Evanston Insurance Co. v. Sandersville Railroad Co., 020819 FED11, 17-14487

Docket Nº:17-14487
Opinion Judge:GRAHAM, District Judge.
Party Name:EVANSTON INSURANCE COMPANY, Plaintiff - Appellee, v. SANDERSVILLE RAILROAD COMPANY, Defendant-Appellant.
Judge Panel:Before WILSON and JORDAN, Circuit Judges, and GRAHAM, District Judge. JORDAN, Circuit Judge, concurring in the judgment:
Case Date:February 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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EVANSTON INSURANCE COMPANY, Plaintiff - Appellee,

v.

SANDERSVILLE RAILROAD COMPANY, Defendant-Appellant.

No. 17-14487

United States Court of Appeals, Eleventh Circuit

February 8, 2019

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:15-cv-00247-MTT

Before WILSON and JORDAN, Circuit Judges, and GRAHAM, [*] District Judge.

GRAHAM, District Judge.

Sandersville Railroad Company was sued by an employee who developed an occupational disease known as welder's lung. Sandersville in turn notified Evanston Insurance Company of a claim under its Commercial General Liability Policy. Evanston then filed suit, seeking declaratory judgment that a pollution exclusion clause to the Policy excluded coverage of the welder's lung claim. The district court granted summary judgment to Evanston on the coverage issue. After review and with the benefit of oral argument, we affirm.

I.

Sandersville operates a short line railroad in Georgia. Employee John Flowers worked as a rail carman for twenty-two years, maintaining a fleet of rail cars and spending much of his time welding. In 2012 doctors diagnosed Flowers with a lung disease called siderosis, or welder's lung. Flowers made a claim to Sandersville in January 2013 and later brought suit under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. He alleged that his disease was caused by occupational exposure to welding fumes containing iron-an allegation that neither Sandersville nor Evanston dispute.

Evanston issued the Commercial General Liability Policy to Sandersville for the period of September 1, 2012 to September 1, 2013.1 The Policy contains numerous forms and endorsements, including a Premier Railroad Liability

Coverage Form. The Form has an "Insuring Agreement" under which Evanston agreed to cover "sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." The Form defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death . . . ."

The Form contains a list of exclusions. One is for "Employer's Liability," which excludes coverage for bodily injury to an employee of the insured "arising out of and in the course of [e]mployment by the insured." But the exclusion "does not apply to . . . liability imposed on [the insured] by the Federal Employers' Liability Act." The Form defines its reference to FELA as regarding "injury to 'employees' in the course of their employment, including occupational disease."

Another exclusion is for "Pollution." It excludes coverage for bodily injury "arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of 'pollutants.'" The terms "discharge, dispersal, seepage, migration, release or escape" are not defined. The term "pollutants" is defined as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."

When notified of the Flowers claim, Evanston issued a reservation of the right to decline coverage based on the pollution exclusion. After Sandersville later settled the Flowers claim without contribution from Evanston, Evanston filed this diversity action seeking a declaratory judgment.

The district court held that the pollution exclusion barred coverage. The court interpreted Georgia case law as broadly applying similar pollution exclusion clauses beyond traditional environmental pollution claims. The court found as a matter of law that siderosis resulting from the inhalation of welding fumes qualified as an injury arising...

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