Maxine Furs, Inc. v. Auto-Owners Ins. Co.,

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 31, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13547
Non-Argument Calendar
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D.C. Docket No. 2:09-cv-01524-RDP
MAXINE FURS, INC.,
llllllllllllllllllll lPlaintiff - Appellant,
versus
AUTO-OWNERS INSURANCE COMPANY,
lllllllllllllllllll llDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 31, 2011)
Before WILSON, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Maxine Furs (Maxine) is a fur shop, which happens to be next door to an
Indian restaurant. Because Maxine shared air-conditioning ducts with its

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neighbor, Maxine’s furs soon began to smell like curry. Maxine had the affected
furs cleaned and then made a claim with its insurer, Auto-Owners Insurance
Company (Auto-Owners). Auto-Owners denied coverage based on the absolute-
pollution-exclusion clause in Maxine’s policy. Maxine sued Auto-Owners for
breach of contract. The district court concluded that coverage was excluded and
rendered summary judgment for Auto-Owners. Maxine appeals.
I.
We review an order granting summary judgment de novo. Fanin v. U.S.
Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).
Maxine’s policy with Auto-Owners excludes from coverage any damage or
loss caused by “discharge, dispersal, seepage, migration, release or escape of
‘pollutants.’” The policy defines pollutant as: “any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
chemicals and waste.” The question we must answer is whether curry aroma is a
pollutant.
Under Alabama law, a contract for insurance is governed by the general1
rules of contracts. Certain Underwriters at Lloyd’s London v. Kirkland, 2011 WL
Because this is a diversity case, we apply state substantive law, which, in this case, is1
the law of Alabama. Employers Mut. Cas. Co. v. Mallard, 309 F.3d 1305, 1307 (11th Cir. 2002).
2

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29851 at * 3 (Ala., Jan. 7, 2011) (quoting Twin City Fire Ins. Co. v. Alfa Mut. Ins.
Co., 817 So.2d 687, 691–92 (Ala. 2001)). When a policy is clear and
unambiguous, it will be enforced as written. Id. When the parties disagree on
whether the language in a policy is ambiguous, “a court should construe [the]
language according to the meaning a person of ordinary intelligence would
reasonably give it.” Id. A term in a contract is only ambiguous if it is open to
different but reasonable interpretations by people of ordinary intelligence in the
context of the policy. State Farm Fire & Cas. Co. v. Wonderful Counselor
Apostolic Faith Church, 12 So.3d 662, 665 (Ala. 2008). And if it is ambiguous,
the ambiguity is to be resolved in favor of the insured. Kirkland, 2011 WL 29851
at * 3. We turn now to the language of the policy to determine whether it is
ambiguous.
Although Maxine’s policy excludes from coverage damage caused by
pollutants, the parties disagree that curry aroma is a pollutant. Thus, we look to
the policy’s definition of pollutant to determine whether a person of ordinary
intelligence would reasonably conclude that curry aroma is a “solid, liquid,
gaseous or thermal irritant or contaminant.”
We do not think a person of ordinary intelligence could reasonably conclude
that curry aroma is not a contaminant under these circumstances. A contaminant is
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something that “soil[s], stain[s], corrupt[s], or infect[s] by contact or association.”
Webster’s Third New International Dictionary 491 (1986). Indeed, what
happened here is that the curry aroma soiled Maxine’s furs. Otherwise, they
would not have needed cleaning. We do not think that a reasonable person could
conclude otherwise. Accordingly, we conclude that curry aroma is a pollutant
under the policy.
Last, Maxine argues that even if the curry aroma is a pollutant, the policy
should still cover the damage because the damage was not caused by any of the
means specified in the exclusionary clause. We disagree. Although Maxine
contends that the aroma wafted, we do not see how that is different than the aroma
migrating, seeping, or escaping into Maxine’s and contaminating the furs.
Because we conclude that the curry aroma is a pollutant that damaged
Maxine’s furs in a manner the policy excluded from coverage, we affirm the
judgment of the district court.
AFFIRMED.
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