Cow Manure and Bat Guano. Not All Shit is Treated Equally.

“Manure has long been a normal and necessary part of the operation of a dairy farm. Dairy farmers have cows. Cows produce milk and manure. Dairy farmers utilize both milk and manure as assets to their farm operations: farmers sell milk, and farmers spread manure on their fields as a nutrient. The fields provide feed for the cows who repeat the cycle of milk and manure.”

So said a Wisconsin Court of Appeals on December 11, 2013 in the case of Wilson Mutual Ins. Co. v. Falk.

The case addressed whether manure is a covered “pollutant” under a farm owner’s policy issued by Wilson Mutual.  In early 2011 the Falks participated in a manure-use program approved by crop experts and Washington County authorities that permitted them to use their cow manure to fertilize their fields. Later that same year the Department of Natural Resources informed the Falks that their manure had polluted a local water source and neighbors were demanding money.  The Falks filed a claim with their insurance company, Wilson Mutual, who denied coverage claiming manure was a “pollutant” and excluded by their policy language.  “Pollutant” was defined in the policy as an “irritant or contaminant,” including “waste.” The insurance company was so confident in their position that they filed a suit against the Falks seeking a court declaration that manure is a “pollutant” and excluded from their policy.  The county (Circuit) court agreed with Wilson Mutual and the Falks appealed that decision.  The Court of Appeals reversed the decision, holding that cow manure is not a “pollutant” and Wilson Mutual must defend any claims against the Falks and pay any damages the Falks are responsible for.

Believe it or not, this is not the first time a Court has had to decide whether crap is a “pollutant.”  In Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶27, 338 Wis. 2d 761, 809 N.W.2d 529 a Court decided that bat guano that built up in the walls of a home causing enough damage to make the structure a total loss was a pollutant and the homeowners’ insurance company did not have to pay for rebuilding the home.

So what’s the difference between bat poop in 2012 and cow manure in 2013?  As the court states, “Manure is a matter of perspective.”  Yes, they actually wrote that in the opinion.  The Court explained its “perspective”,

“…while an average person may consider cow manure to be “waste,” a farmer sees manure as liquid gold. Manure in normal, customary use by a farmer is not an irritant or a contaminant, it is a nutrient that feeds the farmer’s fields that in turn feeds the cows so as to produce quality grade milk. Manure in the hands of a dairy farmer is not a “waste” product; it is a natural fertilizer. While bat guano is “waste” to a homeowner, and lead paint chips are universally understood by apartment building owners to be dangerous and pollutants, manure is beneficial to a dairy farmer.”

The Court also pointed out Wilson Mutual should have expected that farmers value manure as an asset since it insured a manure holding tank, manure pump and manure spreaders.  By assuming liability for the equipment and tools that store and spread manure Wilson Mutual also assumed liability for the claims associated with the manure after it was spread on fields.

So…. bat guano in a home is unexpected, unwanted, and thus, a pollutant.  Cow manure on fields is “liquid gold”.  That makes it about as clear as… well, mud.

Johanna R. Kirk – ATTORNEY

Kirk Law Office, L.L.C. – 1418 Tower Ave. Suite #6 – Superior, WI 54880

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