Ngm Insurance Company, f/k/a National Grange Mutual Insurance Company v. NORMAN L. KURAS, JR., d/b/a Carolina’s Power Wash & Painting, f/k/a Carolina’s…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1082
NGM INSURANCE COMPANY, f/k/a National Grange Mutual
Insurance Company,
Plaintiff - Appellant,
v.
NORMAN L. KURAS, JR., d/b/a Carolina’s Power Wash &
Painting, f/k/a Carolina’s Painting & Pressure Washing;
CATHY CROMER; LISA GLOVER,
Defendants - Appellees,
and
CAROLINA’S POWER WASH & PAINTING, LLC,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cv-03378-DCN)
Argued: December 9, 2010 Decided: January 11, 2011
Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathan Joel Anderson, ANDERSON & REYNOLDS, LLC,
Charleston, South Carolina, for Appellant. Richard Hunt McDuff,

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SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina, for
Appellees. ON BRIEF: Eric M. Johnsen, ANDERSON & REYNOLDS, LLC,
Charleston, South Carolina, for Appellant. Jason D. Maertens,
SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina, for
Appellee Norman L. Kuras, Jr.; M. Brent McDonald, SMITH, BUNDY,
BYBEE & BARNETT, PC, Mt. Pleasant, South Carolina, for Appellees
Lisa Glover and Cathy Cromer.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
NGM Insurance Company (“NGM”) filed this diversity action
against Carolina’s Power Wash & Painting, LLC and its owner,
Norman Kuras (together, the “Insured”), as well as two persons
who had brought suit against the Insured, Cathy Cromer and Lisa
Glover. NGM seeks a declaratory judgment that a “contractors
policy” issued to the Insured does not cover tort claims that
Cromer and Glover have filed in state court. The district
granted summary judgment to the Insured, holding that the policy
applies and NGM must indemnify the Insured for any recovery by
Cromer and Glover. We affirm.
I.
For summary judgment purposes, the parties have stipulated
to the following facts.
On March 13, 2003, the Insured, a specialty contractor, had
renewed an existing contractors policy with NGM, effective until
March 13, 2004. The policy covered the Insured for “those sums
that the insured becomes legally obligated to pay” because of
bodily injury. Pursuant to an exclusion popularly known as the
“pollution exclusion,” coverage did not extend to bodily injury
“arising out of the actual, alleged, or threatened discharge,
dispersal, seepage, migration, release or escape of pollutants.”
The policy defined pollutants as “any solid, liquid, gaseous or

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thermal irritant or contaminant, including smoke, vapor, soot,
fumes, acids, alkalis, chemicals and waste. Waste includes
materials to be recycled, reconditioned, or reclaimed.” The
exclusion applied if the Insured was “performing operations” and
“in connection with such operations” the Insured brought
“pollutants . . . on or to the premises, site or location.”
On April 30, 2003, the Insured entered into a contract with
the United States Postal Service (the “USPS”) to paint the
interior of the main post office in Johns Island, South
Carolina. The Insured secured the contract only after showing
proof of liability insurance to the USPS.
To perform the contract, the Insured brought paints,
primers, and solvents intended for normal interior applications
to the Johns Island post office. As employees of the USPS at
the Johns Island post office, Cathy Cromer and Lisa Glover were
present during the Insured’s operations. “In the course of
preparation, application, and/or clean up,” the Insured
allegedly “exposed” Cromer and Glover to “fumes, vapor, dust,
and/or residue” of the paint products.
In March 2006, Cromer and Glover filed an action in South
Carolina state court against the Insured seeking compensation
for these injuries. They alleged in their complaint that
exposure to the paint products caused them chemically induced

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asthma, chronic obstructive pulmonary disease, reactive airways
dysfunction syndrome, and other personal injury.
II.
On October 3, 2008, NGM filed this diversity action seeking
a declaratory judgment that the policy’s pollution exclusion
bars coverage for the claims filed in Cromer and Glover’s state
court action. Properly applying South Carolina law, the
district court granted summary judgment to the Insured. The
court reasoned that, under these circumstances, the language of
the pollution exclusion was subject to more than one reasonable
interpretation and therefore ambiguous. Consistent with South
Carolina law, the district court considered, as evidence of the
exclusion’s ambiguity, the nationwide division of authority over
whether the pollution exclusion applies only to traditional
environmental damage. After finding the language of the
exclusion ambiguous, the district court invoked the South
Carolina rule requiring interpretation of an ambiguity in an
insurance contract against an insurer and, accordingly, granted
judgment to the Insured.
NGM filed a timely appeal. It argues that the exclusion is
unambiguous and therefore applies to bar coverage for the claims
filed in state court against the Insured. We review a grant of
summary judgment de novo, examining the facts in the light most

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favorable to the nonmoving party. See Anderson v. Russell, 247
F.3d 125, 129 (4th Cir. 2001).
III.
After having the benefit of oral argument and carefully
reviewing the briefs, record, and controlling legal authorities,
we conclude that the district court's analysis was correct.
Accordingly, we affirm on the basis of the district court's well
reasoned opinion. See NGM Ins. Co. v. Carolina’s Power Wash &
Painting, LLC, No. 2:08-cv-3378-DCN (D.S.C. Jan. 12, 2010).
AFFIRMED

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