may please the court i'm laying fanshawe i'm here to represent evanston insurance company formally now in his essex insurance company we're here to discuss a much simpler matter than the court has already been challenged with today  this case involves a total pollution exclusion which is approximately three dozen words long it also involves clear allegations in the underlying complaint and i quote the sewage line was breached and thereafter raw sewage began to and continue to seep and invade their homes that alabama supreme court must have thought it was a simple easy issue because armstrong your honor i would disagree with that that case involves a significantly different qualified pollution exclusion our case involves a total pollution exclusion also known as an absolute pollution exclusion there are numerous cases that we have sided this court in fact has decided a case the maxine first case under the same absolute pollution exclusion and if i may the alabama supreme court in the abs petroleum case applied a total pollution exclusion to gasoline seepage and it did not refer back to the armstrong case or bar the application of that exclusion because there was not the traditional environmental pollution also one last point as to armstrong in reading that particular exclusion it is limited to pollutants that are discharged into or upon in the atmosphere or any water course or body of water and that is along your lines of traditional pollution which none of that language is in any of the more modern told me wrong i think what they're referring to there are the united states district court for the southern district of alabama applied an identical pollution exclusion in the estis heating case and found that noxious gases emitted from dry wall  constituted pollution that was excluded under again and identical exclusion we've cited cases from michigan to georgia to florida finding raw sewage to be pollution as well as the odors from rendering plants inside a case you can cite in alabama case that stands for the proposition that raw sewage is pollution yes sir and we have in our brief we've cited cases going back not in the yes sir and we've cited that in our brave we also sided with cases that we've also cited the alabama department of environmental management administrative code which defines raw sewage to be pollution we've also cited an ordinance from the city of defining rosters to be pollution quite honestly i can't sewage is not pollution what else is yeah i think i think you make a good common sense argument and if were we didn't have armstrong i might be with you but you've got significant problems in my personal opinion with armstrong because armstrong has a clause that whether you call it qualified or not is worded in almost exactly the same way except for the part that says that the exclusion doesn't apply if that this charges sudden accidental but armstrong doesn't focus on the sudden an accidental portion of it it just ignores it and at what it says it's very it's very short it says an identical clause is not free of ambiguity should be strictly construed against the unsure this clause is intended to cover as judge wilson hinted at only industrial pollution in contamination and to deny coverage here would be to distort the plain purpose of the lead of the pollution exclusion right you have the same almost the exact same exclusion here and you have the same quote unquote pollutant raw sewage why isn't the right thing to do to just follow armstrong and let the alabama supreme court tell us in a later case that if we got it wrong well i would ask why is not the right thing to do to follow the alabama supreme court and abstain it didn't involve raw sewage yes or yes that's the problem that if you if you had armstrong with a different pollutant i could see the argument raw sewage is not like that pollutant there are differences don't apply that case that cases think we should all but you've got almost the the exact same exclusion and you've got the same for lack of a better term pollutant and armstrong says there is coverage we do not have a definition of pollution in armstrong we do have a policy definition of pollution but the definition of pollution in your policy yes or is the substance of the clause in armstrong your policy defines pollutant as any solid liquid gaseous or therm irritant or contaminants in armstrong it's any smoke vapor suits formal sets out to light toxic chemical liquids or gases waste materials or other irritants contaminant or pollutants so whether you have a separate definition or not the clause has what's included in what's not included and i just don't see how you get outside of armstrong where you get outside of armstrong by laying the exclusions next to each other and you will see that the more modern absolute pollution exclusion which is commentators have talked about the evolution of these and many courts have talked about that as well and in the current  of the total policy sees me total pollution exclusion it excludes coverage that would not have occurred in whole or in part but for the discharge cetra of pollutants at any time and i would argue that at any time means this exclusion is as it is its title says a total pollution exclusion and if i may in the last two minutes make a couple more points about armstrong that court was very careful to say three things it said we should not be understood to hold raw sewage could never be such a pollutant it also said we should not be understood to hold that the insurance company could not write an exclusion clause which would cover the activity involved here and that's what the companies have done they have modified the exclusions to indicate they are not tied to rejected the insureds argument that hey gasoline is not included in the list therefore it's not a pollutant and the alabama supreme supreme court stated in response that drafter cannot anticipate all interactions of fact and text and if they could the effort would leave behind a contract more like a federal procurement manual than an insurance policy and insureds would not be better off in the process the resulting contract would only be in comprehensible and also more expensive so yes a company could look at and i looked yesterday the e p a has a eight a primary pollut well also says most strongly against the insurance company that drafted it issued yes i agree that that is the law in alabama the law in alabama is also that an insurance company can write its policy as narrow as it desires does as that does not contradict a statute or public policy and the alabama supreme court has approved in a non industrial context this language in abstention this eleventh circuit has also applied under alabama law the same provision in a non industrial context in maksim for us and the southern district court has also applied this exact same clause these days the an absolute pollution exclusion to traditional environmental things thank you your honor you know you'd either generally insurance companies prefer i think this is a fair generalization preferred to file deck actions in federal court when there's a coverage issue even if they're being sued for something else where the insured is being sued on the state law site this might be a case where the next time this thing rolls around you may want to file in state court get the alabama courts to figure this out and have another have the alabama court of civil appeals decide whether or not armstrong is no longer a good law because of the differences you mention well will solve the issue once and for all your honor alabama's courts have a possibly a habit i might suggest of overruling things without saying they overrule things and i suggest that's what happened in that's a problem for us yes or i understand that but filing in federal court makes sense when we have a case this circuit and a case from a district court within my state holding that this exact same clause excludes coverage for courier rama gasoline and off gassing and we have raw sewage and again i can't imagine what possibly could be should not implicate ball in this context just to address a few points with regard to the question concerning the insurance company changed its exclusion amended so as to cover situations like this have three points on it yes certainly they could first thing they could do is stop calling it a pollution exclusion if they're intending it to be as broad as they want to read to include all sorts of things whether big korea or somebody i  use this is example shakes up a can of coca cola it spread it opens it sprays everywhere in stains clothing that that is a pollutant or even water being a pollutant when it leaves a water sta well that's a great question and i question that the court in armstrong had the same definition notwithstanding the inclusion of the term waste it still found that sewage  was not a political with regard to this type of situation and under pollution exclusion also it mentions that it can be recycled in things of that nature is ways whereas here the you don't recycle the i to use for feces in the context but that's what it is in this context and with regard to for example i want to dress for the recycling the recycling inclusion within the definition of pollutants is in your policy here not in the policy armstrong correct but i don't think it applies here given what it is sewage i mean i don't know that you recycle the well not for residential sewage coming from a residence and again that's the theme here and i think that's what distinguishes this from even abstinence abstinence involved a gasoline leak at a station which were quiet that leaked into the soil contaminated and require the business to be closed it also required adium alabama department of environmental management intervention involved so we had an industrial or a traditional environmental case there also again as you pointed out was gasoline and not sewage here we really had what we have here is a toilet backing up in a house the sewage involved in this case did not come from somewhere else it did not come from a waste water treatment plant down the street it it's their own sewage the tenants on sewage it has never left the property and that and again it goes to the point that was made that the two exclusions are significantly different we would hardly when you really look at the provisions they're actually more identical than they are the same and with regard to the distinguishment of it being a qualified pollution exclusion versus a total or absolute again the qualified pollution exclusion that name was only given after armstrong in fact armstrong described it as a standard pollution exclusion so the court shouldn't get caught up in the names especially given poor field where poor field was an inter a and absolute pollution exclusion yet in addressing the terms like discharge and dispersal it looked back to the courts prot the courts prior construction and qualified pollution cases that had those same terms so the fact that we're asking the court just like the district court did to look to armstrong the fact that it was a quality pollution is not a distinguishing factor it's just really looking at the terms here he also mentioned that with regard to defining sewage as a like grading issues in the city among them mary has nothing to do with the toilet backing up in the house and even still if it's reasonable for an insured or the insurance company or both to look to a d m regulations when you think you'd be in a little more trouble if armstrong didn't exist correct yes i think if this was a first instance for example the maxine first case i realize it's an on reported decision of this court and looking at an issue of first impression without armstrong and i think that goes to the what a reasonable insured would view the policy as you've got to consider as the court of poor field instructed as the court in alabama plaiting instructed that you dish will construction placed on it there yes we'd have it we'd have a much different argument if an argument at all and be a much different case but again you can't ignore armstrong i think that's the key here is we're talking about alabama law there can be cases through out this nation that go one way or the other porterfield acknowledge that poor girl said you can find support or an argument against any issue that's come up in these pollution exclusion cases they're all over the map for example we cited the minerva case from arkansas which actually did look to alabama law and in minerva it found it's not clear from the language of the policy that a single backup of a septic tank in a mobile home park is necessarily the kind of pollutants in a pollution exclusion those were just offhand references to pollution in a nuisance case but again if we're looking to traditional forms of  pollution in a sense of if this was sewage that had leaked into the ground and contaminated entire neighborhood and a crowded adium in the e p a and everyone else whoever else to come in and they're pulling their excavating dirt and all that we may have a different case i think but here we have a toilet backing up inside a house sure you want to make that argument but i mean we have a toilet backing up inside the house it's the sewage was there it never left the property so it so you're saying raw sewage could constitute pollution if it was more expensive possibly and that's where i think the argument with respect to armstrong's qualification at the end were not to be understood that pollution that sewage could never be a pollutant more insurance company cannot draft and exclusion to cover this in other words given the circumstances and i think the court is limited here to the actual facts in the case i know that there's a reference as to the complaint allegations but i believe we sided they appropriate case law from alabama stating when there's not necessarily coverage you can look beyond the complaint to the admissible evidence and we've submitted that a missile evidence in the form of depositions from the underlyin plaintiffs in the case as to how this sewage came back up into their house and they were harmed so unless there's any more questions i'll just go and sit down and turn it over to mr warren thank case like air histon tries to make it into the back to earth tall it occurred in a house it occurred because my folks fractured a sewage line out near the street while they were doing underground bouldering to install a conduit so that dixie electric could put in an electric glad the cased underlying alabama court case event that insurance companies or courts have looked at to exclude coverage now armstrong controls the case no doubt about it and i'm not  about that except peripherally but i want to talk about the reasonable expatiate pick spectating of the insured because that's my guy all they did in their business was underground boring horizontal boring they wanted liability coverage so if they strike an object while they're doing underground borning they've got la bella to coverage so you know the alabama law which controls this issue so is that it's not what the insurance company is not what evanston contended the words to mean but what a reasonably prudent person applying for insurance understood those words to me so if i think about that it could be a reasonable leap prudent person if i strike a sewage law and that's an industrial pollutant and therefore i wouldn't have any coverage that he would know there was a list take that reasonable expectation inquiry one step further let's say this didn't happen but let's just say that my client had come to me and he says dave i'm about to buy an insurance policy i want you to look at this policy tell me if i have coverage if i strike something while i'm doing my on the ground boring well i'd look at the law and nod and armstrong and i see what armstrong say is so that avoid coverage for striking a sewage line and then i would also find porterfield and that doesn't of all white coverage for this particular circumstance so i wouldn't say that there's any impediment to buying that policy with that particular endorsement in it another thing i want to point out to you is if you look at porterfield because justice harwood who wrote that opinion only alabama supreme every one of them involved industrial pollution everyone up and involved industrial pollution so this circumstance here where evanston is trying to  site that we're not saying you got a catalog everything but one thing they could do is stop use in environmental terms of art like dispersion discharge those all are according to the alabama str supreme court on associated with environmental law and on hazardous voiced that would be a way to do it so in closing that the court has it right this court doesn't sit in review of the alabama supreme court instead in a diverse to case such as this you apply alabama low and looking at the alabama law armstrong controls the trial coat  right and the exclusion does not apply thank you thank you counsel here again from mr fetzer yes your honor thank you sorry for my inability to find in my index but we've cited those cases that i referred to primarily it around page twenty one for those cases though involve interpretations of exclusions and insurance no sir out what i was attempting to do is illustrate the fact that it appears everyone knows that raw sewage is a pollutant the alabama courts do in a number of contacts the department of environmental management knows the city might armory knows courts across the nation no i just have a hard time th one is more descriptive than the other and there's a more recent case that was decided after the briefing was done here is a case out of the eastern district of washington where court there said the definition of pollution includes waste and the court was not going to allow quibbling over the term waste and it noted the dictionary definition which is refuse from places of human or that case pointed out that it's the fact that the manure at least into the water system that created the contaminants had it been water in the water system there's no contaminant so his example about if we spill some water pollutant in the state of washington but not in the state of alabama yes sir but i believe we've illustrated that it is in the state of alabama in many contexts and the supreme court even said it could be considered raw sewage in the context of coverage it just didn't find that under that different terminology let me ask you one more question to be if you think that armstrong isn't directly controlling let me ask you this interpretation question in armstrong waste materials was a category in another itself it was an example here waste is an example of a thermal irritant or contaminant doesn't that mean that waste materials was broader in armstrong than it is here i would disagree grammatically your honor ok what the exclusion now says is pollution is any solid liquid gases or thermal so they're trying to cover all of the states of matter right where it has to be but it has to be an irritant or contaminant right agreed ok including waste yes or so waste is an example of an irritant or contaminant yes sir and in armstrong ok waste was its own category it didn't have to be an irritant or contaminate because that clause says let me see if i can get it all in a lot in one breath smoke vapor suits fumes acids alkalis toxic chemicals liquids or gases waste materials or other irritants contaminants were pollutants you don't think that's broader than the one you have in your case no sir because ours says in damage which would not have been caused in whole or in part by  contaminant four irritant in at any time so i don't see how that is narrower than the language in armstrong a few more points if i had i'm a just to respond to what was brought up also with respect to waste in that washington case they were quibbling over well what about manure is that waste in the court said waste is waste doesn't matter france animal waste its waste and i would say with all due respect here it doesn't matter if it was human waste it's waste also they try to downplay make it sound like maybe a little water you know came out on the bathroom floor they've cited the record we record one of the plaintiffs describe it as if a porta potty was discharged in her house so this is a pretty big event according to the plaintiff's testimony and in fact  would respectfully disagree two points one that's not in the record there are statements by counsel as to what his client intended or wanted that's not in the record also this is a general liability policy it covers  including as a boring company if they are boring under and they hit a power line and explodes transformer blows up true you know pole falls on hard falls on the person all that's covered is that doesn't involve a pollutant again the policy covers a number of risks and then it clause back with exclusions certain things that the carrier does not intend to cover and getting back to their point about well they could have written it differently in light of armstrong why should they ride it any differently in life shalamar which is a nine hundred ninety seven decision applying a similar exclusion to clothing contaminated with lead paint again not in industrial context that's a federal district court case under alabama law the absent case we've discussed maxine for and estes hearing all of those cases say you know this this should work and also with respect to porterfield what the court had trouble with in porterfield is the use of the words dispersal and discharge and similar words in the context of flaking lead paint that's what the court was hung up on there not is lead a pollutant in some contexts  some courts have looked at that what's the context because in one context something is not a pollutant in another it is in our case in this context raw sewage is clearly a pollutant and we believe the exclusion is as it says a total pollution