[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12023 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 3, 2011
JOHN LEY
D.C. Docket No. 1:10-cv-02162-WSD
CLERK
RACETRAC PETROLEUM, INC.,
a Georgia Corporation,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
ACE AMERICAN INSURANCE COMPANY,
a Pennsylvania Corporation,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 3, 2011)
Before EDMONDSON, WILSON, and KRAVITCH, Circuit Judges.
PER CURIAM:
This case involves an interpretation of the commercial general liability
insurance policies that Racetrac Petroleum, Inc. (“Racetrac”) purchased from Ace
American Insurance Company (“ACE”). Racetrac was sued by two individuals
who claim they suffered personal injuries as a result of exposure to Racetrac’s
gasoline products. When ACE refused to cover Racetrac for those claims,
Racetrac sought a declaratory judgment, claiming that the policies covered their
excess liability. The district court found that Racetrac failed to state a claim for
declaratory relief upon which relief may be granted and dismissed Racetrac’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court found
that the pollution exclusion clause in the policies precluded coverage. Racetrac
now appeals.
After carefully reviewing the record and the district court’s order, we
conclude that the court properly granted the motion to dismiss. The pollution
exclusion provision in the policies expressly excludes coverage for injuries caused
by “any substance if such substance has, or is alleged to have, the effect of making
the [air] impure, harmful, or dangerous,” including the air within a structure. As
the district court correctly found, Racetrac seeks coverage for the injured
employees’ claims that “allege that the gasoline vapor, and specifically the toxic
benzene contained in it, made the air they inhaled impure, harmful, and dangerous,
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which resulted in their claimed physical injuries.” Such claims fall squarely
within the policies’ pollution exclusion.
We also agree with the district court that the pollution exclusion does not
violate Georgia public policy since the liability insurance policies at issue are
primarily intended to provide Racetrac with coverage for the countless other risks
associated with operating convenience stores.
AFFIRMED.
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