South Dakota State Cement Plant Commission v. Wausau Underwriters Insurance Co.8/23/2000
] A review of the complaint in this case reveals a common, basic underlying theory to all of the claims against SDCP, the emission of contaminants/cement dust. Does emission of cement dust fall within the confines of the pollution exclusion? We submit that it does. Under the "pollution exclusion" in the policy, "pollutants" are defined as "any solid, liquid, gaseous or thermal irritant or contaminant." The use of a string of definitions, as proposed by Wausau, is unnecessary in resolving this issue. Instead, a careful reading of the complaint in correlation with the pollution exclusion clause shows that the claims against SDCP were based upon allegations of "contamination," thereby clearly falling under the pollution exclusion and negating Wausau's duty to defend. A determination of whether cement dust actually constitutes a "pollutant" or "contaminant" is unnecessary; our obligation is to review the complaint and analyze whether "if any claim, if true, falls within the policy coverage."
[ ] It is quite obvious that the parties in this case did not negotiate for coverage for damages caused by emission or contamination. It is not the function of this Court to rewrite a contract. See Kroupa v. Kroupa, 1998 SD 4, , 574 NW2d 208, 217 (quoting Hisgen v. Hisgen, 1996 SD 122, , 554 NW2d 494, 499) (Sabers, J., dissenting) (noting that "' t is not a function of the court to rewrite the parties' agreements'"). See also Schlosser v. Norwest Bank South Dakota, 506 NW2d 416, 421 (SD 1993) (quoting Raben v. Schlottman, 77 SD 184, 190-91, 88 NW2d 205, 208 (1958)) (Wuest, J., concurring in part & dissenting in part) (stating that "'a court cannot make a contract for the parties that they did not make for themselves'") and Amdahl v. Lowe, 471 NW2d 770, 777 (SD 1991) (concluding that "we cannot create a contract for the parties which they did not intend"). Because the causes of action in the complaint are based upon alleged "contamination," assuming that the allegations that SDCP caused contamination are true, no coverage would apply and Wausau would not have a duty to defend because the causes of action in the complaint all clearly fall within the definition of pollution in the pollution exclusion clause. Therefore, the trial court erred in granting summary judgment in favor of SDCP on the issue of duty to defend. Further, the trial court erred in denying Wausau's motion for summary judgment on the duty to defend issue.
[ ] 2. The trial court improperly concluded that Wausau was liable for the underlying settlement as a consequence of its alleged breach of its duty to defend.
[ ] Based upon our disposition of issue one, we also reverse the trial court's settlement award to SDCP, which was based upon Wausau's breach of its duty to defend.
[ ] Based upon our disposition of this issue, we need not address SDCP's notice of review issues regarding whether the exclusion specifically applies to "property damage" and "bodily injury," not "personal injury." Notably, SDCP in its brief to this Court, raised this issue for the first time in this case. It is this Court's well settled position that issues not advanced at trial cannot ordinarily be raised for the first time on appeal. See State v. Henjum, 1996 SD 7, , 542 NW2d 760, 763 (citations omitted). If a party fails to raise an issue, it is deemed waived. Mash, 488 NW2d at 648. Therefore, because SDCP never argued this theory below, it is deemed waived.
[ ] We reverse.
[ ] MILLER, Chief Justice, and ANDERSON, Lee D., Circuit Judge, concur.
[ ] SABERS, and GILBERTSON, Justices, dissent.
[ ] ANDERSON, Lee D., Circuit Judge, sitting for KONENKAMP, Justice, disqualified.
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