MacKinnon

Certified for Partial Publication. [*]

Plaintiffs John R. MacKinnon, Christel V. MacKinnon, and John and Christel MacKinnon Family Trust (collectively MacKinnon) appeal summary judgment entered in favor of defendant Truck Insurance Exchange (Track Insurance).

We consider whether a commercial comprehensive general liability (CGL) insurance policy exclusion, commonly referred to as a pollution exclusion, excludes coverage for a third party personal injury claim arising from spraying an apartment building with insecticide to exterminate yellow jackets.

MacKinnon contends the trial court erred in concluding as a matter of law that there was no coverage under the pollution exclusion. The trial court concluded that since a pesticide is a chemical, it was a pollutant within the policy definition of pollutant, and thus the pollution exclusion applied and excluded coverage. Mac-Kinnon argues that the exclusion is ambiguous and the exclusion does not apply because there was no environmental pollution.

MacKinnon also argues that there are factual issues as to whether Truck Insurance waived reliance on the pollution exclusion and whether it was estopped from asserting the…