CURLEY, P.J.
¶ 1 Michael D. Phillips, Perry A. Petta, and Walkers Point Marble Arcade, Inc. (collectively, "Phillips") appeal the trial court's order granting declaratory/summary judgment to American Family Mutual Insurance Company ("American Family"), an intervening defendant that issued a business owner's policy to Aquila Group, LLC, an entity owned by Daniel G. Parmelee (collectively, "Parmelee"). Parmelee sold an apartment building to Phillips that was covered by the American Family policy. Phillips submits that the trial court correctly determined that there was an initial grant of coverage, but erred in its determination that the asbestos exclusion found in American Family's policy negated any insurance coverage for the damages sought in this suit and relieved American Family of the duty to defend. We conclude, as did the trial court, that there was an initial grant of coverage; however, the asbestos exclusion applies. Consequently, we affirm.
¶ 2 This case arises out of damages Phillips sustained as a result of the dispersal of asbestos in a twenty-unit apartment building that he purchased from Parmelee. Phillips sued Parmelee on November 12, 2010. He sought damages for breach of contract/warranty, a violation of WIS. STAT. §§ 895.446 and 943.20 (2009-10), negligence, and punitive damages.
¶ 3 Several months after Parmelee filed an answer, American Family filed a motion to intervene, bifurcate and stay the proceeding. In addition, it filed a counter-claim and cross-claim for declaratory judgment. American Family argued that while the business owners policy it issued to Parmelee in April 2006 covered the apartment building, due to exclusions listed in the policy it did not provide coverage for any damages sought by Phillips. After briefs and arguments by counsel, the trial court granted American Family's motion to intervene on May 9, 2011, and granted its motion for declaratory judgment on September 12, 2011, concluding that American Family's policy did not provide coverage to Parmelee due to the policy's asbestos exclusion; and further, that American Family had no duty to defend Parmelee. Shortly thereafter, Phillips filed a notice of appeal. The parties then stipulated to stay the trial court proceedings while the appeal was pending.
¶ 4 In his complaint, Phillips alleged that shortly after Parmelee purchased a twenty-unit apartment building in New London, Wisconsin, Parmelee decided to put the property back on the market for sale. Prior to purchasing the building, Parmelee had procured a building inspection and report. This report, dated March 29, 2006, indicated that the building contained various defects. Included in the report was a statement by the inspector that:
¶ 5 In the course of negotiating the sale of the building to Phillips, Parmelee completed and signed a real estate condition report for the property. In this report, Parmelee indicated that he was not "aware of the presence of asbestos or asbestos-containing materials on the premises." In addition, he indicated in the report that he was not "aware of a defect caused by unsafe concentrations of ... other potentially hazardous or toxic substances on the premises."
¶ 6 In September 2006, Parmelee accepted Phillips' offer to purchase the apartment building for $419,000. Prior to accepting the offer to purchase, Phillips was given a copy of the aforementioned real estate condition report and Parmelee again represented in the offer to purchase that "as of the date of acceptance [he had] no notice or knowledge of conditions affecting the Property." Although Parmelee claimed that he turned over his entire file on the property to Phillips for his review prior to accepting Phillips' offer to purchase the building, and that his file contained the March 29, 2006 building inspection report noting the probable presence of asbestos, Phillips denied ever seeing it at that time. Consequently, Phillips claimed that he was not put on notice that the property probably contained asbestos.
¶ 7 In 2007, asbestos was discovered on the property when a contractor hired by Phillips attempted to remove some pipes. As a result, the building was contaminated with asbestos, and the tenants were required to leave. Some time later, Phillips obtained the March 29, 2006 inspection report, which he denied ever having seen before.
¶ 8 As a result of the discovery of the asbestos, Phillips suffered serious financial problems, which ultimately led to the foreclosure of this and other properties owned by Phillips.
¶ 9 As noted, the trial court heard and granted American Family's motion for declaratory/summary judgment on September 12, 2011. American Family made numerous arguments in support of its position that Parmelee had no insurance coverage for the damages sought in this lawsuit. American Family argued that there was no "occurrence" or "property damage," as those terms are defined in the policy, and that several exclusions in the policy, particularly the asbestos exclusion, applied. American Family also argued that the total pollution exclusion and the punitive damages exclusion applied. In granting American Family's motion, the trial court determined that the "negligence claim triggered an initial grant of coverage," but the asbestos exclusion applied. Phillips' appeal followed.
¶ 10 We review a grant of summary judgment by applying the same methodology as the trial court, and our review is de novo. See Emjay Inv. Co. v. Village of Germantown, 2011 WI 31, ¶ 24, 333 Wis.2d 252, 797 N.W.2d 844. A party is entitled to summary judgment when there are no disputed issues of material fact and that party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).
¶ 11 When we interpret an insurance policy, we first examine the policy's insuring agreement to determine whether it makes an initial grant of coverage for the plaintiff's claim. See Olson v. Farrar, 2012 WI 3, ¶ 41, 338 Wis.2d 215, 809 N.W.2d 1. If the claim triggers an initial grant of coverage, we then determine whether any of the policy's exclusions preclude coverage. See id. Finally, we determine whether an exception to an exclusion reinstates coverage. See id.
¶ 12 Phillips contends that there is an initial grant of coverage under the policy's language because the facts alleged in the complaint establish that there was both an "occurrence" and "property damage." Phillips' complaint alleges that Parmelee made false or fraudulent representations concerning the property, and that he did so either knowingly or recklessly. In addition, Phillips alleges that Parmelee negligently failed to disclose the defective condition of the property. Phillips further contends that "the tenants had to leave the property, which resulted in a loss of profits and income, foreclosure of multiple properties, loss of equity in the Property and other properties owned by the Plaintiffs, and other damages."
¶ 13 The policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same harmful conditions." Similarly, in Schinner v. Gundrum, 2012 WI App 31, 340 Wis.2d 195, 811 N.W.2d 431, this court, in discussing what is an accident, looked at several dictionary definitions of the word "accident." Those included:
Id., ¶ 8 (citations and some capitalization omitted). Applying those definitions, it would appear that the exposure/dispersal of asbestos falls within the definition of an "occurrence." The complaint and Phillips' deposition establish that this occurred when a contractor cut through pipes that were, as it turned out, wrapped in asbestos. Phillips' deposition further explains that the exposure/dispersal of asbestos was unforeseen. This was due to Parmelee's forgetfulness and hasty filling out of the forms on which he ought to have disclosed the likely presence of asbestos, which — as Parmelee explained in his deposition — may have led to his failure to accurately state what he knew about the property:
Thus, we conclude that the facts alleged in the complaint and the deposition answers create the possibility of an accident. Because an occurrence is an accident, Phillips fulfills this policy's definition.
¶ 14 As to "property damage," the policy reads:
"Property damage" means:
Phillips' complaint alleges that the dispersal of the asbestos caused a loss of use of the property and other damages.
¶ 15 American Family, on the other hand, submits that this is insufficient to satisfy the property damage definition found in the policy. American Family points to Qualman v. Bruckmoser, 163 Wis.2d 361, 471 N.W.2d 282 (Ct.App.1991); Benjamin v. Dohm, 189 Wis.2d 352, 525 N.W.2d 371 (Ct.App.1994); and Smith v. Katz, 226 Wis.2d 798, 595 N.W.2d 345 (1999), as support for its position that what Phillips seeks are actually economic damages, not property damages, and consequently, Phillips' damages do not trigger an initial grant of coverage. However, in the newer case of Jares v. Ullrich, 2003 WI App 156, 266 Wis.2d 322, 667 N.W.2d 843, coverage was found for the Jareses, who purchased a home without having been told by the sellers that it was infested with raccoons and other animals. See id., ¶¶ 1-2. The insurance company in Jares argued that property damage requires "`physical injury to or destruction of tangible property.'" Id., ¶ 15. This court disagreed, concluding that the insurance company's analysis was "too narrow" because the complaint also alleged repair and restoration costs, which implied physical damage to the property. See id. Here, the definition of property damage is in fact even broader than the policy in Jares because it does not hinge on the existence of physical injury or destruction of tangible property. See id., ¶¶ 12, 14. As noted, the policy definition of "property damage" in the case before us includes "[l]oss of use of tangible property that is not physically injured." Consequently, Phillips has fulfilled the requirements to establish both an "occurrence" and "property damage" and there is an initial grant of coverage.
¶ 16 Phillips contends that the trial court erred in finding that the asbestos exclusion applies. Phillips makes several arguments. First, Phillips claims that the exclusion is ambiguous. Second, he argues that the asbestos exclusion does not apply to all alleged claims because "the complaint establishes damages beyond those related to the presence of asbestos." Third, he argues that neither the "total pollution" exclusion nor the "expected or intended injury" exclusion applies.
¶ 17 We disagree. The asbestos exclusion found in the policy reads, in pertinent part:
¶ 18 In addressing the asbestos exclusion, the trial court explained that:
¶ 19 In Phillips' argument to this court, Phillips adopts the argument raised by Parmelee below that the exclusion is ambiguous. "Insurance policy language is ambiguous `if it is susceptible to more than one reasonable interpretation.'" Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis.2d 617, 665 N.W.2d 857 (citation omitted). "If there is an ambiguous clause in an insurance policy, we will construe that clause in favor of the insured." Id. The goal in interpreting insurance contracts is to give effect to the parties' intent. Id., ¶ 12. "[E]xclusions are narrowly construed against the insurer." Link v. General Cas. Co. of Wis., 185 Wis.2d 394, 399, 518 N.W.2d 261 (Ct.App.1994).
¶ 20 Phillips reasons that by arguing that the alleged property damage was caused by the presence of asbestos, American Family "impermissibly broadened the language of the exclusion" and created an ambiguity because there is no mention of the words "accidental dispersal or mere presence" in the exclusion. Phillips claims that the more reasonable interpretation is to limit the exclusion to instances where the "property damage" arises out of the "exposure to" and "use of asbestos," and therefore "does not apply to accidental dispersal or mere presence." In support of this position, Phillips cites Great American Restoration Services Inc. v. Scottsdale Insurance Co., 78 A.D.3d 773, 774-75, 911 N.Y.S.2d 142 (2010), where the appellate division of the New York Supreme Court affirmed the trial court's ruling that an insurance policy's asbestos exclusion was ambiguous. In the reply brief, Phillips argues that the exclusion at issue is likewise ambiguous because the exclusion "fails to take into account or explain what form of asbestos is covered by the exclusion." Phillips advances the theory that a reasonable insured would assume the exclusion only covers asbestos in its friable state. We are not persuaded.
¶ 21 Phillips' attempt to create an ambiguity is unavailing. First, we observe that the exclusion here is very broad. The opening sentence advises the insured that "any loss arising out of, resulting from,
¶ 22 Further, a reasonable person reading the exclusion would not believe that the property damage had to arise out of the "exposure to" or "the use of asbestos" and not to "accidental dispersal or mere presence." This is so because of the comprehensive language used in the exclusion. Also, given the wording in the exclusion, a reasonable insured would not think that the exclusion only covers asbestos in its friable state. Indeed, the reasonable insured would, in all likelihood, not know what "friable asbestos" is.
¶ 23 We also see a significant distinction between the exclusion found in Great American Restoration Services and the one in Parmelee's policy. In that case, the court concluded:
Id., 78 A.D.3d at 775, 777, 911 N.Y.S.2d 142. The American Family asbestos exclusion in the case before us is far more sweeping than the one found in Great American Restoration Services.
¶ 24 Moreover, our conclusion is not novel; exclusions similar to that found in the American Family policy have been given effect in other jurisdictions. For example, in Pro-Tech Coatings, Inc. v. Union Standard Insurance Co., 897 S.W.2d 885, 891 (Tex.App.1995), the asbestos exclusion read:
This insurance does not apply to:
See id. (brackets in Pro-Tech Coatings). In both the Pro-Tech Coatings policy and the policy before us, the phrase "arising out of" is found in the exclusion.
¶ 25 Similarly, in State Farm Fire & Casualty Co. v. Acuity, 2005 WI App 77, 280 Wis.2d 624, 695 N.W.2d 883, this court approved a pollution exclusion, stating that "[t]he phrase `arising out of' is broad, general, and comprehensive," and "means something more than direct or immediate cause such as originating from, growing out of, or flowing from." Id., ¶¶ 13-14, 18 (citation omitted). Using that definition "arising out of," it is clear that a reasonable insured would believe that any damages caused by asbestos in any number of ways was excluded from coverage. Thus, we are satisfied that the exclusion in American Family's policy was unambiguous and broader in scope than the exclusion found in Great American Restoration Services.
¶ 26 Next, we address Phillips' claim that his complaint alleges damages not related to asbestos, including his argument that the negligent failure to disclose asbestos is not covered by the exclusion. We again disagree.
¶ 27 In LaFleur v. Hollier Floor Covering, Inc., 774 So.2d 359 (La.Ct.App. 3 Cir. 2000), an asbestos exclusion applied, which read:
Id. at 360. In LaFleur, Hollier did not dispute the validity of the exclusion, but like Phillips, urged the court to find that some of the acts and omissions fell outside the confines of the asbestos exclusion. See id. In finding no merit to the argument, the court wrote:
Id. The same is true here — all damages are related to asbestos in some form. Consequently, there are no other damages beyond those arising out of the existence of asbestos in the building.
¶ 28 Finally, we note that because we have already determined that the asbestos exclusion precludes coverage, we need not
¶ 29 For the reasons stated, the order of the trial court is affirmed.
Order affirmed.
All references are to the 2009-10 version of the statutes unless otherwise noted.