term “pollutant” was ambiguous as applied to exhaled carbon dioxide.[xiv] Rather than invoking the underlying purpose and drafting history of the standard pollution clause to define its outer limits, however, the supreme court instead invoked a more amorphous, pragmatic principle of reasonableness, citing a decision by the Seventh Circuit which characterized injuries resulting from “everyday activities gone slightly, but not surprisingly awry” as beyond the scope of the exclusion.[xv]
A year later, the court of appeals melded the approaches set forth in Beahm and Donaldson to find a pollution exclusion applicable only to damage caused by the toxic nature and properties of raw sewage which had backed up into a residential basement. The clause at issue in Guenther v. City of Onalaska[xvi] excluded coverage for claims arising out of “contamination or alleged contamination of any environment by pollutants.” The court of appeals concluded that raw sewage could be considered a “pollutant” but, citing Beahm and the policy’s definition of “contamination,” held that coverage was excluded only for damage attributable to the toxic nature of the discharged substance.[xvii] To define the expectations of a reasonable homeowner, the court of appeals relied, as it had in Beahm, on the standard exclusion’s drafting history. That history reflected an intent to exclude coverage for “catastrophic damages” resulting from environmental accidents.[xviii] The court of appeals also followed Donaldson’s lead in looking to the nature of the event—a sewer backup—which it deemed a “routine occurrence” that had gone slightly awry.[xix] In discussing this point, the court analogized the backup to another occurrence—the flaking and chipping of lead paint off of the walls of a home—that it had recently deemed to be routine in Peace v. Northwestern Nat’l Ins. Co.,[xx] and thus not excludable from coverage under a standard pollution exclusion.
Peace: The Primacy of Plain Meaning
But in 1998, the Wisconsin Supreme Court reversed the court of appeals’ decision in Peace and clarified the analytical approach to the interpretation of pollution exclusion clauses.[xxi] At the outset of its analysis, the court confirmed that its task was to ascertain and apply the plain and ordinary meaning of certain undefined terms used in the exclusion. To do so, the court first looked to the broad dictionary definitions of the terms “contaminant,” “irritant,” and “chemical.” The court next considered the nature of the substance at issue—lead—noting that ingestion of lead posed significant risks to physical health for both children and adults. Seemingly comfortable with assuming that a reasonable insured would interpret the scope of the clause consistent with the broad dictionary definitions of its component parts, the court had little difficulty concluding that the text of the clause was not ambiguous when read in relation to the facts of the case—lead from paint chips, flakes, or dust was either an “irritant” or a “contaminant” for the purpose of the exclusion.[xxii]
The court concluded next that the process of paint chipping, flaking, or turning into dust satisfied the exclusion’s requirement that there be a dispersal, release, discharge, or escape. Again, the court determined that this requirement was met by relying on the broad dictionary definitions of these terms to determine their plain meaning.[xxiii]
The court then rejected the notion that the clause was susceptible to more than one reasonable interpretation, and thus ambiguous. Relying on authority from other jurisdictions, the court pointed again to the broad scope of the term “pollutant” in the policy and also the widely recognized dangerous and toxic properties of lead.[xxiv] The court declined to adopt a reading of the clause that would limit its scope to industrial or environmental pollution because the exclusion’s plain meaning supported a broader scope.[xxv] Even had the court considered the exclusion’s drafting history, the court wrote, it would not have altered the analysis, as the evolution of the standard exclusion showed a consistent intent to expand the scope of the clause beyond traditional forms of environmental pollution.[xxvi]
Finally, while the supreme court acknowledged that the Seventh Circuit had identified “paint peeling off a wall” as an example of a situation outside the scope of the exclusion under its “everyday activities gone slightly, but not surprisingly awry” formulation, the court nevertheless concluded that the state of awareness regarding the dangers of lead sufficiently supported the conclusion that a reasonable insured would understand that the exclusion applied to the ingestion of lead from paint that had chipped or flaked off of an apartment wall.[xxvii]
Decisions issued by the court of appeals in the years following Peace generally tracked the teachings of Donaldson and Peace, while also foreshadowing aspects of the supreme court’s decision in Hirschhorn. The court of appeals found a pollution exclusion unambiguous and applicable to damage resulting from a strain of bacteria found in a food preparation company’s products in Landshire Fast Foods of Milwaukee, Inc. v. Employers Mut. Cas. Co.,[xxviii] and rejected the insured’s argument that the terms “contaminant” and “pollutant” applied only to “inorganic matter.” The court characterized this argument as an invocation of the ejusdem generis interpretive canon, under which a general term appearing at the end of an enumerated list of specific examples is interpreted to include only those things of the same type as those listed.[xxix]
State Farm Fire & Cas. Co. v. Acuity[xxx] raised the question of whether a pollution clause excluded coverage for the loss of use of a home caused by the odor of fuel oil located in underground storage tanks that escaped while the tanks were being removed. The insured argued that the odor from the fuel oil was not a “pollutant” under the policy and that the exclusion did not apply because the homeowners lost the use of their property because of a non-toxic property of the oil—its smell. The court of appeals disagreed; the parties had accepted that the oil itself was a pollutant and the court ruled that the odor was a “manifestation of the fuel oil’s escape” and thus had arisen out of the spill as required by the exclusion.[xxxi] Drawing on the broad language of the exclusion, the court reached two conclusions regarding the expectations of a reasonable insured: (1) a reasonable insured would not separate the substance into its toxic and non-toxic (yet still contaminating) properties; and (2) the escape of oil from an underground tank during its removal was the kind of activity a reasonable insured would associate with contamination or pollution.[xxxii]
Finally, in Langone v. American Family Mut. Ins. Co.,[xxxiii] the court of appeals held that a standard exclusion was ambiguous as applied to the accumulation of carbon monoxide in a rental apartment. Citing Peace, the court first considered the plain language of the exclusion, including the broad dictionary definitions of the terms “irritant” and “contaminant.” This time, however, the court concluded that those definitions did not unambiguously apply to a build-up of carbon monoxide.[xxxiv] The court next considered the nature of the substance, noting its similarity to carbon dioxide as a “potentially hazardous” substance that most persons are exposed to daily in small quantities.[xxxv] Finally, the court looked to the expectations of a reasonable insured and characterized the case as involving a “sick building” in which, as in Donaldson, persons had been injured when “an omnipresent substance became concentrated due to a ventilation defect.”[xxxvi] Because such a concentration could fairly be characterized as an ordinary condition gone slightly awry, it was beyond the scope of the exclusion.
As Hirschhorn made its way up to the Wisconsin Supreme Court, the analysis of pollution exclusion clauses in Wisconsin had evolved away from interpreting the text in light of the clause’s origins and underlying purpose to placing increased emphasis on the breadth of the terms comprising the exclusion, and limiting its reach only through a pragmatic reasonable expectations analysis that was informed by the nature of the substance and the circumstances of its dissemination. As discussed below, Hirschhorn continues this trend.
Hirschhorn and Beyond
The plaintiffs in Hirschhorn owned a vacation home in northern Wisconsin which they listed for sale in 2007. An inspection of the home in connection with the planned sale uncovered the presence of bats and the accumulation of bat guano between the walls and exterior siding of the home. The Hirschhorns also discovered a “penetrating and offensive odor” throughout the home that was traced to the accumulated bat guano and that prevented them from staying in the home. The Hirschhorn’s insurer denied coverage for loss of the home, citing the pollution exclusion among other policy provisions.[xxxvii]
After having the home demolished, the Hirschhorns filed suit against Auto-Owners seeking to recover for the loss of the home. The Hirschhorns alleged that the home and its furnishings were rendered unusable and unsaleable due to the penetrating bat guano odor. Initially, the circuit court sided with the Hirschhorns, ruling that the loss of the home fell within the terms of the policy and was not excluded by the pollution exclusion. Specifically, the circuit court characterized the Hirschhorn’s loss as unlike “traditional pollution cases.”[xxxviii] Upon reconsideration, however, the circuit court reversed course, concluding that bat guano fell within the term “waste” and was therefore a “pollutant” and that the odor emanating therefrom had dispersed throughout the home, causing the loss.[xxxix]
The Hirschhorns appealed, and the court of appeals reversed the circuit court’s decision.[xl] Looking to the supreme court’s decisions in Donaldson and Peace for guidance, the court of appeals concluded that bat guano was more analogous to exhaled carbon dioxide than lead in paint chips, both “biologically” and in terms of how a reasonable insured would view it in relation to the exclusion.
In both the court of appeals and the supreme court, the parties’ disagreement over the scope of the clause revolved around how a reasonable insured would interpret the undefined term “waste.” Auto-Owners looked to the dictionary, arguing that bat guano fell within the broad definition of “waste” and was a “contaminant” and an “irritant” under the exclusion, as was the odor which had spread throughout the home. In contrast, the Hirschhorns argued, and the court of appeals agreed, that a reasonable insured would read the term “waste” in the context of the words that preceded it—“smoke, vapor, soot, fumes, acids, alkalis, chemicals, liquids [and] gases.” Thus, although “waste” could be construed broadly enough to include animal waste, a reasonable insured would not invariably do so. Instead, in light of the aforementioned preceding terms, the court of appeals ruled that a reasonable insured might interpret “waste” as referring only to “material…left over from a manufacturing process or industrial operation.”[xli] The court of appeals also observed that the exclusion’s use of the terms “discharge, release, escape, seepage, migration or dispersal” did not call to mind biological processes such as the movement of animal excrement.[xlii] Though not explicitly characterized as such, the court of appeals’ limiting construction of the exclusion clause harkened back to earlier decisions in which similar clauses had been construed to apply only to traditional forms of environmental or industrial pollution.
Auto-Owners appealed the court of appeals’ determination on coverage, and the Wisconsin Defense Counsel filed an amicus brief aligned with the insurer.[xliii] The supreme court, in an opinion by Justice Ziegler, reversed the court of appeals’ decision. The majority concluded that (1) bat guano in the Hirschhorns’ home fell unambiguously within the exclusion’s definition of “pollutant”; and (2) the damage to the home resulted from a “discharge, release, escape, seepage, migration or dispersal” of the guano.[xliv]
At the outset of its analysis, the court flagged its disagreement with the analytical approach used by the court of appeals, stating that that the plain and ordinary meaning of policy terms is not to be circumscribed through the use of canons of construction.[xlv] The court next considered whether bat guano constituted a “pollutant.” Looking to its decisions in Donaldson and Peace for guidance, the court concluded that bat guano fell unambiguously within the dictionary definitions of “contaminant” and “irritant” which had been employed in Peace. The “unique and largely undesirable” nature of the substance at issue (and the physical ailments connected to exposure to it) were also important in reaching this conclusion.[xlvi]
The supreme court then turned to the term “waste,” whose presence in the exclusion further supported the court’s conclusion. Disagreeing with the Hirschhorns that “waste” could be subject to more than one reasonable interpretation, the court stated syllogistically that because bat guano consisted of urine and feces, and because those substances were “commonly understood” to be waste (as exemplified by the appearance of “waste” in the dictionary definitions of urine and feces), a reasonable insured would invariably understand guano to constitute “waste” for the purpose of the exclusion.[xlvii]
Finally, the Hirschhorn court disavowed the court of appeals’ narrow construction of “waste” as pertaining only to “industrial-type pollutants.” The supreme court’s discussion reflects its belief that the court of appeals had put the cart before the horse in using the ejusdem generis canon of construction to find ambiguity in the exclusion, rather than to resolve it.[xlviii]
Moving to the second prong of its analysis, the court once again focused on dictionary definitions of the words “discharge,” “release,” “escape,” “seepage,” “migration,” and “dispersal” to define how a reasonable insured would interpret these terms. Tying the various definitions together, the court reasoned that the Hirschhorns’ allegation that an odor emanated from the guano implied that the guano had “somehow separated from its once contained location between the home’s siding and walls and entered the air, only to be absorbed by furnishings inside the home.”[xlix] This dynamic was sufficient for the court to determine that the damage to the home stemmed from a “discharge, release, escape, seepage, migration or dispersal” of the guano.
From the fragrance additive in Ace Baking, to carbon dioxide in Donaldson, lead paint chips in Peace, and now bat guano in Hirschhorn, Wisconsin’s pollution exclusion jurisprudence has touched on a variety of substances and situations. It is appropriate to consider the evolution of that jurisprudence to highlight those considerations which appear to be of increasing importance to the interpretation of these exclusions. First, reliance on dictionary definitions has displaced reference to the exclusion’s original animating purpose as the predominant means of determining what a reasonable insured would understand a pollution exclusion to mean. Nonetheless, the courts have acknowledged that an overarching notion of reasonableness must be layered on top of this search for “plain and ordinary” meaning to avoid reading the exclusion so broadly as to remove any meaningful limitations. In addition, a consistently important factor throughout the cases is the nature of the substance and the circumstances and effects of its dissemination. Especially in cases involving exposure to humans, substances that are toxic or otherwise commonly understood to pose risks of physical harm are more likely to fall within the definition of a “pollutant.” In cases where dissemination leads to property damage, an important factor is the effect the substance has on the property, specifically whether it renders the property unfit for its intended use. Defense practitioners should keep these considerations in mind when analyzing the applicability of pollution exclusion clauses.[i] 2012 WI 20, 338 Wis. 2d 761, 809 N.W.2d 529.
[ii] The history and evolution of the standard pollution exclusion clause has been the subject of considerable judicial and academic discussion. See, e.g., American States Ins. Co. v. Koloms, 687 N.E.2d 72 (Ill. 1997); Belt Painting Corp. v. TIG Ins. Co., 795 N.E.2d 15 (N.Y. 2003); Morton Int’l, Inc. v. General Accident Ins. Co., 629 A.2d 831, 848-869 (N.J. 1993).
[iii] See, e.g., Just v. Land Reclamation, Ltd., 155 Wis. 2d 507, 456 N.W.2d 570 (1990) (holding that the term “sudden” was ambiguous and construing it in favor of the insured to not apply to “unexpected and unintended” damage); Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 678-79, 476 N.W.2d 593 (Ct. App. 1991).
[iv] Hirschhorn, 338 Wis. 2d 761, ¶ 5.
[vi] See, e.g., Koloms, 687 N.E.2d at 82.
[vii] 164 Wis. 2d 499, 476 N.W.2d 280 (Ct. App. 1991).
[viii] Id. at 504-05. The court of appeals employed this “in relation to” approach several years later in Richland Valley Prods., Inc. v. St. Paul Fire & Ins. Co., 201 Wis. 2d 161, 548 N.W.2d 127 (Ct. App. 1996). In that case, the court looked to dictionary definitions of the term “contamination” and determined that the term was unambiguous and encompassed the movement of a brine solution into a coil submerged in the solution, where it mixed with ammonia circulating through the coil and a connected refrigeration system and caused damage.
[ix] 180 Wis. 2d 574, 510 N.W.2d 702 (Ct. App. 1993).
[x] Id. at 581.
[xi] Id. at 584.
[xii] 211 Wis. 2d 224, 564 N.W.2d 728 (1997).
[xiii] Donaldson v. Urban Land Interests, 205 Wis. 2d 408, 418, 556 N.W.2d 100 (Ct. App. 1996).
[xiv] Donaldson, 211 Wis. 2d at 231-32.
[xv] Id. at 233 (discussing Pipefitters Welfare Educ. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043-44 (7th Cir. 1992)). The supreme court in Donaldson also relied on the ubiquitous and usually benign character of carbon dioxide as a consideration that would shape a reasonable insured’s understanding of whether it would be fall within the policy’s definition of “pollutant.” 211 Wis. 2d at 234.
[xvi] 223 Wis. 2d 206, 588 N.W.2d 375 (Ct. App. 1998).
[xvii] Id. at 215.
[xix] Id. at 216.
[xx] 215 Wis. 2d 165, 573 N.W.2d 197 (Ct. App. 1997).
[xxi] Peace v. Northwestern Nat’l Ins. Co., 228 Wis. 2d 106, 119, 596 N.W.2d 429 (1999).
[xxii] Id. at 122-125, 136.
[xxiii] Id. at 126-130.
[xxiv] Id. at 132-138. The court contrasted the well-known dangers of lead to the carbon dioxide at issue in Peace, which had been described as “universally present and generally harmless in all but the most unusual circumstances.” Id. at 137.
[xxv] Id. at 140.
[xxvi] Id. at 142.
[xxvii] Id. at 145-147.
[xxviii] 2004 WI App 29, 269 Wis. 2d 775, 676 N.W.2d 528.
[xxix] Id., ¶ 13; Hirschhorn, 338 Wis. 2d 761, ¶ 35 n.7.
[xxx] 2005 WI App 77, 280 Wis. 2d 624, 695 N.W.2d 883.
[xxxi] Id., ¶¶ 12-14.
[xxxii] Id., ¶ 17.
[xxxiii] 2007 WI App 121, 300 Wis. 2d 742, 731 N.W.2d 334, review denied, 2007 WI 134, 305 Wis. 2d 128, 742 N.W.2d 526.
[xxxiv] Id., ¶ 17.
[xxxv] Id., ¶¶ 18-20.
[xxxvi] Id., ¶ 26.
[xxxvii] Hirschhorn, 338 Wis. 2d 761, ¶¶ 5-11. Auto-Owners first denied the Hirschhorn’s claim on the grounds that the accumulation of bat guano was not “sudden and accidental” and that the policy’s inadequate maintenance exclusion applied. Auto-Owners later revised its denial to include the ground that bat guano constituted a “pollutant” for the purpose of the policy’s pollution exclusion clause.
[xxxviii] Id., ¶ 15.
[xxxix] Id., ¶¶ 12-17.
[xl] Hirschhorn v. Auto-Owners Ins. Co., 2010 WI App 154, 330 Wis. 2d 232, 792 N.W.2d 639.
[xli] Id., ¶¶ 11-13.
[xlii] Id., ¶ 15.
[xliii] In its brief, the WDC argued that the court of appeals’ decision had improperly used the ejusdem generis canon to construe the term “waste” in a manner inconsistent with its plain meaning; that the court’s decision was inconsistent with the reasonable expectations of Wisconsin homeowners; and that the decision would serve as a disincentive to homeowners to inspect and monitor the condition of homes that may not be occupied continually throughout the year. In a rare twist, the WDC’s submission of a brief prompted the Hirschhorns to file a motion for leave to submit a brief responding specifically to the WDC’s arguments, which the supreme court granted.
[xliv] Hirschhorn, 338 Wis. 2d 761, ¶ 4.
[xlv] Id., ¶ 24.
[xlvi] Id., ¶¶ 33, 37.
[xlvii] Id., ¶ 34.
[xlviii] Id., ¶ 36. The role of the ejusdem generis canon of construction in the interpretation of policy language formed the crux of the disagreement between Justice Ziegler’s majority opinion and the dissenting opinion authored by Chief Justice Abrahamson. Accusing the majority of “explicitly ignor[ing] context,” the dissent wrote that reasonable insureds determine what a term in a policy means by considering the terms that surround it. Id., ¶¶ 52-55.
[xlix] Id., ¶ 46.