79 F.3d 473 (5th Cir. 1996), 95-60175, American States Ins. Co. v. Nethery

Docket Nº:95-60175.
Citation:79 F.3d 473
Party Name:AMERICAN STATES INSURANCE COMPANY, Plaintiff-Appellant, v. Mary Jane NETHERY, et al., Defendants-Appellees.
Case Date:April 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 473

79 F.3d 473 (5th Cir. 1996)



Mary Jane NETHERY, et al., Defendants-Appellees.

No. 95-60175.

United States Court of Appeals, Fifth Circuit

April 9, 1996

Page 474

Dennis F. Cantrell, Robert G. Mork, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, Mark Christian Carlson, McCoy, Wilkins, Stephens & Tipton, Jackson, MS, for plaintiff-appellant.

Stephen Holace Morris, Mitchell, Voge, Beasley & Corban, Tupelo, MS, for Nethery.

George E. Dent, Soper, Dent and Logan, Tupelo, MS, for DAPA, Inc., Miles and Servicemaster Co.

Oscar Clark Carr, III, William R. Bradley, Jr., Glankler Brown, Memphis, TN, for Servicemaster Company, Limited Partnership, defendant-appellee.

Frank Jay Winston, Jr., Walter J. Andrews, Elizabeth A. Eastwood, Wiley, Rein & Fielding, Washington, DC, for United States Fidelity and Guaranty Company amicus curiae.

Appeal from the United States District Court for the Northern District of Mississippi.

Before POLITZ, Chief Judge, and JONES and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

American States Insurance Company ("American States") filed suit seeking a declaration of rights under its policy relating to claims brought against its insureds, painting and repair contractors and a franchisor, by customer Mary Jane Nethery ("Nethery"). The district court granted partial judgment as a matter of law to the insureds, and American States appeals. We hold that Nethery's claim that her hypersensitivity to chemicals was inflamed by fumes from standard paint and glue materials is excluded by the absolute pollution exclusion from American States's comprehensive general liability policy. Accordingly, we reverse and render judgment for American States.


The facts are not disputed. In 1991, Nethery, through her insurer, hired DAPA, Inc. d/b/a ServiceMaster of Tupelo, Mississippi ("DAPA"), to paint portions of the interior walls and replace sections of the floor of her home. Because of Nethery's "chemical hypersensitivity," she alleged that she explicitly contracted for the repairs to be made with special paint and glue that would be "non-toxic" to her. DAPA, nonetheless, repaired Nethery's home with regular industry standard paint and glue.

Nethery contends she is allergic to the chemical 1,1,1 trichloroethane ("1,1,1 tca") in the regular paint and glue and that fumes from these materials injured her and caused the loss of the use of part of her home. In state court, she sued DAPA, its president Danny Miles, its franchisor, The ServiceMaster Limited Partnership ("ServiceMaster") (collectively, "the insureds"), and others not parties to the instant case, alleging breach of

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contract, gross negligence, and intentional infliction of emotional distress. The insureds made demand upon American States for defense and coverage of Nethery's claims. American States defended under a reservation of rights and filed this declaratory action.

Responding to cross-motions, the district court granted partial judgment as a matter of law to American States and held that the insurer did not have a duty to defend against Nethery's claims for breach of contract and intentional infliction of emotional distress. The court also held, however, that American States had a duty to defend against Nethery's gross negligence claim and that such claim was not barred from coverage by the pollution exclusion.

American States has appealed, contending that the district court erred in concluding that its policy covers gross negligence, and contending that the absolute pollution exclusion does apply to bar Nethery's claim. We need not reach the former argument, because the latter one is dispositive.


We review the district court's grant of summary judgment and its interpretation of American States's insurance policy de novo, applying the same standards as the district court. Constitution State Ins. Co. v. Iso-Tex, Inc., 61 F.3d 405, 407 (5th Cir.1995). Under Mississippi law, courts interpret insurance policies according to contract law. Aero Int'l, Inc. v. United States Fire Ins. Co., 713 F.2d 1106, 1109 (5th Cir.1983) (applying Miss. law). This...

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