UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________ United States Court of Appeals
Fifth Circuit
No. 06-20335 FILED
_______________________
April 22, 2008
UNITED NATIONAL INSURANCE COMPANY,
Charles R. Fulbruge III
Plaintiff-Appellee,
versus Clerk
HYDRO TANK, INC., ET AL.,
Defendants,
MOTIVA ENTERPRISES, L.L.C.,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
No. 4:04-CV-02924
ON PETITION FOR REHEARING
(Opinion 8/15/07, 5th Cir. 497 F.3d 445)
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
The Court, having considered the Petition for Rehearing
filed by Motiva Enterprises, L.L.C. in this case, amends our
opinion found at 497 F.3d 445, as follows:
Subsections 1 and 2 of Part II.A. of the opinion are
superseded by the following, and subsection 3 is renumbered as “2":
1. Sufficiency of the Pleadings
The Duriso Plaintiffs alleged they “were caused
to sustain serious injuries and damages while working in
a tank when they were exposed to toxic levels of hydrogen
sulfide and/or other chemicals and vapors.” As a result,
they “became overcome by chemicals and toxins owned by
[Motiva]...causing brain injury and damage.” Motiva
argues that use of the phrase “and/or” creates two injury
scenarios: one in which the workers were injured by
hydrogen sulfide gas, a pollutant,1 and one in which they
were injured by “other chemicals and vapors” that are not
necessarily pollutants. Under the second scenario,
Motiva asserts, the workers have not alleged injury by a
pollutant. For purposes of construing the duty to
defend, this court must interpret the pleadings
liberally. Nat’l Union Fire Ins. Co. of Pittsburgh v.
Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.
1997). But our duty to construe the pleadings liberally
does not require us to adopt unreasonable interpretations
of plain language, ignore ordinary usage, or set aside
the basic tools of construction.
If the phrase “and/or” is conjunctive, Motiva’s
interpretation contradicts the policy’s language. The
relevant clause states that coverage will be denied so
long as “‘bodily injury’...which would not have occurred
in whole or in part but for the...alleged...release...of
‘pollutants.’” Thus, if a claim alleges that injury
arose at least in part from a pollutant, coverage is
1
Motiva does not dispute that hydrogen sulfide is per se a pollutant
within the meaning of the policy.
2
denied. See, e.g., Amoco Prod. Co. v. Hydroblast Corp.,
90 F. Supp. 2d 727, 732-33 (N.D. Tex. 1999) (allegation
of pollutant-related injury sufficient to trigger
pollution exclusion clause); Bituminous Cas. Corp. v.
Kenworthy Oil Co., 912 F. Supp. 238, 241 (W.D. Tex. 1996)
(same).
But even if “and/or” references a disjunctive
phrase and thereby states two possible causes of the
workers’ fainting, either through their exposure to
hydrogen sulfide gas or “other chemicals & vapors”,
Motiva’s argument still fails to allege a covered
incident. Depending largely on dicta from an unpublished
Fifth Circuit opinion interpreting a damages clause in a
service contract, Motiva argues that the correct
interpretation of the Duriso pleading reads the phrase
“toxic levels of” as applying only to “hydrogen sulfide,”
and not to the latter phrase “other chemicals and
vapors.” See Vaulting & Cash Servs., Inc. v. Diebold,
Inc., 1999 WL 1068257, at *2 (5th Cir., Oct. 22,
1999)(unpublished). The Vaulting court, however, was
construing contractual language that is syntactically and
semantically dissimilar from the operative language of
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the Duriso pleading.2 Moreover, the panel explicitly
stated that “grammatical parsing” is only part of the
interpretive process, and the “reasonableness of the
interpretation advanced by each party” also plays a
significant role. Id.
If anything, the Vaulting decision supports
United National’s position. The logical interpretation
of the pleadings is that the phrase “toxic levels of”
modifies both “hydrogen sulfide” and “other chemicals and
vapors,” particularly in light of the fact that the
Duriso Plaintiffs only a few sentences later allege brain
injury from “chemicals and toxins.” Moreover, when
general terms like “chemicals” and “vapors” follow
specific terms like “hydrogen sulfide,” there is a
presumption that the general terms are to be construed to
belong to the same class or category as the more specific
term. See, e.g., In Re Biloxi Casino Belle Inc.,
368 F.3d 491, 499 & n.8 (5th Cir. 2004)(discussing, in an
insurance context, the ejusdem generis3 canon).
Accordingly, the phrase “toxic levels of hydrogen sulfide
and/or other chemicals and vapors” suggests that injury
2
The Vaulting court determined that, in the phrase “in no event shall
Diebold be liable to Subcontractor for indirect, incidental, consequential or
similar damages, lost profits, [sic] lost business opportunities,” the adjectival
series “indirect, incidental, consequential, or similar” modified only “damages”
and not the subsequent nouns. 1999 WL 1068257, at *2.
3
“Of the same kind.”
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resulted from (1) toxic levels of hydrogen sulfide;
(2) toxic levels of other chemicals or vapors; or (3) a
combination of both. In any of these situations, the
workers were exposed to pollutants according to the
policy exclusion.
Next, Motiva argues that a plausible reading of
the complaint suggests that the Duriso Plaintiffs were
injured not by hydrogen sulfide gas, but by the sludge
itself, which Motiva contends is not a pollutant because
it was properly stored in the mix tank. We need not,
however, determine the difficult issue whether toxic
sludge stored in this fashion is a pollutant,4 because
this argument cannot be squared with the plaintiffs’
pleadings. Motiva claims that since the workers do not
allege the particular mechanism of their exposure to
hydrogen sulfide, it is possible that they were injured
by skin-to-sludge contact, rather than by inhalation of
a gas. If the workers were overcome, for example by
heatstroke or a non-pollutant chemical, and subsequently
fell into the properly stored toxic sludge only then to
be injured by contact with hydrogen sulfide, they could
4
But see Certain Underwriters at Lloyd's London v. C.A. Turner
Construction Co., 112 F.3d 184, 188 (5th Cir. 1997) (pollution exclusions are not
limited “to only those discharges causing environmental harm”); Hamm v. Allstate
Ins. Co., 286 F. Supp. 2d 790, 794-95 & n.2 (N.D. Tex. 2003) (pollution exclusion
barred insurer's duty to defend when injury resulted from indoor accumulation of
toluene fumes during an office renovation); Zaiontz v. Trinity Universal Ins.
Co., 87 S.W.3d 565, 571-72 (Tex. App. 2002) (injury caused by "odor eliminator"
chemical that was confined to its proper area of application triggered pollution
exclusion).
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not allege injury by a pollutant as defined in the
policy.
Contrary to this theory, the plaintiffs allege
they were “overcome” by “chemicals and toxins” and were
“caused to fall” into the sludge. The toxic exposure
caused them to collapse, and they may then have suffered
further toxic exposure. Under no liberal construction of
the pleadings can this sequence of events be read to say
that the toxic exposure occurred only after they were
“overcome” by heat or a benign chemical.
Except for the above modification, the opinion and result
are otherwise unaltered.
Petition for Rehearing DENIED.
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