Legal Case Summary

to the last case for today, which is what some of the people who are our audience have been sitting through to get to and that is plead with more versus liberty mutual. Oh yeah, the pollution explosion. May it please the court. My name is John Sullivan and I am representing Liberty Mutual Fire and Churns Company along with my colleagues, Stacy Jumper in this matter. We've asked for five minutes of rebuttal. In this case, Liberty Mutual is a peeling from an order that was entered against it, granting summary judgment to the WITMORs in connection with a claim of damage to their home. We understand the oil was coming in and somebody somebody negligently either overfilled the top of the tank or there was a leaking pipe or something like that. Yes, our understanding, Your Honor, is that there was a and this was a spill situation. I'm not sure that in the record the exact mechanism of the spill is established. Okay, and Judge Pratter said it wasn't a pollutant because it didn't go into the air and you say, I mean we really do read these things and you say you're adding words into the contract and you're not supposed to do that, right? That's correct, Your Honor. We're saying that the contract language as written doesn't have an into the environment restriction. Isn't that inherent in the word pollution? No, I don't think it is, Your Honor, and in fact I think that there is binding precedent that has held that an into the environment requirement isn't implicit or explicit within that language. Binding precedent by whom? Actually, there are binding precedent from this court in the Reliance Insurance Company versus Mosner case and also from the Pennsylvania Supreme Court and this case is a diversity court, a diversity case in which Pennsylvania law applies and that cases the Madison construction case and Your Honor, I want to refer a little bit to real. Just to go on the same point, I thought when the Judge was talking about releasing to the environment, the Judge was seeking a definition of pollution and referencing what the definition was in various federal regulations and state snatches. What is it making the finding in this case but looking for a definition? Is it that the context in which the Judge reference released into the environment? The court did in this case look to environmental statutes and found that some of those statutes which refer to pollutants require or deal with situations in which there is a release into the environment and Judge Fuentes, I'd respond in two ways. First of all, if we look at the Madison construction case, the Madison construction case involved the situation in which there was a release within an enclosed facility in the Madison construction case. There were fumes. Correct. There were fumes and they caused the guy to go backwards and fall, etc. So there had been a release of fumes into the atmosphere. Your Honor, I would respectfully disagree. Well, you can't have fumes if it hasn't come out in some way, right? There was a release of fumes within the enclosed facility. Yeah, but there was a release of fumes. Was there any release of fumes in this case in the people's house? There wasn't, this isn't a fumes related case, but there was a release of the oil in that the oil was supposed to go into a storage tank and ended up in the Whitmore's base. But it didn't release out. I mean, they're not claiming, I think. They don't claim any damage other than physical damage, is that correct? Your Honor, they don't only don't claim any damage other than physical damage, but the only thing that this policy provided coverage for was damage to the Whitmore's house. Okay, so it was on the basement, maybe in the walls, maybe have repaint, etc

. First all of 18,000 between 12 and 18,000 dollars, right? And yes, and if I can get back a little bit to the question that you raised about the release of fumes in the Madison construction case, the reason that I think that it's important is that the court in that case did look at the Clean Air Act and the definition of pollutant in the Clean Air Act and found that the constituents that were released as fumes were pollutants. But the Clean Air Act by definition does not apply to releases within a building. It only applies to releases into the ambient air, which has been defined as releases outside of a building. When we go back and look at the Reliance Versus Mosener case, the Reliance Versus Mosener case is from a procedural standpoint, is an interesting case because it is decided after the Pennsylvania Superior Court issues its ruling in Madison construction. And in that case, the Pennsylvania Superior Court ended up ruling that it was in... The Pennsylvania Supreme Court decided Madison, not the Superior, right? What happened is Pennsylvania Superior Court decides Madison construction and says you can't have a release into the environment. Then this court in Reliance Versus Mosener looks at the Madison construction decision of the Pennsylvania Superior Court and says based on the Superior Court's decision, you can't read and into the environment requirement into the pollution exclusion. Your view is that heating oil given the nature, the chemical composition of it is a pollutant. Regardless of where it's built and what happens is heating oil is a pollutant and therefore clean up as excluded from your policy. Your honor, yes, as long as what happens is that a... We don't claim... Is it a tank? Is it a pollutant or is it not a pollutant? No. Okay. As far as I was going to say, I thought your argument was heating oil is a pollutant if it's found in a place where it's not supposed to be. That's exactly what our argument is. Any fumes, I mean, liquid gas, solid. There are a whole bunch of things, gasoline. It's in an underground source tank at the BP gas station. It's not a pollute, right? Your honor, that's..

. The tank leaks and it seeps into the soil. It becomes a pollutant. I thought that was your argument. That is precisely our argument. Is all a pollutant? Pardon me? Is called a pollutant. Your honor, I... I don't think that you can answer that question in the abstract. It depends. And this is what I thought that was the point of the Madison construction case. That if coal is where it shouldn't be, if it ends up that coal is, by way of example, dispose of on your front lawn, then your front lawn is polluted. If coal is put into a coal bin and is then being used to heat your home, it is not a pollutant. But then your policy is really not doing what one would look at it to do. I mean, you buy a policy and if they... I was trying to think of an analogy, it was hard to oil. The only thing I could think of was coal. They used to get... when I was little, they would deliver coal through down shoots, I think, down into the basement. Right? And if that coal went into the basement instead of into whatever was there for it and messed up the basement, and your policy wouldn't cover it, is that what you're telling us? Because it was not where it was supposed to be. Your Honor, I guess my answer is that I'm not sure that I have enough facts under that hypothetical to answer. And the reason that I'm saying that and I don't mean to be sidesteping your question is that when we look at this case, we have oil that contaminates a basement under the dictionary definition. And then when the people come to address the problem, they treat it as a pollutant

. They seal the basement to make sure... Well, they treat it as a source of the damage. I guess. I think that's what Judge Prada was saying. Let's look at this practically. You know, they have this policy, as I understand what she was doing, they have this policy, and it covers damage to the house and the property. And somebody negligently, let's assume that it came out of a leaking pipe or overfilled it. And that caused damage to the property, she said, and it's covered. As I understand what she's saying, she's saying, it's not what they were really concerned about with all these pollution exclusions, which really came into being in the industry. And I haven't had the time. We haven't had the time to look it up, but we could. They came into policies because of all this stuff, the environmental concern about the things that went into the air. Your Honor, you're not wrong that the pollution exclusions were a reaction to environmental... What was going on in the world from an environmental standpoint. But I would say, Your Honor, that that specific issue was raised and rejected in the Madison construction case. In Madison construction, the insured argued that the purpose of this exclusion was to address traditional environmental situations. A landfill. And the court in Madison construction, and in cases throughout the country, said, we read the language as it's written. The poll star of the contract interpretation is the policy language. And the policy language says that the test is whether the substance at issue has contaminated, it qualifies as a contaminant or an irritant. In this particular case, it qualifies..

. What does it mean to contaminate? So a dictionary definition of contaminant is essentially something that contaminates and I know. And something that contaminates is then defined as something that is rendered impure or unclean. And in this... It's hard, it's dirty. Judge Prouder found this was a contaminant. I mean, it's so broad, I can spill motor oil on my basement or garage floor and I can also spill a can of paint or a jar of spaghetti sauce and consider it contaminated. But your broad analysis and definition would exclude all of those from any covers. For example, if somebody slips and falls on a paint or a spaghetti sauce or a duet. Your Honor, I wouldn't consider the pollution exclusion would apply in your slip and fall analogy because of this. In that situation, the harm isn't caused because the substance that's on the floor is a contaminant or an irritant. It's a slippery substance. And what the courts have done, in fact in the Madison construction case, what happened was the person, the climate in that case was overcome by fumes and then slipped and fell. And I apologize because I'm out of time for my person. No, no, that's right. I just need more... I need more towels. Go ahead. No, keep on looking at this. We're looking at... and let me talk about a second aspect of.

.. You can also mention the absence of an expert report which was... A report was presented in the Madison case that aided the court, coming to its conclusion that there was a pollution. You're a core Europe's there. Because all the qualities were presented to the court and so forth. But that wasn't done in this case. No, and your honor, in the Madison construction case, I don't believe it was an expert report. I think it was a material safety data sheet, which is a description of the constituents of the court. It determined the qualities of the substance that was at issue. It did. But your honor, in this case, we were dealing with a situation in which we had Pennsylvania Superior Court precedent in the grand case that had ruled that heating oil was a pollute. We had federal statutes that had found that oil was a pollute. It's our position. It's probably about polluting perhaps the environment or the soil or groundwater. But the test, your honor, isn't under Madison construction. The test doesn't...does the substance qualify as a pollute under the particular... No, no, no. That's just what all the circumstances that are..

. A contributor damage, is I understand the test. Correct. And what we're looking at here, your honor, is we're saying we have a dictionary definition of polluting. This is something that has contaminated. This is something that has made unclean or impure in terms of the basement. We look at what happened from a factual standpoint in which when the spill occurred, one of the first things they tried to do was to make sure they sealed the drain so that the oil couldn't get any further than the basement, then the Liberty Mutual people came out, tested to see if there were any pathways of this substance into the groundwater. So all of the conduct at the time was to treat this as a contamination situation. Would it be any different if it had been paint going back to George Quentay's question? If it had been paint... They would do the same things, wouldn't they? Well, your honor, if it had been a paint spill, I guess in that situation, the first thing that I would want to know is what were the constituents of the paint and what was the nature... You say if I buy an insurance policy and somebody spills paint in my house and it messes up the floor, that the insurance company is going to look at what was in the paint? Your honor, and my problem is sometimes with the hypotheticals is that it depends. I mean, it's a perfectly valid, it's supposed to have been milk. Well, milk wouldn't qualify as a pollutant if the claim in your paint situation... I'm sorry, and I apologize, but if the claim was we now have paint on our floor and the paint has to be removed because essentially it's discolored before, then that's not a pollution situation. Well, but isn't that what happened in this case? There are substances that do have toxic, soft, quality such as varnish or shellag and things like that. I think it's still that on the floor. Would that be a pollutant? If you had a substance and again... There you have the fume situation, which could ignite. It could be and it was.

.. I apologize, but if it was a policy that there would be pollutants... I apologize. If it were your policy, there would be pollutants and any cleanup or physical damage would be excluded from coverage. It depends on the nature of the claim. Again, if what you're talking about is the situation in which there is a spill of a substance that gives off a toxic fume. But that's not what they're claiming. They didn't... if they had claimed that they were injured by the fumes or that the house was injured by the fumes or something like that, that would be different. But that's not this case. My law clerk asked a question and I can't answer it. He said, suppose there's a vile or something that has in it a radioactive substance? Was that your question? And it banged again. Somebody came by and broke a window with it. And it's clearly a pollutant that's in it. Would that be covered by the policy? In this analogy is the radioactive substance... It hasn't come out. It hasn't come out. It's just the window broke. No, that wouldn't be a pollution situation. Because what's happened in that situation is in order for the exclusion to be triggered, there has to be a release or a discharge of the pollutant. In that situation, you would have that the vile that contains the substance would be the mechanism for damage

. But the damage that occurred wouldn't be caused by a release of a toxic substance or any contaminant or pollutant. Okay. Thank you very much. Thank you, Robert. Interesting case. Good morning. If it please the court, my name is Stephen Feinstein. I represent the Whitmore's on this appeal. I'm going to try and give you the example that perhaps the court is searching for to explain the distinction. Assuming that the insurance policy had an endorsement in it for backups of sewage and drains, or there was otherwise coverage in the policy for an overflow of a toilet which would normally be in a policy, particularly one like this, which is an orisks policy, fecal matter or what we call black water, dirty water that comes into the house would clearly contaminate anything that it comes in touch with because of the fecal matter. And yet that would not be considered to be or should not be considered to be a contaminant or a or a pollution under the pollution exclusion as it is maintained by the insurance company. Because it is not because the policy would be under those circumstances would be specifically providing the coverage that was there. And I've never seen a circumstance contaminate. In the classic sense of the word it would contaminate but it would not be considered under the pollution exclusion. And I've never seen an example of a toilet overflow or a backup sewer and drain that was excluded under that portion of the policy. So it would all contaminate our pollutants. Correct. So what is a pollutant? A pollutant is, if you go back to the Madison decision, the Madison decision specifically gave guidelines as to determine whether something is a pollutant under the policy, if it is not expressly included in a laundry list of items that are excluded as a pollutant. And in this case there are no petroleum based products that are exclusive that are expressly contained in the exclusion. I'm glad that if this tank was outside and ruptured and heating oil came out into the soil that this would be considered a pollutant. Not under the Epstein decision. It wouldn't be. Under the Epstein decision, which followed the Madison guidelines, the soil going into the soil in round water would not be a pollutant? Under the Epstein decision which found that heating oil was not a pollutant as a matter of law, the answer to that question would be no. Under Judge Pratt's decision, the way she ordered her decision, the answer would be yes. She said that you win because this was not released into the environment. Correct. Correct

. Yes. So under her rationale, if the heating oil in this case, let's say it was a, I don't know, how many gallons do you know what we were talking about here? I really don't know. I don't know that that was a factually determined. Let's say 20 gallons. Okay. Under her analysis. Correct me if I'm wrong, but as I understand her analysis. If 10 gallons of the 20 gallons spill one under the floor and 10 gallons seeped under the footer and float into the yard. The part that went into the yard would be deemed a pollutant because it was quote released into the environment. That's one reading of her opinion. The way I, the right reading or the wrong reading. Well, I actually just feel free to tell me it's the wrong reading. I actually disagree with that because the way I read her opinion in order for it to be polluted, it would have to be released into the environment and then seeped into the house, not the other way around. If they had spilled the oil into the ground and then it seeped into the basement under her analysis, then it would be a pollutant. That was my hypothetical. The oil seeped into the environment into the soil and down into the groundwater. You said that's not a pollutant. I said under her, under her opinion it is. My hypothetical you said it wasn't a pollutant. Under what I said was that under the EPSIM decision it's not because under the EPSIM decision it said that it was that heating oil is not a pollutant as a matter of law. I'm going to figure out when is it for heating oil a pollutant and when is it not? According to you, it's never a pollutant. Our position is and it's consistent with the EPSIM decision that because the United States government, nor the Commonwealth of Pennsylvania, consider petroleum based heating oils to be pollutants, that it is not a pollutant as a matter of law. Why would all do respect to our employer who pays our wages? Why does it matter what the United States government says? This is a contract between private parties. Don't you have a right to determine by definition the contract what is a pollutant or what isn't? Regardless of what the EPA says. Because under the Madison decision, the Pennsylvania Supreme Court decision it said you have to look to those sorts of statutes to determine whether something is a pollutant or not a pollutant when it's not expressly included in the policy. They wrote that Madison says you have to look at whether the substance is found in a place where it belongs. Isn't that what Madison said? Maybe it's saying two contradictory things at the same time

. I don't think it's contradictory but I think it clearly indicates that if you have to understand that looking at these policies is a whole not even necessarily looking at the pollution exclusion. In the Commonwealth of Pennsylvania, in general, there is a presumption in favor of coverage. There's also in this type of policy which I've illustrated in the brief, is an all-risk policy which places the burden on the insurance company to show that it's not covered under the policy as opposed to me having the burden to show that it is covered under the policy. That's a black letter law we already know. But the help us sort through the tough issue. With that as a background, what Madison is saying is that because the insurance company has the ability to write the policy, it has the ability to put in specifically everything that it considers to be a pollutant that would be excluded under the policy. It's not required to list 19 things because then inevitably in, right, or 632 things because then the 633rd thing they didn't think of. I mean, they're not required to do that. I agree with that. However, what Madison has said is if they're not going to do that, and that's precisely why they don't do that is because the 633rd thing will pop up, is that where Madison says that if it is not expressly excluded under the policy or specifically defined, then you're going to look for other ways of determining whether to pollute under the policy. So the pencil being supreme court has issued a mandate in Madison which says you have to look to other sources to define what is a pollute, what is a pollute, no, what's not a pollute. So since the policy doesn't define that home heating oil is a pollute and under the policy, Madison says you have to go to other sources. Well, the Madison court, the Madison court actually cited statutes, which was from the Pennsylvania, from, from come with Pennsylvania and, and the United States, one of them was circular. They were both cited in the brief at the statutes that they did, which is exactly the analysis that the Epstein court did when it made a determination at home heating oil was not. You have seen no distinction at all between heating oil, a rupture tank, and spillage of heating oil inside home, and a tank that ruptures by a stream and the oil goes into that stream. You see no distinction. Are we asking on a personal level or are we legal, legal point on a legal level I will tell you that there are cases across the country that don't find a distinction. However, the one case that was decided on this issue, on this express issue, subsequent to Madison using the Madison analysis, which is, which is the Epstein case. But that's a district court unreported decision. That's not presidential. When you kept saying Epstein, I kept looking for, it's just, it's just one court and it's not presidential. It is, it is a district court case. It is not, it is not binding on this court. I understand that. But it is the only decision subsequent to Madison that has expressly ruled on the issue of the top of my head. I do not recall your own. It's the only case in the Commonwealth of Pennsylvania that has expressly addressed the issue of whether home heating oil is a pollutant and it found as a matter of what it was not. It was not a pollutant as a matter of law. Yes, but I guess I'm still struggling with this all or nothing. Isn't that just an abstract? I guess what I'm suggesting to you is it seems to me to be an abstract definition that defies common sense because when I'm filling up my gas tank at the station and I put the gas in the tank, it's not a pollutant. But when I somehow spill the gas all over the soil, it is a pollutant. I mean, how can you just say gasoline is, is a pollutant is not, how can you say home heating oil is or is not a pollutant depends where it's found and what function it's serving. But it's not me who's saying it was the Epstein court. Well, actually, I'm just a doctor, I'm just a doctor in the logic. But we need to decide whether, I'm, I, I, to say Epstein said it doesn't persuade me that Epstein got it right. But go ahead and think I'm giving you some examples why suggesting why Epstein may have the wrong explained me why I'm. Isn't it really what Judge Pratter said in a way? But using Judge Pratter's logic that would be along with your, with your logic, Judge Hardman, in the fact that. Based, she's saying it would have to be released into the environment before it becomes a pollute, right? Which goes directly to the first question. And what's, what's odd about that? Yes. Is this a homeowner's policy protecting a home? Yes. So Judge Pratter's analysis suggests that if it gets sent out of my home, then the pollution exclusion kicks in for homeowner's policy. But if it's polluting inside my home, the pollution exclusion doesn't kick it. And that's the, that's the, that seems to be upside down. The distinction I would draw aside from what I've said earlier was that as I read Judge Pratter's decision, if the home heating oil had been released into the ground and then seeped into the home, that it would be based upon the pollution exclusion would be applicable under your example that the home heating oil was released into the home and then. And then left the home and into the environment. I don't think, I think that the pollution exclusion would apply for the purposes of cleaning up the ground outside the house, but it may not apply to the damages that are inside the house because those damages were done by the release inside the home. I don't know why not. Yet. I guess in a homeowner, does the typical homeowner's policy cover, it covers the house and the curtain, the yard, right? The real estate, the house, the only the edifice. Correct. No, no, wait. Oh, I'm sorry. I'm sorry. I didn't know

. It was not a pollutant as a matter of law. Yes, but I guess I'm still struggling with this all or nothing. Isn't that just an abstract? I guess what I'm suggesting to you is it seems to me to be an abstract definition that defies common sense because when I'm filling up my gas tank at the station and I put the gas in the tank, it's not a pollutant. But when I somehow spill the gas all over the soil, it is a pollutant. I mean, how can you just say gasoline is, is a pollutant is not, how can you say home heating oil is or is not a pollutant depends where it's found and what function it's serving. But it's not me who's saying it was the Epstein court. Well, actually, I'm just a doctor, I'm just a doctor in the logic. But we need to decide whether, I'm, I, I, to say Epstein said it doesn't persuade me that Epstein got it right. But go ahead and think I'm giving you some examples why suggesting why Epstein may have the wrong explained me why I'm. Isn't it really what Judge Pratter said in a way? But using Judge Pratter's logic that would be along with your, with your logic, Judge Hardman, in the fact that. Based, she's saying it would have to be released into the environment before it becomes a pollute, right? Which goes directly to the first question. And what's, what's odd about that? Yes. Is this a homeowner's policy protecting a home? Yes. So Judge Pratter's analysis suggests that if it gets sent out of my home, then the pollution exclusion kicks in for homeowner's policy. But if it's polluting inside my home, the pollution exclusion doesn't kick it. And that's the, that's the, that seems to be upside down. The distinction I would draw aside from what I've said earlier was that as I read Judge Pratter's decision, if the home heating oil had been released into the ground and then seeped into the home, that it would be based upon the pollution exclusion would be applicable under your example that the home heating oil was released into the home and then. And then left the home and into the environment. I don't think, I think that the pollution exclusion would apply for the purposes of cleaning up the ground outside the house, but it may not apply to the damages that are inside the house because those damages were done by the release inside the home. I don't know why not. Yet. I guess in a homeowner, does the typical homeowner's policy cover, it covers the house and the curtain, the yard, right? The real estate, the house, the only the edifice. Correct. No, no, wait. Oh, I'm sorry. I'm sorry. I didn't know. I didn't get, I'm sorry. I didn't hear the question. Could you, does this policy, I guess, forget what the typical one says. Is this policy cover the edifice only or the edifice in the yard, the real estate? It's an interesting question because it clearly, you know, it clearly, it clearly covers the house. There are times when it is going to cover certain things on the property outside the house, and it will be times when it's not. For example, if there is a broken drain pipe that is outside the actual structure, it may cover the access to repair a broken drain pipe. But if there is a, but if there was a spillage of oil onto the ground, it very well might not. Does it cover a child's playset outside? That may depend on whether, are we talking about from, I'm just talking about what an ordinary homeowners policy covers. Orres, I mean, I think that's what it, I would argue. You don't represent the insurance company, we were just Mr Sullivan. I would certainly argue unless that I found that there was express language in the policy to say that, that playgrounds, you know, a playset is not covered under the policy. There are policies I've seen that will exclude such things. It may depend on whether it's permanently attached to the ground. It may depend, it's going to depend on the express facts of the, the specific facts of the case, and it's going to depend on the specific language that's contained in the policy. So it's impossible to answer that question in the abstract. Isn't there though something in Congress about the district court's notion that the pollution exclusion kicks in if it's released outside the edifice, but if the, if the contaminant room, and she called it a contaminant, there's no doubt this contaminated the basement. Isn't there something in Congress about saying that when it's released outside the edifice, the exclusion kicks in, but as long as it stays within the edifice, no, the exclusion doesn't kick in it. How do you explain that distinction? I'm not sure. Actually, that helps you 100%. Under Judge Pratter's decision, that's exactly what Judge Pratter decided. But what's... But even if it stayed inside... No, I know it stayed inside of the edifice

. I didn't get, I'm sorry. I didn't hear the question. Could you, does this policy, I guess, forget what the typical one says. Is this policy cover the edifice only or the edifice in the yard, the real estate? It's an interesting question because it clearly, you know, it clearly, it clearly covers the house. There are times when it is going to cover certain things on the property outside the house, and it will be times when it's not. For example, if there is a broken drain pipe that is outside the actual structure, it may cover the access to repair a broken drain pipe. But if there is a, but if there was a spillage of oil onto the ground, it very well might not. Does it cover a child's playset outside? That may depend on whether, are we talking about from, I'm just talking about what an ordinary homeowners policy covers. Orres, I mean, I think that's what it, I would argue. You don't represent the insurance company, we were just Mr Sullivan. I would certainly argue unless that I found that there was express language in the policy to say that, that playgrounds, you know, a playset is not covered under the policy. There are policies I've seen that will exclude such things. It may depend on whether it's permanently attached to the ground. It may depend, it's going to depend on the express facts of the, the specific facts of the case, and it's going to depend on the specific language that's contained in the policy. So it's impossible to answer that question in the abstract. Isn't there though something in Congress about the district court's notion that the pollution exclusion kicks in if it's released outside the edifice, but if the, if the contaminant room, and she called it a contaminant, there's no doubt this contaminated the basement. Isn't there something in Congress about saying that when it's released outside the edifice, the exclusion kicks in, but as long as it stays within the edifice, no, the exclusion doesn't kick in it. How do you explain that distinction? I'm not sure. Actually, that helps you 100%. Under Judge Pratter's decision, that's exactly what Judge Pratter decided. But what's... But even if it stayed inside... No, I know it stayed inside of the edifice. But if it had released the edifice, well, unless it had released the edifice... There's not a few. There's not a few. But if it had released the edifice, then I gather from Mr. Sullivan that it would... Well, he thinks all the things excluded. But... If it's not... I guess what I'm suggesting is... If it's excluded. If it gets away from where it's supposed to be, what differences it make where it travels. That's it. If it's not... We're getting into metaphysics here on this $12,000 or $18,000. I know it's important to your clients, but it is

. But if it had released the edifice, well, unless it had released the edifice... There's not a few. There's not a few. But if it had released the edifice, then I gather from Mr. Sullivan that it would... Well, he thinks all the things excluded. But... If it's not... I guess what I'm suggesting is... If it's excluded. If it gets away from where it's supposed to be, what differences it make where it travels. That's it. If it's not... We're getting into metaphysics here on this $12,000 or $18,000. I know it's important to your clients, but it is. If it's in the heating oil, these trucks come up and they've heating oil. And they're hoses, right? And they transfer it from the truck into the house. If it's in the truck, it's not a pollutant. If it's in the hose, it's not a pollutant. If it's in the tank, it's not a pollutant. Once it leaves any one of those three places where it's supposed to be, why does it not then become a pollutant and remain a pollutant? Because it ain't where it's supposed to be. And it's causing damage. Because the question is dependent upon what your definition of what a pollutant is. If you look at the definition of a pollutant solely in the context of something is in the place that it's not supposed to be, then I don't have an answer for you other than to say that you're right. However, Judge Pratter looked at it and this was the entire problem that was presented in my opinion based upon the arguments that were made by the defendant. They were putting the card before the horse. They were saying that a pollutant, you can't read that requirement into the policy. Judge Pratter, as the very first question you're on or asked, Mr. Sullivan, it was a definitional thing. Judge Pratter, this is the way she decided to define what a pollutant is. And when she decided to define what a pollutant is, she said in order for it to be a pollutant, it has to be released into the environment. And if you look at it from that perspective, then it is not a pollutant under the facts of this particular case. She actually said it's ambiguous. I'm sorry? She said the exclusion provision was ambiguous and that tip didn't favor of your client. I thought you would. I mean, I thought Judge Hardeman's questions were right up where you would want us to hold and you didn't. You have to understand that I'm coming here under two. You just have to, what you want to do, what you should want to do is just uphold Judge Pratter's verdict and opinion, period. And I don't know why you would knock that part of her opinion that doesn't hurt you. Because the fact is that it does hurt in short. Yeah, but you're not representing the insureds. Is that right or do you represent the insureds? I represent the association of insureds

. If it's in the heating oil, these trucks come up and they've heating oil. And they're hoses, right? And they transfer it from the truck into the house. If it's in the truck, it's not a pollutant. If it's in the hose, it's not a pollutant. If it's in the tank, it's not a pollutant. Once it leaves any one of those three places where it's supposed to be, why does it not then become a pollutant and remain a pollutant? Because it ain't where it's supposed to be. And it's causing damage. Because the question is dependent upon what your definition of what a pollutant is. If you look at the definition of a pollutant solely in the context of something is in the place that it's not supposed to be, then I don't have an answer for you other than to say that you're right. However, Judge Pratter looked at it and this was the entire problem that was presented in my opinion based upon the arguments that were made by the defendant. They were putting the card before the horse. They were saying that a pollutant, you can't read that requirement into the policy. Judge Pratter, as the very first question you're on or asked, Mr. Sullivan, it was a definitional thing. Judge Pratter, this is the way she decided to define what a pollutant is. And when she decided to define what a pollutant is, she said in order for it to be a pollutant, it has to be released into the environment. And if you look at it from that perspective, then it is not a pollutant under the facts of this particular case. She actually said it's ambiguous. I'm sorry? She said the exclusion provision was ambiguous and that tip didn't favor of your client. I thought you would. I mean, I thought Judge Hardeman's questions were right up where you would want us to hold and you didn't. You have to understand that I'm coming here under two. You just have to, what you want to do, what you should want to do is just uphold Judge Pratter's verdict and opinion, period. And I don't know why you would knock that part of her opinion that doesn't hurt you. Because the fact is that it does hurt in short. Yeah, but you're not representing the insureds. Is that right or do you represent the insureds? I represent the association of insureds. No, I represent the Whitmore's in this case. And in my brief, as we've indicated, we want you to uphold the decision. However, at the same time, we feel that the home heating oil is not a pollutant at all. If the court finds that under the circumstances that Judge Pratter indicated it is a pollutant, then we would simply ask you to affirm her decision. We just don't think her decision went far enough, in all honesty. It's nature, it's not a pollutant, but it depends what happens. It's Judge Hardeman's point. It depends if it's where it's not supposed to be, it just might be. If it's in the soil and it's seeping to the groundwater, it's a pollutant. If I can just adjust one last point, I rise. You're way over your time. Okay, thank you. Thank you. Mr. Sullivan, you reserved two, three minutes. I reserved five minutes, Your Honor. Five minutes, but you took most of that before. I'm happy to be shorter if you would prefer your honor. Let me respond to a couple of issues that were raised. First, the policy that was issued, the coverage that we're talking about, is coverage only for the home. The policy says that it will describe the types of property that are covered. It identifies the residents where the Whitmore's live. It specifically says that land isn't covered. So a solution exclusion that kicks in once it hits the land is totally silly in a policy like this then. Exactly, because typically exclusions take away coverage that would otherwise be provided. I don't even need to get to the pollution exclusion if I've got contamination. I covered

. No, I represent the Whitmore's in this case. And in my brief, as we've indicated, we want you to uphold the decision. However, at the same time, we feel that the home heating oil is not a pollutant at all. If the court finds that under the circumstances that Judge Pratter indicated it is a pollutant, then we would simply ask you to affirm her decision. We just don't think her decision went far enough, in all honesty. It's nature, it's not a pollutant, but it depends what happens. It's Judge Hardeman's point. It depends if it's where it's not supposed to be, it just might be. If it's in the soil and it's seeping to the groundwater, it's a pollutant. If I can just adjust one last point, I rise. You're way over your time. Okay, thank you. Thank you. Mr. Sullivan, you reserved two, three minutes. I reserved five minutes, Your Honor. Five minutes, but you took most of that before. I'm happy to be shorter if you would prefer your honor. Let me respond to a couple of issues that were raised. First, the policy that was issued, the coverage that we're talking about, is coverage only for the home. The policy says that it will describe the types of property that are covered. It identifies the residents where the Whitmore's live. It specifically says that land isn't covered. So a solution exclusion that kicks in once it hits the land is totally silly in a policy like this then. Exactly, because typically exclusions take away coverage that would otherwise be provided. I don't even need to get to the pollution exclusion if I've got contamination. I covered. Exactly. The other issue that was raised and was this issue of, you know, is something a pollutant in the abstract. And the answer is, I think exactly what Judge Harderman had said, that whether something is a pollutant depends on where it is. By way of example, in the Wagner case, which was a Pennsylvania Superior Court case, the court specifically looked at the argument that was made by the policy holder in that case because the substance at issue was gasoline. And the policy holder said gasoline is a useful substance. Well, you would say then that the heating oil is a pollutant here because it contaminated the floor of the plaintiffs' residence. That's exactly what I would say. But other things can contaminate the floor of the plaintiffs' residence. Milk. Milk. Any number of things. Well, you're on her. So, you see, this is where we get back to the district court's decision. You really have an ambiguous issue here. And she decided because of that, her favorite of the plaintiffs. But you're on her. You could have had a provision that excluded heating oil in your contract. We could have, but you're on her if we had had an exclusion that set out every toxic substance, the toxic substance registry is thousands of substances. That's what I'm saying. And if we were talking about milk, the reason it wouldn't qualify as a pollutant because, first of all, no one in the common parlance would say that if you had a spill of milk in your kitchen, that your kitchen was contaminated. Take his example. And the answer in terms of paint is that no one in the common parlance would refer to paint as a substance that had polluted if you basically had. But didn't you answer by saying it depends on what was in the paint? Well, and I may have answered it in artfully and I'll try to fix that. I thought that's what you said. It depends on what the nature of the claim is. By way of example. Did I mention my house claim? In a damage to the house claim, then I would say that you wouldn't have a situation in which the pollution exclusion would apply

. Exactly. The other issue that was raised and was this issue of, you know, is something a pollutant in the abstract. And the answer is, I think exactly what Judge Harderman had said, that whether something is a pollutant depends on where it is. By way of example, in the Wagner case, which was a Pennsylvania Superior Court case, the court specifically looked at the argument that was made by the policy holder in that case because the substance at issue was gasoline. And the policy holder said gasoline is a useful substance. Well, you would say then that the heating oil is a pollutant here because it contaminated the floor of the plaintiffs' residence. That's exactly what I would say. But other things can contaminate the floor of the plaintiffs' residence. Milk. Milk. Any number of things. Well, you're on her. So, you see, this is where we get back to the district court's decision. You really have an ambiguous issue here. And she decided because of that, her favorite of the plaintiffs. But you're on her. You could have had a provision that excluded heating oil in your contract. We could have, but you're on her if we had had an exclusion that set out every toxic substance, the toxic substance registry is thousands of substances. That's what I'm saying. And if we were talking about milk, the reason it wouldn't qualify as a pollutant because, first of all, no one in the common parlance would say that if you had a spill of milk in your kitchen, that your kitchen was contaminated. Take his example. And the answer in terms of paint is that no one in the common parlance would refer to paint as a substance that had polluted if you basically had. But didn't you answer by saying it depends on what was in the paint? Well, and I may have answered it in artfully and I'll try to fix that. I thought that's what you said. It depends on what the nature of the claim is. By way of example. Did I mention my house claim? In a damage to the house claim, then I would say that you wouldn't have a situation in which the pollution exclusion would apply. But the majesty construction case was not that much different from paint. It was a floor coating that gave off a fume that hurt the plaintiff. Because he fell. Well, he was overcome by the fumes first. So I really do look at it and say it really does depend on the circumstances. The problem that we have with the test that was annunciated by Judge Pratter is. If this oil spill had occurred outside. Judge Pratter would have said pollution exclusion applies. I don't think we would have needed it because we wouldn't have coverage for land. But if it happens inside, pollution exclusion doesn't apply. Even though oil is identified as a pollutant. You said it depends on the circumstances. Is that what she's doing? But the problem is I think that the court cannot say that. The Judge Pratter was wrong in saying that because the Madison Construction Court specifically said. We're not going to read an into the environment requirement into policy language that doesn't say it. It's improper to do it. And what the Judge did is by incorporating a statute that said. Talked about pollution of the water and said, well. Therefore, I'm going to read an into the environment requirement into it. She did it through the back door, but she still ended up with her. The rationale for her decision was because the heating oil wasn't released into the environment. The exclusion does not apply. And Madison Construction says you can't do that. But even if she got that wrong, we might affirm her by finding that she shouldn't have said this was a contaminant. Your Honor, and it's certainly possible that the court could look at the definition of contaminant. But I think under a dictionary definition, this was contaminated. But it doesn't have to be polluted if it's a contaminant, though

. But the majesty construction case was not that much different from paint. It was a floor coating that gave off a fume that hurt the plaintiff. Because he fell. Well, he was overcome by the fumes first. So I really do look at it and say it really does depend on the circumstances. The problem that we have with the test that was annunciated by Judge Pratter is. If this oil spill had occurred outside. Judge Pratter would have said pollution exclusion applies. I don't think we would have needed it because we wouldn't have coverage for land. But if it happens inside, pollution exclusion doesn't apply. Even though oil is identified as a pollutant. You said it depends on the circumstances. Is that what she's doing? But the problem is I think that the court cannot say that. The Judge Pratter was wrong in saying that because the Madison Construction Court specifically said. We're not going to read an into the environment requirement into policy language that doesn't say it. It's improper to do it. And what the Judge did is by incorporating a statute that said. Talked about pollution of the water and said, well. Therefore, I'm going to read an into the environment requirement into it. She did it through the back door, but she still ended up with her. The rationale for her decision was because the heating oil wasn't released into the environment. The exclusion does not apply. And Madison Construction says you can't do that. But even if she got that wrong, we might affirm her by finding that she shouldn't have said this was a contaminant. Your Honor, and it's certainly possible that the court could look at the definition of contaminant. But I think under a dictionary definition, this was contaminated. But it doesn't have to be polluted if it's a contaminant, though. They're not perfectly co-equal. Polluting is defined in the insurance contract as a contaminant or an irritant. So I do think that they... Then you give the wrong answer for the paint hypothetical. Because if the definition of contaminant is something that makes it impure, when I fill paint all over my kitchen floor, I've made my kitchen floor impure. It's the contaminant, right? And your Honor, I... Same with syrup or milk. I mean, my gosh, I haven't had this pleasure of smelling weak old milk. But I would imagine if... I don't put that on bias. I mean, if you're on vacation and you, you know, for the weekend and you have a house sitter watching your dog and your dog gets into your fridge and spills everything you come home, I mean, that's going to render your kitchen impure, right? Those are... It would render your... Those are... Those are.

. They're not perfectly co-equal. Polluting is defined in the insurance contract as a contaminant or an irritant. So I do think that they... Then you give the wrong answer for the paint hypothetical. Because if the definition of contaminant is something that makes it impure, when I fill paint all over my kitchen floor, I've made my kitchen floor impure. It's the contaminant, right? And your Honor, I... Same with syrup or milk. I mean, my gosh, I haven't had this pleasure of smelling weak old milk. But I would imagine if... I don't put that on bias. I mean, if you're on vacation and you, you know, for the weekend and you have a house sitter watching your dog and your dog gets into your fridge and spills everything you come home, I mean, that's going to render your kitchen impure, right? Those are... It would render your... Those are... Those are... Those are foodstuffs that are all over the floor. And you may be in a situation in which a situation like that, you would be stretching the pollution exclusion too far. But I do think that when you're in a situation in which you have something that has contaminated the basement under addictionary definition and does qualify as a pollutant under environmental statutes. And is treated as a pollutant. And I do think that it's important that you have people come in that environmental consultants come in to look at this... What this problem is. And the only thing that has happened here... And the problem for vacation, I clean up the mess in the floor. I don't call it hazmat or, you know, some expert to come in and quarantine the place that's significant. Well, I think it's significant because the exclusion has to be construed in the context of the particular set of facts. Mr. Sullivan, your red light is on. I apologize for going over it. That's okay. Thank you for your time.

to the last case for today, which is what some of the people who are our audience have been sitting through to get to and that is plead with more versus liberty mutual. Oh yeah, the pollution explosion. May it please the court. My name is John Sullivan and I am representing Liberty Mutual Fire and Churns Company along with my colleagues, Stacy Jumper in this matter. We've asked for five minutes of rebuttal. In this case, Liberty Mutual is a peeling from an order that was entered against it, granting summary judgment to the WITMORs in connection with a claim of damage to their home. We understand the oil was coming in and somebody somebody negligently either overfilled the top of the tank or there was a leaking pipe or something like that. Yes, our understanding, Your Honor, is that there was a and this was a spill situation. I'm not sure that in the record the exact mechanism of the spill is established. Okay, and Judge Pratter said it wasn't a pollutant because it didn't go into the air and you say, I mean we really do read these things and you say you're adding words into the contract and you're not supposed to do that, right? That's correct, Your Honor. We're saying that the contract language as written doesn't have an into the environment restriction. Isn't that inherent in the word pollution? No, I don't think it is, Your Honor, and in fact I think that there is binding precedent that has held that an into the environment requirement isn't implicit or explicit within that language. Binding precedent by whom? Actually, there are binding precedent from this court in the Reliance Insurance Company versus Mosner case and also from the Pennsylvania Supreme Court and this case is a diversity court, a diversity case in which Pennsylvania law applies and that cases the Madison construction case and Your Honor, I want to refer a little bit to real. Just to go on the same point, I thought when the Judge was talking about releasing to the environment, the Judge was seeking a definition of pollution and referencing what the definition was in various federal regulations and state snatches. What is it making the finding in this case but looking for a definition? Is it that the context in which the Judge reference released into the environment? The court did in this case look to environmental statutes and found that some of those statutes which refer to pollutants require or deal with situations in which there is a release into the environment and Judge Fuentes, I'd respond in two ways. First of all, if we look at the Madison construction case, the Madison construction case involved the situation in which there was a release within an enclosed facility in the Madison construction case. There were fumes. Correct. There were fumes and they caused the guy to go backwards and fall, etc. So there had been a release of fumes into the atmosphere. Your Honor, I would respectfully disagree. Well, you can't have fumes if it hasn't come out in some way, right? There was a release of fumes within the enclosed facility. Yeah, but there was a release of fumes. Was there any release of fumes in this case in the people's house? There wasn't, this isn't a fumes related case, but there was a release of the oil in that the oil was supposed to go into a storage tank and ended up in the Whitmore's base. But it didn't release out. I mean, they're not claiming, I think. They don't claim any damage other than physical damage, is that correct? Your Honor, they don't only don't claim any damage other than physical damage, but the only thing that this policy provided coverage for was damage to the Whitmore's house. Okay, so it was on the basement, maybe in the walls, maybe have repaint, etc. First all of 18,000 between 12 and 18,000 dollars, right? And yes, and if I can get back a little bit to the question that you raised about the release of fumes in the Madison construction case, the reason that I think that it's important is that the court in that case did look at the Clean Air Act and the definition of pollutant in the Clean Air Act and found that the constituents that were released as fumes were pollutants. But the Clean Air Act by definition does not apply to releases within a building. It only applies to releases into the ambient air, which has been defined as releases outside of a building. When we go back and look at the Reliance Versus Mosener case, the Reliance Versus Mosener case is from a procedural standpoint, is an interesting case because it is decided after the Pennsylvania Superior Court issues its ruling in Madison construction. And in that case, the Pennsylvania Superior Court ended up ruling that it was in... The Pennsylvania Supreme Court decided Madison, not the Superior, right? What happened is Pennsylvania Superior Court decides Madison construction and says you can't have a release into the environment. Then this court in Reliance Versus Mosener looks at the Madison construction decision of the Pennsylvania Superior Court and says based on the Superior Court's decision, you can't read and into the environment requirement into the pollution exclusion. Your view is that heating oil given the nature, the chemical composition of it is a pollutant. Regardless of where it's built and what happens is heating oil is a pollutant and therefore clean up as excluded from your policy. Your honor, yes, as long as what happens is that a... We don't claim... Is it a tank? Is it a pollutant or is it not a pollutant? No. Okay. As far as I was going to say, I thought your argument was heating oil is a pollutant if it's found in a place where it's not supposed to be. That's exactly what our argument is. Any fumes, I mean, liquid gas, solid. There are a whole bunch of things, gasoline. It's in an underground source tank at the BP gas station. It's not a pollute, right? Your honor, that's... The tank leaks and it seeps into the soil. It becomes a pollutant. I thought that was your argument. That is precisely our argument. Is all a pollutant? Pardon me? Is called a pollutant. Your honor, I... I don't think that you can answer that question in the abstract. It depends. And this is what I thought that was the point of the Madison construction case. That if coal is where it shouldn't be, if it ends up that coal is, by way of example, dispose of on your front lawn, then your front lawn is polluted. If coal is put into a coal bin and is then being used to heat your home, it is not a pollutant. But then your policy is really not doing what one would look at it to do. I mean, you buy a policy and if they... I was trying to think of an analogy, it was hard to oil. The only thing I could think of was coal. They used to get... when I was little, they would deliver coal through down shoots, I think, down into the basement. Right? And if that coal went into the basement instead of into whatever was there for it and messed up the basement, and your policy wouldn't cover it, is that what you're telling us? Because it was not where it was supposed to be. Your Honor, I guess my answer is that I'm not sure that I have enough facts under that hypothetical to answer. And the reason that I'm saying that and I don't mean to be sidesteping your question is that when we look at this case, we have oil that contaminates a basement under the dictionary definition. And then when the people come to address the problem, they treat it as a pollutant. They seal the basement to make sure... Well, they treat it as a source of the damage. I guess. I think that's what Judge Prada was saying. Let's look at this practically. You know, they have this policy, as I understand what she was doing, they have this policy, and it covers damage to the house and the property. And somebody negligently, let's assume that it came out of a leaking pipe or overfilled it. And that caused damage to the property, she said, and it's covered. As I understand what she's saying, she's saying, it's not what they were really concerned about with all these pollution exclusions, which really came into being in the industry. And I haven't had the time. We haven't had the time to look it up, but we could. They came into policies because of all this stuff, the environmental concern about the things that went into the air. Your Honor, you're not wrong that the pollution exclusions were a reaction to environmental... What was going on in the world from an environmental standpoint. But I would say, Your Honor, that that specific issue was raised and rejected in the Madison construction case. In Madison construction, the insured argued that the purpose of this exclusion was to address traditional environmental situations. A landfill. And the court in Madison construction, and in cases throughout the country, said, we read the language as it's written. The poll star of the contract interpretation is the policy language. And the policy language says that the test is whether the substance at issue has contaminated, it qualifies as a contaminant or an irritant. In this particular case, it qualifies... What does it mean to contaminate? So a dictionary definition of contaminant is essentially something that contaminates and I know. And something that contaminates is then defined as something that is rendered impure or unclean. And in this... It's hard, it's dirty. Judge Prouder found this was a contaminant. I mean, it's so broad, I can spill motor oil on my basement or garage floor and I can also spill a can of paint or a jar of spaghetti sauce and consider it contaminated. But your broad analysis and definition would exclude all of those from any covers. For example, if somebody slips and falls on a paint or a spaghetti sauce or a duet. Your Honor, I wouldn't consider the pollution exclusion would apply in your slip and fall analogy because of this. In that situation, the harm isn't caused because the substance that's on the floor is a contaminant or an irritant. It's a slippery substance. And what the courts have done, in fact in the Madison construction case, what happened was the person, the climate in that case was overcome by fumes and then slipped and fell. And I apologize because I'm out of time for my person. No, no, that's right. I just need more... I need more towels. Go ahead. No, keep on looking at this. We're looking at... and let me talk about a second aspect of... You can also mention the absence of an expert report which was... A report was presented in the Madison case that aided the court, coming to its conclusion that there was a pollution. You're a core Europe's there. Because all the qualities were presented to the court and so forth. But that wasn't done in this case. No, and your honor, in the Madison construction case, I don't believe it was an expert report. I think it was a material safety data sheet, which is a description of the constituents of the court. It determined the qualities of the substance that was at issue. It did. But your honor, in this case, we were dealing with a situation in which we had Pennsylvania Superior Court precedent in the grand case that had ruled that heating oil was a pollute. We had federal statutes that had found that oil was a pollute. It's our position. It's probably about polluting perhaps the environment or the soil or groundwater. But the test, your honor, isn't under Madison construction. The test doesn't...does the substance qualify as a pollute under the particular... No, no, no. That's just what all the circumstances that are... A contributor damage, is I understand the test. Correct. And what we're looking at here, your honor, is we're saying we have a dictionary definition of polluting. This is something that has contaminated. This is something that has made unclean or impure in terms of the basement. We look at what happened from a factual standpoint in which when the spill occurred, one of the first things they tried to do was to make sure they sealed the drain so that the oil couldn't get any further than the basement, then the Liberty Mutual people came out, tested to see if there were any pathways of this substance into the groundwater. So all of the conduct at the time was to treat this as a contamination situation. Would it be any different if it had been paint going back to George Quentay's question? If it had been paint... They would do the same things, wouldn't they? Well, your honor, if it had been a paint spill, I guess in that situation, the first thing that I would want to know is what were the constituents of the paint and what was the nature... You say if I buy an insurance policy and somebody spills paint in my house and it messes up the floor, that the insurance company is going to look at what was in the paint? Your honor, and my problem is sometimes with the hypotheticals is that it depends. I mean, it's a perfectly valid, it's supposed to have been milk. Well, milk wouldn't qualify as a pollutant if the claim in your paint situation... I'm sorry, and I apologize, but if the claim was we now have paint on our floor and the paint has to be removed because essentially it's discolored before, then that's not a pollution situation. Well, but isn't that what happened in this case? There are substances that do have toxic, soft, quality such as varnish or shellag and things like that. I think it's still that on the floor. Would that be a pollutant? If you had a substance and again... There you have the fume situation, which could ignite. It could be and it was... I apologize, but if it was a policy that there would be pollutants... I apologize. If it were your policy, there would be pollutants and any cleanup or physical damage would be excluded from coverage. It depends on the nature of the claim. Again, if what you're talking about is the situation in which there is a spill of a substance that gives off a toxic fume. But that's not what they're claiming. They didn't... if they had claimed that they were injured by the fumes or that the house was injured by the fumes or something like that, that would be different. But that's not this case. My law clerk asked a question and I can't answer it. He said, suppose there's a vile or something that has in it a radioactive substance? Was that your question? And it banged again. Somebody came by and broke a window with it. And it's clearly a pollutant that's in it. Would that be covered by the policy? In this analogy is the radioactive substance... It hasn't come out. It hasn't come out. It's just the window broke. No, that wouldn't be a pollution situation. Because what's happened in that situation is in order for the exclusion to be triggered, there has to be a release or a discharge of the pollutant. In that situation, you would have that the vile that contains the substance would be the mechanism for damage. But the damage that occurred wouldn't be caused by a release of a toxic substance or any contaminant or pollutant. Okay. Thank you very much. Thank you, Robert. Interesting case. Good morning. If it please the court, my name is Stephen Feinstein. I represent the Whitmore's on this appeal. I'm going to try and give you the example that perhaps the court is searching for to explain the distinction. Assuming that the insurance policy had an endorsement in it for backups of sewage and drains, or there was otherwise coverage in the policy for an overflow of a toilet which would normally be in a policy, particularly one like this, which is an orisks policy, fecal matter or what we call black water, dirty water that comes into the house would clearly contaminate anything that it comes in touch with because of the fecal matter. And yet that would not be considered to be or should not be considered to be a contaminant or a or a pollution under the pollution exclusion as it is maintained by the insurance company. Because it is not because the policy would be under those circumstances would be specifically providing the coverage that was there. And I've never seen a circumstance contaminate. In the classic sense of the word it would contaminate but it would not be considered under the pollution exclusion. And I've never seen an example of a toilet overflow or a backup sewer and drain that was excluded under that portion of the policy. So it would all contaminate our pollutants. Correct. So what is a pollutant? A pollutant is, if you go back to the Madison decision, the Madison decision specifically gave guidelines as to determine whether something is a pollutant under the policy, if it is not expressly included in a laundry list of items that are excluded as a pollutant. And in this case there are no petroleum based products that are exclusive that are expressly contained in the exclusion. I'm glad that if this tank was outside and ruptured and heating oil came out into the soil that this would be considered a pollutant. Not under the Epstein decision. It wouldn't be. Under the Epstein decision, which followed the Madison guidelines, the soil going into the soil in round water would not be a pollutant? Under the Epstein decision which found that heating oil was not a pollutant as a matter of law, the answer to that question would be no. Under Judge Pratt's decision, the way she ordered her decision, the answer would be yes. She said that you win because this was not released into the environment. Correct. Correct. Yes. So under her rationale, if the heating oil in this case, let's say it was a, I don't know, how many gallons do you know what we were talking about here? I really don't know. I don't know that that was a factually determined. Let's say 20 gallons. Okay. Under her analysis. Correct me if I'm wrong, but as I understand her analysis. If 10 gallons of the 20 gallons spill one under the floor and 10 gallons seeped under the footer and float into the yard. The part that went into the yard would be deemed a pollutant because it was quote released into the environment. That's one reading of her opinion. The way I, the right reading or the wrong reading. Well, I actually just feel free to tell me it's the wrong reading. I actually disagree with that because the way I read her opinion in order for it to be polluted, it would have to be released into the environment and then seeped into the house, not the other way around. If they had spilled the oil into the ground and then it seeped into the basement under her analysis, then it would be a pollutant. That was my hypothetical. The oil seeped into the environment into the soil and down into the groundwater. You said that's not a pollutant. I said under her, under her opinion it is. My hypothetical you said it wasn't a pollutant. Under what I said was that under the EPSIM decision it's not because under the EPSIM decision it said that it was that heating oil is not a pollutant as a matter of law. I'm going to figure out when is it for heating oil a pollutant and when is it not? According to you, it's never a pollutant. Our position is and it's consistent with the EPSIM decision that because the United States government, nor the Commonwealth of Pennsylvania, consider petroleum based heating oils to be pollutants, that it is not a pollutant as a matter of law. Why would all do respect to our employer who pays our wages? Why does it matter what the United States government says? This is a contract between private parties. Don't you have a right to determine by definition the contract what is a pollutant or what isn't? Regardless of what the EPA says. Because under the Madison decision, the Pennsylvania Supreme Court decision it said you have to look to those sorts of statutes to determine whether something is a pollutant or not a pollutant when it's not expressly included in the policy. They wrote that Madison says you have to look at whether the substance is found in a place where it belongs. Isn't that what Madison said? Maybe it's saying two contradictory things at the same time. I don't think it's contradictory but I think it clearly indicates that if you have to understand that looking at these policies is a whole not even necessarily looking at the pollution exclusion. In the Commonwealth of Pennsylvania, in general, there is a presumption in favor of coverage. There's also in this type of policy which I've illustrated in the brief, is an all-risk policy which places the burden on the insurance company to show that it's not covered under the policy as opposed to me having the burden to show that it is covered under the policy. That's a black letter law we already know. But the help us sort through the tough issue. With that as a background, what Madison is saying is that because the insurance company has the ability to write the policy, it has the ability to put in specifically everything that it considers to be a pollutant that would be excluded under the policy. It's not required to list 19 things because then inevitably in, right, or 632 things because then the 633rd thing they didn't think of. I mean, they're not required to do that. I agree with that. However, what Madison has said is if they're not going to do that, and that's precisely why they don't do that is because the 633rd thing will pop up, is that where Madison says that if it is not expressly excluded under the policy or specifically defined, then you're going to look for other ways of determining whether to pollute under the policy. So the pencil being supreme court has issued a mandate in Madison which says you have to look to other sources to define what is a pollute, what is a pollute, no, what's not a pollute. So since the policy doesn't define that home heating oil is a pollute and under the policy, Madison says you have to go to other sources. Well, the Madison court, the Madison court actually cited statutes, which was from the Pennsylvania, from, from come with Pennsylvania and, and the United States, one of them was circular. They were both cited in the brief at the statutes that they did, which is exactly the analysis that the Epstein court did when it made a determination at home heating oil was not. You have seen no distinction at all between heating oil, a rupture tank, and spillage of heating oil inside home, and a tank that ruptures by a stream and the oil goes into that stream. You see no distinction. Are we asking on a personal level or are we legal, legal point on a legal level I will tell you that there are cases across the country that don't find a distinction. However, the one case that was decided on this issue, on this express issue, subsequent to Madison using the Madison analysis, which is, which is the Epstein case. But that's a district court unreported decision. That's not presidential. When you kept saying Epstein, I kept looking for, it's just, it's just one court and it's not presidential. It is, it is a district court case. It is not, it is not binding on this court. I understand that. But it is the only decision subsequent to Madison that has expressly ruled on the issue of the top of my head. I do not recall your own. It's the only case in the Commonwealth of Pennsylvania that has expressly addressed the issue of whether home heating oil is a pollutant and it found as a matter of what it was not. It was not a pollutant as a matter of law. Yes, but I guess I'm still struggling with this all or nothing. Isn't that just an abstract? I guess what I'm suggesting to you is it seems to me to be an abstract definition that defies common sense because when I'm filling up my gas tank at the station and I put the gas in the tank, it's not a pollutant. But when I somehow spill the gas all over the soil, it is a pollutant. I mean, how can you just say gasoline is, is a pollutant is not, how can you say home heating oil is or is not a pollutant depends where it's found and what function it's serving. But it's not me who's saying it was the Epstein court. Well, actually, I'm just a doctor, I'm just a doctor in the logic. But we need to decide whether, I'm, I, I, to say Epstein said it doesn't persuade me that Epstein got it right. But go ahead and think I'm giving you some examples why suggesting why Epstein may have the wrong explained me why I'm. Isn't it really what Judge Pratter said in a way? But using Judge Pratter's logic that would be along with your, with your logic, Judge Hardman, in the fact that. Based, she's saying it would have to be released into the environment before it becomes a pollute, right? Which goes directly to the first question. And what's, what's odd about that? Yes. Is this a homeowner's policy protecting a home? Yes. So Judge Pratter's analysis suggests that if it gets sent out of my home, then the pollution exclusion kicks in for homeowner's policy. But if it's polluting inside my home, the pollution exclusion doesn't kick it. And that's the, that's the, that seems to be upside down. The distinction I would draw aside from what I've said earlier was that as I read Judge Pratter's decision, if the home heating oil had been released into the ground and then seeped into the home, that it would be based upon the pollution exclusion would be applicable under your example that the home heating oil was released into the home and then. And then left the home and into the environment. I don't think, I think that the pollution exclusion would apply for the purposes of cleaning up the ground outside the house, but it may not apply to the damages that are inside the house because those damages were done by the release inside the home. I don't know why not. Yet. I guess in a homeowner, does the typical homeowner's policy cover, it covers the house and the curtain, the yard, right? The real estate, the house, the only the edifice. Correct. No, no, wait. Oh, I'm sorry. I'm sorry. I didn't know. I didn't get, I'm sorry. I didn't hear the question. Could you, does this policy, I guess, forget what the typical one says. Is this policy cover the edifice only or the edifice in the yard, the real estate? It's an interesting question because it clearly, you know, it clearly, it clearly covers the house. There are times when it is going to cover certain things on the property outside the house, and it will be times when it's not. For example, if there is a broken drain pipe that is outside the actual structure, it may cover the access to repair a broken drain pipe. But if there is a, but if there was a spillage of oil onto the ground, it very well might not. Does it cover a child's playset outside? That may depend on whether, are we talking about from, I'm just talking about what an ordinary homeowners policy covers. Orres, I mean, I think that's what it, I would argue. You don't represent the insurance company, we were just Mr Sullivan. I would certainly argue unless that I found that there was express language in the policy to say that, that playgrounds, you know, a playset is not covered under the policy. There are policies I've seen that will exclude such things. It may depend on whether it's permanently attached to the ground. It may depend, it's going to depend on the express facts of the, the specific facts of the case, and it's going to depend on the specific language that's contained in the policy. So it's impossible to answer that question in the abstract. Isn't there though something in Congress about the district court's notion that the pollution exclusion kicks in if it's released outside the edifice, but if the, if the contaminant room, and she called it a contaminant, there's no doubt this contaminated the basement. Isn't there something in Congress about saying that when it's released outside the edifice, the exclusion kicks in, but as long as it stays within the edifice, no, the exclusion doesn't kick in it. How do you explain that distinction? I'm not sure. Actually, that helps you 100%. Under Judge Pratter's decision, that's exactly what Judge Pratter decided. But what's... But even if it stayed inside... No, I know it stayed inside of the edifice. But if it had released the edifice, well, unless it had released the edifice... There's not a few. There's not a few. But if it had released the edifice, then I gather from Mr. Sullivan that it would... Well, he thinks all the things excluded. But... If it's not... I guess what I'm suggesting is... If it's excluded. If it gets away from where it's supposed to be, what differences it make where it travels. That's it. If it's not... We're getting into metaphysics here on this $12,000 or $18,000. I know it's important to your clients, but it is. If it's in the heating oil, these trucks come up and they've heating oil. And they're hoses, right? And they transfer it from the truck into the house. If it's in the truck, it's not a pollutant. If it's in the hose, it's not a pollutant. If it's in the tank, it's not a pollutant. Once it leaves any one of those three places where it's supposed to be, why does it not then become a pollutant and remain a pollutant? Because it ain't where it's supposed to be. And it's causing damage. Because the question is dependent upon what your definition of what a pollutant is. If you look at the definition of a pollutant solely in the context of something is in the place that it's not supposed to be, then I don't have an answer for you other than to say that you're right. However, Judge Pratter looked at it and this was the entire problem that was presented in my opinion based upon the arguments that were made by the defendant. They were putting the card before the horse. They were saying that a pollutant, you can't read that requirement into the policy. Judge Pratter, as the very first question you're on or asked, Mr. Sullivan, it was a definitional thing. Judge Pratter, this is the way she decided to define what a pollutant is. And when she decided to define what a pollutant is, she said in order for it to be a pollutant, it has to be released into the environment. And if you look at it from that perspective, then it is not a pollutant under the facts of this particular case. She actually said it's ambiguous. I'm sorry? She said the exclusion provision was ambiguous and that tip didn't favor of your client. I thought you would. I mean, I thought Judge Hardeman's questions were right up where you would want us to hold and you didn't. You have to understand that I'm coming here under two. You just have to, what you want to do, what you should want to do is just uphold Judge Pratter's verdict and opinion, period. And I don't know why you would knock that part of her opinion that doesn't hurt you. Because the fact is that it does hurt in short. Yeah, but you're not representing the insureds. Is that right or do you represent the insureds? I represent the association of insureds. No, I represent the Whitmore's in this case. And in my brief, as we've indicated, we want you to uphold the decision. However, at the same time, we feel that the home heating oil is not a pollutant at all. If the court finds that under the circumstances that Judge Pratter indicated it is a pollutant, then we would simply ask you to affirm her decision. We just don't think her decision went far enough, in all honesty. It's nature, it's not a pollutant, but it depends what happens. It's Judge Hardeman's point. It depends if it's where it's not supposed to be, it just might be. If it's in the soil and it's seeping to the groundwater, it's a pollutant. If I can just adjust one last point, I rise. You're way over your time. Okay, thank you. Thank you. Mr. Sullivan, you reserved two, three minutes. I reserved five minutes, Your Honor. Five minutes, but you took most of that before. I'm happy to be shorter if you would prefer your honor. Let me respond to a couple of issues that were raised. First, the policy that was issued, the coverage that we're talking about, is coverage only for the home. The policy says that it will describe the types of property that are covered. It identifies the residents where the Whitmore's live. It specifically says that land isn't covered. So a solution exclusion that kicks in once it hits the land is totally silly in a policy like this then. Exactly, because typically exclusions take away coverage that would otherwise be provided. I don't even need to get to the pollution exclusion if I've got contamination. I covered. Exactly. The other issue that was raised and was this issue of, you know, is something a pollutant in the abstract. And the answer is, I think exactly what Judge Harderman had said, that whether something is a pollutant depends on where it is. By way of example, in the Wagner case, which was a Pennsylvania Superior Court case, the court specifically looked at the argument that was made by the policy holder in that case because the substance at issue was gasoline. And the policy holder said gasoline is a useful substance. Well, you would say then that the heating oil is a pollutant here because it contaminated the floor of the plaintiffs' residence. That's exactly what I would say. But other things can contaminate the floor of the plaintiffs' residence. Milk. Milk. Any number of things. Well, you're on her. So, you see, this is where we get back to the district court's decision. You really have an ambiguous issue here. And she decided because of that, her favorite of the plaintiffs. But you're on her. You could have had a provision that excluded heating oil in your contract. We could have, but you're on her if we had had an exclusion that set out every toxic substance, the toxic substance registry is thousands of substances. That's what I'm saying. And if we were talking about milk, the reason it wouldn't qualify as a pollutant because, first of all, no one in the common parlance would say that if you had a spill of milk in your kitchen, that your kitchen was contaminated. Take his example. And the answer in terms of paint is that no one in the common parlance would refer to paint as a substance that had polluted if you basically had. But didn't you answer by saying it depends on what was in the paint? Well, and I may have answered it in artfully and I'll try to fix that. I thought that's what you said. It depends on what the nature of the claim is. By way of example. Did I mention my house claim? In a damage to the house claim, then I would say that you wouldn't have a situation in which the pollution exclusion would apply. But the majesty construction case was not that much different from paint. It was a floor coating that gave off a fume that hurt the plaintiff. Because he fell. Well, he was overcome by the fumes first. So I really do look at it and say it really does depend on the circumstances. The problem that we have with the test that was annunciated by Judge Pratter is. If this oil spill had occurred outside. Judge Pratter would have said pollution exclusion applies. I don't think we would have needed it because we wouldn't have coverage for land. But if it happens inside, pollution exclusion doesn't apply. Even though oil is identified as a pollutant. You said it depends on the circumstances. Is that what she's doing? But the problem is I think that the court cannot say that. The Judge Pratter was wrong in saying that because the Madison Construction Court specifically said. We're not going to read an into the environment requirement into policy language that doesn't say it. It's improper to do it. And what the Judge did is by incorporating a statute that said. Talked about pollution of the water and said, well. Therefore, I'm going to read an into the environment requirement into it. She did it through the back door, but she still ended up with her. The rationale for her decision was because the heating oil wasn't released into the environment. The exclusion does not apply. And Madison Construction says you can't do that. But even if she got that wrong, we might affirm her by finding that she shouldn't have said this was a contaminant. Your Honor, and it's certainly possible that the court could look at the definition of contaminant. But I think under a dictionary definition, this was contaminated. But it doesn't have to be polluted if it's a contaminant, though. They're not perfectly co-equal. Polluting is defined in the insurance contract as a contaminant or an irritant. So I do think that they... Then you give the wrong answer for the paint hypothetical. Because if the definition of contaminant is something that makes it impure, when I fill paint all over my kitchen floor, I've made my kitchen floor impure. It's the contaminant, right? And your Honor, I... Same with syrup or milk. I mean, my gosh, I haven't had this pleasure of smelling weak old milk. But I would imagine if... I don't put that on bias. I mean, if you're on vacation and you, you know, for the weekend and you have a house sitter watching your dog and your dog gets into your fridge and spills everything you come home, I mean, that's going to render your kitchen impure, right? Those are... It would render your... Those are... Those are... Those are foodstuffs that are all over the floor. And you may be in a situation in which a situation like that, you would be stretching the pollution exclusion too far. But I do think that when you're in a situation in which you have something that has contaminated the basement under addictionary definition and does qualify as a pollutant under environmental statutes. And is treated as a pollutant. And I do think that it's important that you have people come in that environmental consultants come in to look at this... What this problem is. And the only thing that has happened here... And the problem for vacation, I clean up the mess in the floor. I don't call it hazmat or, you know, some expert to come in and quarantine the place that's significant. Well, I think it's significant because the exclusion has to be construed in the context of the particular set of facts. Mr. Sullivan, your red light is on. I apologize for going over it. That's okay. Thank you for your time