Racetrac Petroleum, Inc. v. Ace American Insurance Company

[DO NOT PUBLISH]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,

2
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.

3