EVANSTON INSURANCE COMPANY v. CABLE CONSTRUCTION LLC (2018)

United States Court of Appeals, Eleventh Circuit.

EVANSTON INSURANCE COMPANY, Plaintiff-Counter Defendant-Appellant, v. J&J CABLE CONSTRUCTION, LLC, Dixie Electric Cooperative, Marrell A. Crittenden, Jr., individually and as Next Friend of M. C. and A. C., Courtney Bynum Crittenden, individually and as Next Friend of M. C. and A. C., Caroline Torrence, Defendants-Counter Claimants-Appellees.

No. 17-11188

Decided: April 20, 2018

Before WILSON and JORDAN, Circuit Judges, and CONWAY,* District Judge.

Fredrick Lane Finch, Jr., Brian C. Richardson, Swift Currie McGhee & Hiers, Birmingham, AL, for Plaintiff-Appellant D. Craig Allred, David E. Allred, Allred & Allred, PC, Montgomery, AL, for Defendant-Appellee J&J Cable Construction, LLC Louis Michael Calligas, John Garland Smith, Balch & Bingham, LLP, Montgomery, AL, for Defendant-Appellee Dixie Electric Cooperative H. Lewis Gillis, Kristen J. Gillis, Tyrone Carlton Means, Means Gillis Law, LLC, Montgomery, AL, Robert Simms Thompson, Attorney at Law, Tuskegee, AL, for Defendants-Appellees Marrell A. Crittenden, Jr., Courtney Bynum Crittenden H. Lewis Gillis, Kristen J. Gillis, Tyrone Carlton Means, Means Gillis Law, LLC, Montgomery, AL, Robert Simms Thompson, Attorney at Law, Tuskegee, AL, Tiffany Johnson-Cole, Tuskegee, AL, for Defendant-Appellee Caroline Torrence

Following oral argument and a review of the record, we affirm the district court's summary judgment order. First, on these facts, there are no legally significant distinctions between the pollution exclusion clause here (including its definition of “pollutants”) and the clause at issue in United States Fidelity & Guaranty Co. v. Armstrong, 479 So.2d 1164, 1168 (Ala. 1985). Second, the “pollutant” here (sewage) is the same as the one at issue there. Id. at 1166. Third, the incident's context here puts it further from “industry-related pollution” than the “flow[ing]” of “raw sewage ․ onto adjacent land” in Armstrong. Id. at 1166, 1168. Under the circumstances, the district court correctly ruled that Armstrong controls.

AFFIRMED.

PER CURIAM:

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