Page:Scottsdale Insurance Co. v. Morrow Valley Land Co.pdf/15

 is a persistent, industrial polluter, which takes this within the contemplation of this court's distinction regarding the ambiguity in Minerva. While the Minervea court deemed the industrial-polluter argument a "plausible" one, such an argument does not resolve the holding that the language is ambiguous. By our own definition, language is ambiguous if it is susceptible to more than one reasonable interpretation. Elam, 346 Ark. at 297, 57 S.W.3d at 169. Our cases have made it clear that we have often deemed the definition of the term "pollutants" in pollution-exclusion clauses ambiguous. Here, the plaintiffs in the underlying lawsuit claimed that the defendants have caused noxious gases, smoke, dust, fumes, odors, and particulate to migrate off their property and then disseminated them into the surrounding environment. As in Minerva, it is unclear whether the claimed gases, smoke, dust, fumes, odors, and particulate from the CAFO would constitute "solid, liquid, gaseous or thermal irritant or contaminant" falling within the definition of "pollutants" contained in the insurance policy's pollution exclusion. We conclude that whether the dissemination of such gases, smoke, dust, fumes, odors, and particulate comes within the definition of "pollutants" is fairly susceptible to more than one reasonable interpretation; therefore, the pollution exclusion is ambiguous.

Then, we turn to the second part of the analysis under Minerva. We must determine whether the parties have submitted any extrinsic evidence in support of their interpretation of the clause. It is the province of the court to determine the construction and legal effect of contract, "except when the meaning of the language depends upon disputed extrinsic evidence." Smith, 340 Ark. at 340, 10 S.W.3d at 850 (quoting Southall v. Farm Bureau Mut.