Summary
In Evanston Ins. Co. v. Germano, 514 F. App'x 362 (4th Cir. 2013), the Fourth Circuit considered a pollution exclusion in commercial general liability policies for any damage stemming from "pollutants," where the definition of the term "pollutants" was nearly identical to the one contained in the Policy in this case.
Summary of this case from Prestige Props., Inc. v. Nat'l Builders & Contractors Ins. Co.Opinion
No. 11-2082
03-20-2013
EVANSTON INSURANCE COMPANY, Plaintiff - Appellee, v. MICHELLE GERMANO; DENNIS JACKSON; SHARON JACKSON; JASON DUNAWAY; LISA DUNAWAY, individually and on behalf of all others similarly situated, Defendants - Appellants, and HARBOR WALK DEVELOPMENT, LLC; THE PORTER-BLAINE CORP.; GENESIS GROUP, INC.; WERMERS DEVELOPMENT, INC.; CLARK-WHITEHILL ENTERPRISES, INC.; VENTURE SUPPLY, INC.; TOBINTRADING, INC.; TRADERSCOVE CORP., d/b/a The Henin Group; PREMIER INTERNATIONAL REALTY, INC., d/b/a The Henin Group; INTERNATIONAL PROPERTY INVESTMENTS OF CENTRAL FLORIDA, INC., d/b/a Henin International Services; HIGGERSON-BUCHANAN, INC.; M&M CONTRACTING; P&P SKILLED CONTRACTORS; WORK COMPANY, DRYWALL & PLASTER; JEROME HENIN, individually; DAVID DANIELS, individually, Defendants. NATIONAL ASSOCIATION OF HOME BUILDERS, Amicus Supporting Appellants.
Michael Imprevento, BREIT DRESCHER IMPREVENTO & WALKER, P.C., Virginia Beach, Virginia, for Appellants. R. Steven Rawls, Rebecca C. Appelbaum, BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP, Tampa, Florida; Richard A. Saunders, FURNISS DAVIS RASHKIND AND SAUNDERS, P.C., Norfolk, Virginia, for Appellee. David S. Jaffe, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C., for Amicus Supporting Appellants.
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:10-cv-00312-RAJ-TEM) Before SHEDD, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael Imprevento, BREIT DRESCHER IMPREVENTO & WALKER, P.C., Virginia Beach, Virginia, for Appellants. R. Steven Rawls, Rebecca C. Appelbaum, BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP, Tampa, Florida; Richard A. Saunders, FURNISS DAVIS RASHKIND AND SAUNDERS, P.C., Norfolk, Virginia, for Appellee. David S. Jaffe, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C., for Amicus Supporting Appellants. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Appellants appeal the district court's order granting summary judgment in favor of Evanston Insurance Company ("Evanston") and declaring that they are not entitled to coverage under the applicable commercial general liability ("CGL") insurance policies for alleged drywall-related damages to their homes and persons. In pertinent part, the CGL policies excluded coverage for any damage stemming from "pollutants," which were defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, electromagnetic fields and waste." The district court concluded that, under Virginia law, the sulfuric gases emanating from the Chinese-manufactured drywall were "pollutants" under the language of the policies and therefore declared that Appellants were not entitled to recover any damages stemming therefrom. Appellants filed this appeal, challenging the district court's interpretation of the policies.
While the appeal was pending in this Court, the Supreme Court of Virginia, in response to questions certified to it by this court in another appeal, decided that sulfuric gas released by defective drywall was a "pollutant" under the terms of an identically phrased insurance policy also controlled by Virginia law. TravCo Ins. Co. v. Ward, 736 S.E.2d 321, 328-30 (Va. 2012). Both Evanston and Appellants agree, and we concur, that the decision in TravCo warrants affirmance of the district court's judgment in this appeal. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process.
AFFIRMED