concurring.
I concur in the majority opinion. I write separately to explain why, in my view, the seemingly applicable “j(5)” exclusion does not apply in the circumstances of this case.
The insurance policies in this ease, in the “j(5)” exclusion, exclude coverage for “property damage” to
That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations.
Notably, the policies do not define “performing operations” or “operations.”
Two canons of constructions are crucial to my resolution of this issue. First, the insurer bears the burden of showing that an exception applies. Interstate Life & Acc. Ins. Co. v. Gammons, 56 Tenn.App. 441, 408 S.W.2d 397, 399 (1966). Second, ambiguous insurance contracts, and, in particular, ambiguous language limiting coverage, are construed in favor of the insured. American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 815 (Tenn.2000); Interstate Life & Acc. Ins. Co., 408 S.W.2d at 399.
The insurers argue that the j(5) exclusion- applies because, under Standard’s contract with the State of Tennessee, Standard was required to dispose of construction debris. As explained in the majority opinion, Standard entered into a contract with the State of Tennessee to perform paving and road widening work as part of a state project to widen Highway 64 from two to five lanes. In the contract, Standard agreed to “clear and grub” vegetation and debris, to remove “structures and obstructions,” and to dispose of this material “outside the limits of view from the project.” Regarding the “clearing and grubbing,” Standard was required to “make all necessary arrangements with property ovtmers for obtaining suitable disposal locations,” and the cost involved was “included in the unit price bid for other items of *855construction.” Regarding the removal of “structures and obstructions,” the contract provided that, “[i]f the material is disposed of on private property, [Standard] shall secure written permission from the property owner.”
While in my view the question is close, the term “operations” is ambiguous in that it is not clear whether Standard was “performing operations” on Ms. Love’s property when it dumped debris there. It is true that Standard was required under the contract to dispose of construction debris and to obtain permission from any property owners on whose property Standard chose to dispose of the debris. However, Standard was not obligated to dispose of the debris in any particular fashion — Standard owned the debris once it was removed and could dispose of it in a number of ways. It was not necessary for Standard to dump debris on Ms. Love’s property in order to fulfill its contract to widen the highway. The requirement that Standard obtain permission before it dumped debris on private land simply served to shield the State of Tennessee from liability to third parties. As the district court found, “work on Ms. Love’s property was an additional duty or task that Standard was to undertake through additional contracts with adjacent landowners.” Or as Standard argues, it was “hired” to widen a road — not to perform woi'k on Ms. Love’s land.
Thus, given that the canons of construction favor coverage, and that, as explained in the majority opinion, coverage in the present case coincides with the underlying purpose of CGL insurance, the district court properly concluded that the j(5) exclusion does not apply.