The Estate of Josiah Wheeler pursuant to the assignment of rights of insured Deborah Overly and Terry Summers et al v. Garrison Property and Casualty Insurance Companya subsidiary of USAA INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
The ESTATE OF JOSIAH WHEELER,
pursuant to the assignment of rights of
insureds Deborah Overly and Terry
Summers, and KEITH WHEELER
and RHETTA WHEELER, individually
and as representatives of the Estate
of Josiah Wheeler,
Plaintiffs,
v.
GARRISON PROPERTY AND CASUALTY
INSURANCE COMPANY, a subsidiary of
USAA Insurance Company,
Defendant.
Case No. 4:20-cv-00041-SLG
ORDER ON CROSS-MOTIONS FOR DECLARATORY JUDGMENT
This matter comes before the Court on Plaintiffs’ Cross Motion for
Declaratory Relief on Coverage at Docket 26 and Defendant’s Cross Motion for
Declaratory Judgment at Docket 32. Because the Federal Rules of Civil Procedure
do not provide for “motions for declaratory judgment,” the Court construes the
parties’ motions to be motions for summary judgment.1
1 See Kam-Ko Bio-Pharm Trading Co.–Australasia v. Mayne Pharma (USA) Inc., 560 F.3d 935,
943 (9th Cir. 2009) (“[A] party may not make a motion for declaratory relief, but rather, the party
must bring an action for a declaratory judgment. . . . The only way [a] motion [for declaratory
judgment] can be construed as being consistent with the Federal Rules is to construe it as a
motion for summary judgment on an action for a declaratory judgment.” (quoting Int’l Bhd. of
Teamsters v. E. Conf. of Teamsters, 160 F.R.D. 452, 456 (S.D.N.Y. 1995))).
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For the reasons discussed herein, the Court will deny Plaintiffs’ motion and
grant Defendant’s motion.
BACKGROUND
The underlying facts are not generally in dispute, and are as follows:
Plaintiffs Keith and Rhetta Wheeler have filed this suit both individually and on
behalf of the estate of their son, Josiah Wheeler. Josiah was a 17-year-old boy
who died on or about January 4, 2019, while using the bathtub at a cabin in Tok,
Alaska. An autopsy revealed that Josiah died from acute carbon monoxide
poisoning. The deputy fire marshal who investigated Josiah’s death determined
that the cabin’s water heater was the source of the fatal carbon monoxide. During
his investigation, the deputy fire marshal discovered that the water heater had
been installed in the same small bathroom as the bathtub, and that its flue
connection was not connected to any ducting or other venting system. This
contravened the water heater’s instruction manual, which cautioned not to install it
in small, poorly ventilated rooms such as bathrooms and bedrooms, and specified
that it should be connected to a venting system to safely exhaust carbon monoxide
and other flue gases.2
Josiah had been renting the cabin from its owners, Deborah Overly and Terry
Summers. Overly and Summers submitted a homeowners’ insurance claim to
2 Docket 9-2 at 3–7 (State Trooper Incident Report & Supplementary Reports).
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Defendant Garrison Property and Casualty Insurance Company (“Garrison”),
through whom they had a homeowners’ general liability policy covering the cabin.3
Relevant here, the policy contained a pollution exclusion clause, which provided
that the policy’s personal liability coverage did not apply to any bodily injury
“[a]rising out of the . . . discharge, dispersal, release, escape, seepage or migration
of ‘pollutants’ however caused and whenever occurring.”4 The policy defined
“pollutants” to be “any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”5
Deeming carbon monoxide to be a “pollutant” for the purposes of the policy,
Garrison denied coverage.6
In August 2020, Overly and Summers signed a “Confession of Judgment”
admitting that their negligence caused Josiah’s death and confessing judgment to
the Wheelers in the total amount of $1,680,000 in damages: $1,400,000 for
Josiah’s wrongful death, plus $140,000 to each parent for loss of consortium.7 In
3 Plaintiffs allege that Garrison is a subsidiary of USAA Insurance Company and include it as
such in their case caption. Garrison denies this. Docket 55 at 2, ¶ 3 (Answer).
4 Docket 26-13 at 19 (Ex. 10); Docket 26-14 at 1 (Ex. 10).
5 Docket 26-12 at 12 (Ex. 10).
6 Docket 1-1 at 2–3 (Denial of Coverage Letter).
7 Docket 1-2 at 1–2 (Confession of J.).
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a separate document, Overly and Summers also assigned to Plaintiffs their rights
to pursue coverage claims against Garrison.8
On December 4, 2020, Plaintiffs initiated this suit against Garrison. They
seek a declaratory judgment that Josiah’s death was covered under the policy and
an award of “appropriate damages.”9 Plaintiffs filed proof of service of the
complaint and summons on February 3, 2021.10 Garrison did not initially appear,
and the Clerk of Court entered a default.11 Plaintiffs then moved for a default
judgment,12 which the Court granted on May 4, 2021.13 On September 28, 2021,
Garrison appeared and moved to set aside the default judgment.14 The Court
granted Garrison’s motion and set aside the default judgment on February 1,
2022.15
In their opposition to Garrison’s motion to set aside the default judgment,
Plaintiffs also included a “cross motion for declaratory order” seeking a ruling that
8 Docket 1-3 at 1 (Assignment of Rights).
9 Docket 1 at 4, ¶ 12 (Compl.).
10 Docket 6 (Certificate of Service).
11 Docket 7 (Mot. for Entry of Default); Docket 8 (Entry of Default).
12 Docket 9 (Mot. for Default J.).
13 Docket 10 (Default J.).
14 Docket 14 (Notice of Appearance); Docket 15 (Mot. to Set Aside Default).
15 Docket 50 (Minute Entry).
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Overly and Summers’s policy covered Wheeler’s death.16 Garrison opposed
Plaintiffs’ motion and filed its own “cross motion for declaratory judgment.”17 The
motions have been fully briefed. At Plaintiffs’ request, the Court heard oral
argument on February 1, 2022.18
LEGAL STANDARDS
A. Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” In reviewing cross-
motions for summary judgment, a court “review[s] each separately, giving the non-
movant for each motion the benefit of all reasonable inferences.”19
16 Docket 26 at 25–39. Plaintiffs’ inclusion of the motion in their opposition memorandum
contravened Local Civil Rule 7.1(e), which requires all motions to be filed individually unless a
specific rule provides otherwise.
17 Docket 32.
18 Docket 50. At oral argument, the Court stated that Garrison had “unclean hands” because it
failed to register with the Alaska Division of Corporations. But as Garrison subsequently
correctly pointed out, Docket 51 at 1–2, Alaska’s insurance statutes exempt authorized out-of-
state insurers from the Alaska Corporations Code. AS 21.03.010(b). Because Garrison is an
authorized out-of-state insurer, see Alaska Div. of Ins., Online Insurer/Company Search,
https://sbs.naic.org/solar-external-lookup/lookup/company/summary/84275297?jurisdiction=AK
(last visited May 24, 2022), Garrison was not required to register with the Division of
Corporations. The Court hereby corrects the record to reflect that Garrison does not have
unclean hands in this matter.
19 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio-Ethical
Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
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B. Alaska Insurance Contract Interpretation
Under Alaska law,20 courts construe insurance contracts according to the
principle of “reasonable expectations.”21 This principle requires courts to construe
insurance contracts “so as to provide that coverage which a layperson would have
reasonably expected from a lay interpretation of the policy terms.”22 An insured’s
expectation of coverage must be “objectively reasonable.”23 To determine what an
insured party’s reasonable expectations were, Alaska law directs a court to “look[]
to (1) the language of the disputed provisions in the policy, (2) other provisions in
20 Because Plaintiffs’ claims arise under state law, the Court applies Alaska substantive law to
them. See, e.g., Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003) (“Under the
rule of [Erie Railroad], ‘federal courts sitting in diversity jurisdiction apply state substantive law
and federal procedural law.’” (citation omitted) (quoting Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 427 (1996))).
21 Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294 (Alaska 1994) (quoting State v.
Underwriters at Lloyds, London, 755 P.2d 396, 400 (Alaska 1988)).
22 Downing v. Country Life Ins. Co., 473 P.3d 699, 704 (Alaska 2020) (quoting U.S. Fire Ins. Co.
v. Colver, 600 P.2d 1, 3 (Alaska 1979)); see also Bering Strait, 873 P.2d at 1294 (defining the
reasonable expectations principle as the concept that “[t]he objectively reasonable expectations
of applicants and intended beneficiaries regarding the terms of insurance contracts will be
honored even though painstaking study of the policy provisions would have negated those
expectations” (quoting Lloyds, 755 P.2d at 400)).
23 West v. Umialik Ins. Co., 8 P.3d 1135, 1138 (Alaska 2000) (quoting Lloyds, 755 P.2d at 400);
see also State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1047 (Alaska 1996) (“[S]ince
most insureds develop an expectation that every loss will be covered, the reasonable
expectation doctrine ‘must be limited by something more than the fervent hope usually
engendered by loss.’” (quoting Millar v. State Farm Fire & Cas. Co., 804 P.2d 822, 826–27 (Ariz.
Ct. App. 1990))).
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the policy, (3) extrinsic evidence, and (4) case law interpreting similar provisions.”24
“[B]ecause of inequities in bargaining power, [Alaska law] construe[s] coverage
broadly and exclusions narrowly, in favor of insureds.”25 Alaska law will, however,
recognize a coverage restriction “if . . . plain language limits the coverage of [the]
policy.”26
Alaska law provides that if an insurance policy provision is ambiguous, a
court “must accept the interpretation that most favors the insured.”27 However, “the
mere fact that two parties to an insurance contract have different subjective
interpretations of that contract does not make it ambiguous. Rather, ambiguity
exists only when the contract, taken as a whole, is reasonably subject to differing
interpretations.”28
DISCUSSION
As the Court construes their motions,29 the parties have cross-moved for
summary judgment on the dispositive question of whether the pollution exclusion
24 Allstate Ins. Co. v. Teel, 100 P.3d 2, 4 (Alaska 2004).
25 Devine v. Great Divide Ins. Co., 350 P.3d 782, 786 (Alaska 2015) (first alteration in original)
(quoting Whittier Props., Inc. v. Alaska Nat’l Ins. Co., 185 P.3d 84, 88 (Alaska 2008)).
26 Whittier Props., 185 P.3d at 88.
27 Id. at 90.
28 Downing, 473 P.3d at 704 (footnote omitted) (internal quotation marks omitted) (quoting
Dugan v. Atlanta Cas. Cos., 113 P.3d 652, 655 (Alaska 2005)).
29 See supra note 1 and accompanying text.
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clause in Overly and Summers’ insurance policy excludes coverage for a death
caused by carbon monoxide in the cabin. There are no genuine disputes of
material fact regarding the circumstances of Josiah’s death or the applicable policy
language.30 The parties agree that the resolution of their dispute turns on the
interpretation of the policy,31 which is a question of law for the Court.32
Plaintiffs’ position is that the policy’s exclusion clause does not exclude
coverage for Josiah’s death. They assert that the exclusion clause, “by its own
terms, describes pollution as the unintentional escape of pollutants into the
environment from containers that were meant to keep the pollutants
sequestered.”33 Reasoning that a water heater is not a “container . . . meant to
keep [a] pollutant[] sequestered,” they assert that the water heater’s discharge of
carbon monoxide was not “pollution” as defined in the policy.34 Plaintiffs also assert
that the policy must be read to contain implied “building heating” and “hostile fire”
exceptions to the clause to avoid an overly broad interpretation that would
30 See Docket 1 at 3, ¶¶ 6, 9; Docket 55 at 2–3, ¶¶ 6, 9.
31 See Docket 32 at 22–23 (asserting that summary judgment in its favor would entitle Garrison
to dismissal of this case); Docket 58 at 2 (stating that Plaintiffs believe “[t]here should be no
issue as to whether or not the motions pending are dispositive of the case”).
32 Exxon Corp. v. State, 40 P.3d 786, 792 (Alaska 2001) (“Where . . . there is no conflict in
extrinsic evidence, the interpretation of [a] contract is a question of law.” (first alteration in
original) (quoting Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454 (Alaska 1998))).
33 Docket 26 at 27.
34 Docket 26 at 27–28.
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“consume the entire . . . policy.”35 Lastly, observing that no Alaska court has ever
considered whether pollution exclusion clauses cover carbon monoxide, Plaintiffs
point to decisions from Nevada and other jurisdictions holding the application of
such clauses to carbon monoxide to be ambiguous.36 They urge the Court to
conclude similarly and, following Alaska law, to resolve the ambiguity in their
favor.37
Garrison disagrees that the pollution exclusion clause is inapplicable,
although it agrees that whether pollution exclusion clauses cover carbon monoxide
is a matter of first impression under Alaska law. Garrison maintains, citing a recent
North Dakota Law Review article, that “[a] majority of courts” hold pollution
exclusion clauses “to bar coverage for personal injuries resulting from carbon
monoxide exposure.”38 Garrison maintains that the clause’s application to carbon
monoxide is not ambiguous. Garrison further asserts that the clause’s language,
the policy’s other provisions, and relevant extrinsic evidence all indicate that an
35 Docket 26 at 28–30.
36 See Docket 26 at 35–38 (citing; Stoney Run Co. v. Prudential–LMI Com. Ins. Co., 47 F.3d 34
(2d Cir. 1995); Reg’l Bank of Colo., N.A. v. St. Paul Fire & Marine Ins. Co., 35 F.3d 494 (10th
Cir. 1994); Century Sur. Co. v. Casino W., Inc., 329 P.3d 614 (Nev. 2014); Am. Nat’l Prop. &
Cas. Co. v. Wyatt, 400 S.W.3d 417 (Mo. Ct. App. 2013); Am. States Ins. Co. v. Koloms, 687
N.E.2d 72 (Ill. 1997); Thompson v. Temple, 580 So. 2d 1133 (La. Ct. App. 1991)).
37 Docket 26 at 25–39.
38 Docket 32 at 12 (citing Chad G. Marzen, The Pollution Exclusion and Carbon Monoxide,
93 N.D. L. Rev. 219 (2018)).
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insured in Plaintiffs’ position could not have reasonably expected the clause to
include coverage for bodily injury caused by carbon monoxide.39
C. Whether the Policy’s Pollution Exclusion Clause’s Application to Carbon
Monoxide is Ambiguous
Pollution exclusion clauses have been “repeatedly litigated” across the
United States, and most states’ interpretations of them “fall into ‘one of two broad
camps.’”40 “Some courts apply the exclusion literally because they find the terms
to be clear and unambiguous. Other courts have limited the exclusion to situations
involving traditional environmental pollution, either because they find the terms of
the exclusion to be ambiguous or because they find that the exclusion contradicts
policyholders’ reasonable expectations.”41 The Ninth Circuit has interpreted these
clauses by considering whether the state in question has an established position
on pollution exclusion clauses and, if not, considering whether there is an
indication as to which “camp” the state would likely fall into.42
The Alaska Supreme Court has only once had occasion to interpret a
pollution exclusion clause. In that case, Whittier Properties, Inc. v. Alaska National
39 Docket 32 at 5–23.
40 Century Sur. Co. v. Casino W., Inc., 677 F.3d 903, 908 (9th Cir. 2012) (quoting Apana v. TIG
Ins. Co., 574 F.3d 679, 682 (9th Cir. 2009)).
41 Apana, 574 F.3d at 682 (citations omitted).
42 See Century Sur., 677 F.3d at 907–09 (addressing carbon monoxide); Apana, 574 F.3d at
683–84 (addressing noxious chemical fumes); see also Colony Ins. Co. v. Victory Constr. LLC,
239 F. Supp. 3d 1279, 1283–89 (D. Or. 2017) (addressing carbon monoxide).
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Insurance Co.,43 an underground storage tank leaked roughly 50,000 gallons of
gasoline into the surrounding soil. The tank’s owner had a commercial general
liability insurance policy, but the policy contained a clause excluding property
damage arising out of the “discharge, dispersal, seepage, migration, release or
escape of pollutants.”44 The policy defined a “pollutant” as “any solid, liquid,
gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes,
acids, alkalis, chemicals and waste.”45 The Alaska Supreme Court held that the
exclusion clause unambiguously covered the gasoline leak. Noting that most
jurisdictions had concluded similarly, the court reasoned that “even though
gasoline . . . is a ‘product’ for purposes of other parts of the insurance policy, when
the gasoline escapes or reaches a location where it is no longer a useful product
it is fairly considered a pollutant.”46 In addition to holding that the clause was
unambiguous, the court also examined the policy’s other provisions and several
items of extrinsic evidence and concluded that the insured party could not have
reasonably expected the policy to cover the gasoline leak.47
43 185 P.3d 84 (Alaska 2008).
44 Id. at 89.
45 Id. at 87, 89–91.
46 Id. at 90–91 & n.29.
47 Id. at 91–92.
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In Whittier Properties, the Alaska Supreme Court only specifically addressed
coverage for a gasoline leak in a commercial general liability policy and did not
address pollution exclusion policies generally or carbon monoxide inhalation in
particular.48 And as the parties have observed, the Alaska Supreme Court has not
addressed when a pollution exclusion applies to carbon monoxide. But the court’s
decision in Whittier Properties suggests that it would likely interpret the exclusion
literally. In ruling that the clause at issue unambiguously applied to gasoline, the
Whittier Properties court approvingly cited an amicus curiae’s statement that
“[o]ver 100 appellate court cases and 36 jurisdictions have ruled that pollution
exclusions like the one at issue here unambiguously bar coverage for harms
caused by exposure to many different types of pollutants.”49 The court indicated
that it viewed this to be the “better-reasoned approach,”50 and it supported its view
with citations to cases involving inhalation of fumes, not just leaks of fuel.51 Thus,
48 See id. at 90–91 (“Although we have not, before now, had the opportunity to determine
whether the absolute pollution exclusion generally contained in commercial general liability
policies is ambiguous, numerous jurisdictions have addressed whether leaked gasoline is a
pollutant within the meaning of the policy exclusion. . . . We hold that there is no ambiguity
because . . . when the gasoline escapes . . . it is fairly considered a pollutant.”).
49 Id. at 90 n.29 (alteration in original).
50 Id. at 90.
51 Id. at 90 n.29 (citing Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d
1135 (Fla. 1998) and Quadrant Corp. v. Am. States Ins. Co., 110 P.3d 733 (Wash. 2005), in
which both courts concluded that pollution exclusion clauses unambiguously barred coverage
for injuries caused by fume inhalation).
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even though Alaska judicial policy “construe[s] coverage broadly and exclusions
narrowly, in favor of insureds,”52 the Court concludes that the Alaska Supreme
Court appears to have placed the state into the literal-interpretation “camp.”53 As
such, that court would likely interpret the pollution exclusion clause at issue here
to unambiguously apply to the death caused by the inhalation of the discharged
carbon monoxide, as that injury is plainly covered by the literal terms of the
pollution exclusion.
D. Whether Plaintiffs Reasonably Expected the Policy to Cover Carbon
Monoxide Poisoning
Having concluded that the clause is not ambiguous, the Court must next
determine whether Overly and Summers nonetheless could have had an
objectively reasonable expectation that their policy would cover bodily injury from
carbon monoxide.54 The pollution exclusion clause excludes coverage for bodily
injury “[a]rising out of the . . . discharge . . . of ‘pollutants,’” and it defines
52 Devine, 350 P.3d at 786 (quoting Whittier Props., 185 P.3d at 88).
53 In Apana, the Ninth Circuit interpreted the Alaska Supreme Court’s Whittier Properties
decision to indicate that Alaska falls into the “camp” of jurisdictions that interpret pollution
exclusion clauses literally. See 574 F.3d at 682 (“Some courts apply the [pollution] exclusion
literally because they find the terms to be clear and unambiguous. See [Whittier Properties], 185
P.3d 84, 89–92 (Alaska 2008); . . . .”).
54 See Whittier Props., 185 P.3d at 91 (citing Nelson v. Progressive Cas. Ins. Co., 162 P.3d
1228, 1235 (Alaska 2007)) (“We can construe an insurance policy under the reasonable
expectations doctrine without finding ambiguity in the policy; therefore, even though we have
determined that the exclusion is not ambiguous, [the insured] may still prevail under the
reasonable expectations doctrine.”).
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“pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”55
It would be objectively unreasonable for an insured to expect this language
to not exclude coverage for injuries caused by the inhalation of carbon monoxide.
First, an insured would expect that carbon monoxide would fall within the policy’s
definition of “pollutant.” Carbon monoxide is a gas,56 and, given its toxic effect
upon inhalation, it reasonably falls within the “fume” category of the “gaseous . . .
contaminant” definition in the policy.57 Although the policy does not define
“contaminant,” the common definition of a contaminant is a substance that
contaminates, which means “to make unfit for use by the introduction of
unwholesome or undesirable elements.”58 It would be objectively unreasonable
for Overly and Summers to expect this definition of “pollutant” not to encompass
carbon monoxide.
Moreover, the clause’s plain language also suggests that it applies to carbon
monoxide exhausted out of the water heater. The clause excludes liability for injury
caused by the “discharge, dispersal, release, escape, seepage or migration of
55 Docket 26-14 at 1; Docket 26-12 at 12.
56 Carbon monoxide, McGraw-Hill Dictionary of Scientific and Technical Terms 329 (6th ed.
2003).
57 See Fume, Merriam-Webster Dictionary (online ed. 2022) (“A smoke, vapor, or gas, especially
when irritating or offensive.”).
58 Contaminant & Contaminate, Merriam-Webster Dictionary (online ed. 2022).
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‘pollutants’ however caused and whenever occurring.”59 This is a broadly worded
definition that plainly encompasses exhaust from a water heater. Plaintiffs have
not identified any other policy provisions or extrinsic evidence that might alter this
interpretation of the policy’s language. Therefore, the Court concludes that the
only objectively reasonable expectation by an insured is that the policy excluded
coverage for bodily injury caused by carbon monoxide exhausted from the cabin’s
water heater.
In addition, the Court will not read any “hostile fire” or “building heating”
exceptions into the policy. Alaska contract law allows a court to “fill gaps” by
“supply[ing] an essential term that has been omitted from an otherwise sufficiently
defined contract” to “ensure fairness where the reasonable expectations of the
parties are clear.”60 But a court may only do so “[when], in fact, there is an essential
term or circumstance for which the parties failed to plan.”61 Alaska law “does not
permit a court ‘to rewrite a contract for the purpose of accomplishing that which, in
the court’s opinion, might appear proper’ or to ‘create substantive rights under the
guise of doing equity,’ except in limited circumstances.”62
59 Docket 26-14 at 1.
60 Renaissance Alaska, LLC v. Rutter & Wilbanks Corp., 263 P.3d 35, 40 (Alaska 2011) (quoting
Casey v. Semco Energy, Inc., 92 P.3d 379, 386 (Alaska 2004)).
61 Id. (quoting Casey, 92 P.3d at 386).
62 N. Pac. Processors, Inc. v. City & Borough of Yakutat, 113 P.3d 575, 586 (Alaska 2005)
(footnotes omitted) (internal quotation marks omitted) (quoting Lathrop Co. v. Lampert, 583 P.2d
789, 790 (Alaska 1978)). The “limited circumstances” in which Alaska law allows courts to
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In the case Plaintiffs cite to support “reading in” these “building heating” and
“hostile fire” exceptions, the insurance policy expressly contained the exceptions
on its face.63 But here, the policy contained no such exceptions. Plaintiffs have
provided no evidence that the “hostile fire” and/or “building heating” exceptions
were essential terms to the present policy that the parties inadvertently omitted.
Nor have Plaintiffs demonstrated that the insureds reasonably expected that the
policy would contain those exceptions. Accordingly, the Court concludes that there
were no relevant “gaps” in the policy to fill, and it will not read the “hostile fire” or
“building heating” exceptions into Overly and Summers’s policy.
No other parts of the policy, extrinsic evidence, or case law interpreting
similar provisions support an alternative reasonable expectation for an insured in
Overly and Summers’s position. Plaintiffs have not identified any other portions of
the policy or proffered any extrinsic evidence that might support their interpretation.
And, as described earlier, the Alaska Supreme Court’s Whittier Properties decision
supports Garrison’s interpretation of the policy, not Plaintiffs’.
reform contracts include “situations involving mistake of fact, fraud, mutuality of mistake, and
cases in which ‘a party executes a written instrument knowing the intention of the other party as
to the terms to be embodied therein, and knowing that the writing does not accurately express
that intention.’” Lathrop Co., 583 P.2d at 790 (footnotes omitted) (quoting Holiday Inns of Am.,
Inc. v. Peck, 520 P.2d 87, 94 (Alaska 1974)). None of those circumstances are alleged here.
63 Century Sur., 677 F.3d at 906 (“However, this [pollution exclusion clause] does not apply to:
(i) ‘Bodily injury’ if sustained within a building and caused by smoke, fumes, vapor or soot from
equipment used to heat that building; . . . (iii) ‘Bodily injury’ or ‘property damage’ arising out of
heat, smoke or fumes from a ‘hostile fire’ . . . .” (second and third alteration in original)).
Case 4:20-cv-00041-SLG Document 59 Filed 05/25/22 Page 16 of 17

Case No. 4:20-cv-00041-SLG, Est. of Wheeler, et al. v. Garrison Prop. & Cas. Ins. Co.
Decision and Order
Page 17 of 17
Under Alaska law, the pollution exclusion clause in this case unambiguously
applies to the carbon monoxide at issue here. Based on the plain language of the
clause, it would not have been objectively reasonable for the insureds to expect
that their policy would cover bodily injury caused by carbon monoxide exhausted
from the water heater. Consequently, Garrison is entitled to a summary judgment
ruling that Josiah Wheeler’s death was excluded from coverage under Overly and
Summers’ homeowners’ insurance policy.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion at Docket 26 is DENIED, and
Garrison’s motion at Docket 32 is GRANTED. The Clerk of Court is directed to
enter a final judgment accordingly.
IT IS SO ORDERED.
DATED this 25 day of May 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 4:20-cv-00041-SLG Document 59 Filed 05/25/22 Page 17 of 17