may please the court my name is dan mcmahon i'm here on behalf of sanders hill railroad which is led by mr benjamin target and was moved to his right behind us here today we are here today to seek insurance coverage that sanders will railroad bought as a responsible but small corporate citizen who is seeking to protect the public and its own employees when it went out and looked for see jail policy commercial general i belittle policy that covered not only bodily injury t individuals other than its employees but because it's a railroad and is under feel of the federal employees liability act would cover any injuries it might cause to its own employees in the way that other employers get to rely on worker's comp policies so this is a slightly different than your typical c h l policy places as evanston labels it a premier railroad policy it is our contention that the case of mr flowers his claim against sanders  ray should be covered under this policy and in fact we believe that evanston agrees with us that it is they claim of mr flowers within the ensuring agreement of the policy but that their concern is not so much whether it's covered by the policy in the first instance but that they can rely on an exclusion the pollution exclusion to not lie claim backed out of coverage if our decision and by the two men this casualty versus advanced he said was still good law there might be some merit to your argument but the georgia supreme court has changed all that now with its two opinions georgia farm bureau versus math and read versus auto insurance company and so in this case pretty identical your honor we would say very much that this case is identical to by two minutes but i would respectfully question and underpinning of your decision which is is by two minutes no longer good law we contend that it is in fact a good law that it is entirely consistent with reid and with smith and about how to read an insurance policy the concern that the smith court that the reed court stated the georgia supreme court read stated was that in the underlying matter for read whether the policy had been properly interpreted and the concern that reid had was that the court below had come to the policy and instead of going first where they showed up to the policy language to apply georgia state law as to how to read a policy the o g ca thirteen dash to dash two rules  exclusion languages been interpreted much more expansively broadly as a result of these two georgia supreme court opinions that my wrong about that no sir you are absolutely correct but what those two decisions did is that they were interpretating one part of the pollution exclusion in fact they were not even doing that they were interpret ing the definition of pollution and the term pollution is then used in the pollution exclusion so read and smith were both very clear that they were looking at the definition of pollution to see whether or not on the facts of the cases before them something was a pollutant in read the question is is carbon monoxide that is released from an indoor heater a pollutant and the answer was yes and reed said we do not like these cases in other jurisdictions that say the purpose of the pollution exclusion is for traditional environmental pollution and then expound from the purpose ok so from the protests so you're arguing that the welding is that injured mr flowers were restricted to a confined space inside the railcars right that is correct and that therefore so therefore there is no pollution because there's no escape or there's no seepage right  i that is not quite our argument our argument is that the welding fumes are a pollutant at the time that this all began the smith case had not yet come down and so there was an intermediate george appellate court law a little different on the house arguing that it's not a pollution because it's the fumes are confined to the rail car we are arguing that although the fumes are a pollutant that the pollution exclusion is not satisfied here because  pollution exclusion requires that you have a pollutant but it also requires that the injury arises out of the discharge dispersal release escape seepage or migration of that pollutant it isn't simply that it's caused by home and read involved a release of carbon monoxide in a home your honor i hope so in both of those cases that the rooms never move beyond the confines base of the home which is exactly what we have here in this case for your honor it's a little bit different because in both of those georgia supreme court cases they were not dealing with whether or not there had been a release in fact in a read it was quite clear the party below the claimant had alleged a release because the release was from the heating unit which should have been vented to the outside properly into a home where it was not supposed to be that means that there had been a release and it was no longer confined the way it was intended to be but in any event reid was quite clear you're saying that release has to be interpreted in light of its intention i'm saying release has to be interpreted well i mean there's no doubt that in the normal course of language the fumes in this case were released otherwise flowers would not have been hurt right well i think they had to go from what he was doing into the atmosphere so that he would ingest them they had to be released in the normal sense of the word is that not correct i would say that that's not correct because that among other things as it were did those irritants go others so something there's a chemical reaction and from that chemical reaction the irritant to pollutant is released and that's what he ingests well but your honor you need to under georgia rules of statutory interpret that contract interpretation look at the entire policy other parts of the policy have exclusions for when you are exposed to come into contact with or inhale certain substances that's not this part of the policy so we know that this part of the policy it's not enough and in fact evanston has never argued that there was a release they made today now but in their briefing below they said there was a discharge and there was a dispersal but in their first two brief this charger released what's the difference between those things well looking at by two miss a discharge can mean several things including an unloading or an explosion neither which this is but that's those aren't the exclusive possibilities for that word those are not the exclusive possibilities so i buy if i empty this bottle of water that's a discharge of water is it not i guess it could be a discharge but what we're talking about is in a policy if there are two reasonable meanings and so your honor is suggesting one reasonable meaning but if there's another one that does not encompass that that's a problem for the who should have been more specific and that is something that is in by two minutes following the rules of construction that is how policies are constructed so for instance here we have the a specified exclusion and the asbestos exclusion is much broader and says anything caused by as best as caused by inhalation contact with touch a whole list of things and then in the middle they drop in the discharge dispersal release escape so that means that discharge dispersal release and escape cannot be equated with mere exposure ok so tell me tell me the definition that you would have us write in an opinion the pollution exclusion in this case applies when well and that's what we took some heat on underneath but where we say that something moves from where it's supposed to be to where it's not supposed to be but that is what is in common with the six pollution exclusion terms that makes it different from the greater number of terms in the exclusion because otherwise you're going to end up with a situation they already have other policy language for instance there's a sort of terrorism related exclusion that says anything caused by a chemical that is used maliciously is excluded they wouldn't need that you would need to talk about malicious use if the pollution exclusion covered it though because you could have exclusions that have some overlap that mess does not necessarily fatal it's not fa but each you would not need that exclusion if the chemical causing injury were already excluded by the pollution exclusion it's not just some overlap you don't need it at all and that's not how policies  understand so if you have a pollutant and it injure somebody but the pollutant was where it was supposed to be there's coverage and the exclusion doesn't apply that is correct that what that would be my argument here but specifically in this context by two minutes was right in how it looked at things by two minutes did not do what it is that been alleged by the court below to do which is to find out the purpose of the pollution exclusion and then go forward by two minutes went straight to the dictionary and used the rules of textual analysis which is what we say should continue here because we'd end smith use the rules of textual analysis and the court below did not i am however out of my time i've saved five minutes for rebuttal and will come back then so i can get my colleague his time if you don't  court authority as noted by the record your by your honour's most recently the georgia farm bureau mutual insurance company matter versus smith it's a two thousand and sixteen georgia's supreme court case mr fielding of those those cases all involved a general liability policy and that's correct your honor with the pollution exclusion director on now in this case we have not just a general liability policy but which provide coverage for injuries to the employees specifically any claims under the federal employees liability act right that's correct john nothing like that in any of those other cases  let me just read it says that bottle injury first of all is defined as including an occurrence which is an accident including continuous or repeated exposure to  occupational dizzee ease again including injuries that arise durst during the course of the employment which involve continued exposure to harmful conditions  now you say then that coverage in this case is eliminated because of the pollution exclusion correct dr so i'm assuming that this additional coverage just i feel a coverage  think there is additional coverage or additional pay now i'm what i'm struggling to understand is just want did the employer get when he purchased coverage for injuries to employees are arising out of the course of their employment including occupational disease which would include continued exposures to conditions here we're ensuring a railroad i'm  sure there are all kinds of irritants and harmful substances that may have that the employees may be exposed to which could cause occupational disease correct apply if the pollution exclusion covers all of strikes in other words what did the employer get for paying this additional money if you're excluding exposure to harmful conditions  the environment what would you what would you be covering you would be covering if through touching something through that would cause an occupational disease hypothetically i've been trying to think of the ones that i can exposure exposure to dust and other guys but i can't think of and it seems to me that the majority of all of those occupational diseases would be caused by too so what i'm wondering is wouldn't it be reasonable for the railroad that bought this coverage for its employees to assume that this pollution exclusion absolute pollution exclusion here in the rest of the general liability reasonable conclusion that you got paid the money for it and so that the otherwise he's not getting much for what he paid for a seat where you are the district court actually dealt with that and he said that the policy provides what the policy provides coverage as is providing some actually an additional form of insurance isn't it but the f l y coverage is subject to the exclusion for pollution and no where in the pollution  g many of the claims that would be that i'm paying to have insurance for occupational disease claims arising out of exposure to contaminants and injurious substances in the atmosphere or environment  silicosis those kinds of things but your honor it to you to determine what your insurance policy covers and this it we're not talking even about a homeowner we're talking about business you look at the policy and say what does it say and you can look at other schools in this policy and they will say that they are subject that this is not subject to feel like lines the pollution exclusion contains no he was you know how the term except the georgia cases do not include any part of policy that includes additional coverage for workers and which covers injuries to workers  in the sense of continued exposure to injuries elements yada i will admit the georgia supreme court has not addressed that exact issue but in the george mitchell smith case in the reid case the georgia supreme court has been pretty adamant that what you do is you look at the language of the policy and you apply the language of the policy and that's the only place that you have to go and the only place case but there their argument as i understand it is a very technical one but it's one that makes you think nonetheless the argument as this bitumen is dealt with the words release and discharge and found that those who are dreamt big us the subsequent georgia supreme court opinions deal with the term pollute and not with what release or discharge  those two decisions do not affect the ambiguity holding or bitumen is and finally it follows that bitumen is still controls on the issue of what release and discharge means what is the response gesture and i would respect disagree if you look at the status of the pollution exclusion law at the time but two minutes came down there was a debate and it was of when i was i did a fair and a lot of these cases when i was younger lawyer there was coverage there was pollution exclusions and insurance policies and they would say we do not insure pollution but we will insure it whether with sudden if it was sudden an accident this was in this came into play in the one nine hundred seventy s circle came into play and other large environmental risk started occurring there was tremendous amount of litigation as to what does sudden mean does sudden issued the opinion was one of the first cases they came down and said sudden does not have to have a temporal element because we are going to look at this relook at the language of the policy that was focused on the methods of traditional pollution so you would have a large the landfill that was put in place i think this landfill that was in the clawson case occurred just north of jacksonville florida and you know down your way across and did the pollution escape so they're talking about traditional pollution now that changed when in one thousand nine hundred five the industry started putting in absolute pollution exclusions the petunias case was looking back and it followed the bituminous from liabilities associated with environmental contamination bituminous contrary position that the clause it's kluges coverage for a consumer's claim for damages arising out of the intended use  or by carbon monoxide that would never apply in this toward the end of the the tunas decision if that is so that is the thinking that they are using when they are issuing the ruling well in two thousand and eight the absolute pollution exclusion is interpreted by the georgia supreme court and they completely reject that analysis it's a five to two decision justice carli and justice one staying descended but they say no it's says what it says and we're going to apply it as it is written essentially rejecting the traditional environmental pollution limitation that the petunias court relied upon to reach its decision so if we then take that and so it's a fab the two decision and read and then you go forward to the smith case where the georgia court of appeals actually went the other way and the georgia supreme court came down seven zero and said no you read the terms of the policy and you apply the terms the policy is written as jordan essentially i would say that the petunias case was based on a reading of traditional environmental pollution and clawson and in fact it relied significantly on the court's decision to clawson that may be a way to read it but there's also a different way of looking at by two minutes and that is that it just applied the rule of ambiguity which is still viable in georgia law that if a term is truly ambiguous in a policy construe it against the drafter who is usually the insurance company and the argument is that neither read nor smith involved a determination of what release or disperse or discharge georgia supreme court cases that have been that have addressed not necessarily the georgia supreme court but georgia court of appeals a federal district court yes your honor there was a federal district court case it was from judge duffy and it is racetrack patrolling i believe  and i could be wrong side i don't want to but i believe racetrack prefer petroleum and i will also i think that site in our papers i am trying to right now whether it's done specifically with those i think the district court got it right and i recognize my time is up but if you go back and read judge treadwell's decision it was you don't have to look to a dictionary to determine what discharge disposal release escape means i know but the problem is that that's not what by two minutes did by two minutes did look at canaries to do exactly that that's correct and the georgia supreme court says you don't have to anymore if the terms are unambiguous in the georgia farm bureau smith case  honor thank you if i may address a few points that have just been made the first of all with regard to the by two minutes court and the influence of the earlier georgia supreme court decision clawson claassen did what by two minutes did claassen did not ru the ground that we've got something to do with pollution so let's think about generally what we think pollution coverage could be claassen applies the strict textual analysis it opened the dictionary and looked at sudden and looked to see whether or not there was an ambiguity which it then found there was and it applied that rule of construction so by two ministers follow the same approach to follow what i believe your honour's have suggested is a very technical approach and indeed the technical approach is then what the courts in read and smith did because they said generally thinking we can see why people you know might not think that the lead paint in a house is a pollutant or carbon monoxide from a space heater but we're going to look at the words and the words pollutant are defined in these policies different than the general belief so we're going to go with as they are used in the contract to be very broad to be irritant in contaminant well it is our view as an insured that that is a fine thing to do but that we need to look at the entire pollution exclusion to consider if it applies it is not enough to do as we contend the district court did just see that pollution is broad and make a declaration that the purpose of the pollution exclusion is to absolutely exclude claims for injuries caused by pollutants that at the order which is documentary forty three at fifteen that is exactly what we've been accused of doing by evanston trying to think of the purpose of the pollution exclusion we are not doing that we are looking at the exact words and if you're going to have a very broad definition of pollutant in a policy that is supposed to apply by its ensuring agreement and definitions to exposures to substantially similar harmful conditions then it is not surprising that other words in that exclusion may have a limiting effect so they did not write a pollution exclusion that said we exclude all injuries caused by pollution that is not what this says that is action essentially says by saying we have a very broad list of terms beyond the discharge dispersal release escape migration to include inhalation contact exposure to why why do you think that the georgia supreme court and read never mentions the rule of construction that an insurance exclusion should be given a narrow construction and construed liberally or against the insurer on this it's clear on equivocal i do not know what was going through their head but i think what they said is that it was clear and unequivocal that the definition of pollutant explain it applied very very broadly and we at this point after the smith case came that mr flowers to recover on the recover damages from sam's will railroad there was a settlement yes and evanston was present but did not participate in funding of the settlement and that's what you're does what you petroleum case which has a different pollution exclusion and looking at that case it expands much broader than does ours here to include coverage basically two exposures because you had individuals working at a gas station exposed to i believe it was benzene they could have written a policy like that they chose not to and so having made that choice they did they do not under the rule of interpret a contract as a whole which is a statutory rule in georgia under thirteen to two subpart four they cannot now make that here so if there are no further questions or are no further questions thank you and that