nontoxic very small rock particles into an adjacent stream and even though it is undisputed that the water quality of the strain was not affected by this discharge the district court nevertheless rejected insurance coverage based upon and pollution exclusion we will argue two points st the district court should have dismissed the case because it lacked jurisdiction it lector stiction because the insured is a new jersey corporation that did not purposefully avail itself of jurisdiction in the form state which is texas nd district court erred in rejecting coverage because the pollution exclusion does not apply based on his plate language and this court's precedents i'll turn st to the jurisdiction the background is that we have a new jersey insured seeking coverage for a new jersey incident from company that the insurance company the district court nevertheless held that it had specific jurisdiction based on the fact that the insured and his parent had two overlapping officers in this  well known principles of corporate separateness nd the fact of two overlapping officers is no legal significance and rd grade americans alternative agency arguments because they are are giving alternative arguments to with the district court actually did they disregard basic principles of agency law and so their agency their alternative agency argument should also be  excepted obviously the starting point of analysis is whether eastern concreted the insured not its apparent purposely directed its activities at texas such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice and the answer is no it is undisputed on this record that the insurance principal place of business and sta incorporation is new jersey there's a little bit of edging on that by great american and it's great thing but it's complaint says as much and as their complaint it's a record on appeal page one hundred and forty eight so it's undisputed that that that that is true we also know by declarations that the insured conducts all its contracting in new jersey and it also is there operating twenty concrete plans five or he's that's where it's as its employees and business is converse lee it's not registered to do business in texas it has no place of business in texas no bank accounts property etc and the insurance policy itself it is not a signatory to that policy it is only before the court as an additional named insured so much of the authority that they rely on doesn't apply because we don't have really someone who signed the contract in terms of the record per what i've just told the court is very business world right and quite often it is they're completely unrelated parties who are named insurance correct right but whoever it seems logical  particularly in the parent's o b o that whoever procured the insurance is the principal so to speak in the interpretation of the policy so basically what they are maybe this is somewhat incoherent but basically what we've got here is an arrangement where the insurance company is going after the relationship that is responsible for the insurance and and eastern you know i think there's a lot of merit to the principle agent relationship pier in part because of the overlap of the officers the person who was the principal negotiator on would have been a negotiator on the settlement the agency that procure the insurance was in dallas  is really quite a it it's a fig leaf to say that in this particular circumstances named insured was was not a participant when there's problems with going down to the subsidiary level both legally and factually in this record there's nothing to tie the subsidiary to the park policy but there is i mean it seems to me there is because you do have over overlapping officers under single business enterprise or alter ego that's right no allegation is no evidence but there is no evidence here either that it what he was acting on behalf of the eastern concrete when this policy was procured well there has because they  were agents they didn't act to benefit both entities and as a legal matter as a as a legal matter the officers in question st of all that i know this court is well aware of that we recognize that you can wear two hats and you don't necessarily because you're acting on behalf of one acting on the other and there's nothing in this record to support what the district court did buying getting in a plausible posit that that's what happened when you look at the only suburbia in the policy itself it was procured by mcgrath that the parent is the primary insured and that eastern is is an additional named and what is the parent in this situation besides the corporate number off for the for subsidiaries i'm sorry or does the parent company do any independent concrete business you know it's a holding company you're going to act like but that doesn't mean in your basic agency principles which have not been refuted by any of the authorities cited to the court in the briefing that you have an agency relationship here and there's no basis to impute what we're not where are we i think it's some weird question but does the standard corporate agency analysis apply when what you're talking about is specific jurisdiction i think it's a very interesting question your honor and i prefer the court to the decision out of the th circuit and they raise the question whether after  raise the question whether you can even use it and what i think you'll find when you look at where the u s supreme court decisions have been going on specific jurisdiction over the last decade is to move or and more demanding to show specific conduct by the party you're seeking to hail in to a foreign court so i do not think that this would be a good case for an expansive agency analysis in traditional agency principles require that you look at the conduct of the not resident company to see did it have the right to assign this authority did it have the right to control and there's simply no evidence of that leader had the right to tell its officers whether it wanted the insurance from at all from there's no basis to assume that agency relationship here they might have had nothing to do with it that case i would refer to the court we provided by twenty a j is the general accident versus old republic decision it's from another jurisdiction but the principles all apply here where you are a passive simply and named and additional named insurance you know a beneficiary of the policy there's no reason to assume either by agency or otherwise that that may have been sure that that's all they've done and if they have purposely availed themselves of the jurisdiction of the foreign state i would agree you know general context and relating to do you have a contract that says you will you will paint me as an additional sure your policy i don't think that's enough but here you have overlapping corporate officers who are clearly acting for the benefit of both you weak texas lower presumes corporate separateness that that that you have to shared officers is of no legal significance this is john t in p h c and other authorities we provided to you and we don't have any kind of agency relationship on that here's to the normal agency requirements and i think that after di miller it's even a higher burden to show that if i made that move on to coverage i'll turn it if only if the court maintains that there is jurisdiction here we believe the lower court should be reversed because the pollution exclusion does not apply by its own language and the exclusion for a chip by the rock finds in question  drilling for the definition it's condition of impurity resulting from the mixture of contact with a foreign substance also in that case to kill him and it is to render unfit for use the lead in base means made impure just quite simply nothing was rendered impure here is undisputed that the want to know what that's not the policy language pollutants means any solid liquid gases or three metal thermal air tumor contaminant including but not  all that you'll see from the record is that we have property damage pure and simple it now is that there is no it was no problem with the fish what it is is there were some little rocks got to the bottom of the phrases are used but the record wish i without any dispute whatsoever is what we're talking about are non toxic rocks that did not render the water impure you could drink the water it had no effect on the drinking it had no why did you have to pay two million dollars to clean it out your honor there was property damage pure and simple it was and there was it altered a little bit of the stream it raised some of the level so that there were problems  damage i don't know how she look at it and let me just say you're right if i may say this contrast this with this court's other holdings where you that they own this pollution exclusion to apply it did find that the policy that the exclusion did not apply and there was a duty to defend were very similar effects were in play let me clarify one thing your your argument hinges on the idea that the rock finds  not contaminants so you are not relying on interpretation of the language here waste material includes material on it we believe it's not waste material but the st thing about waste material is it has to be a contaminant i mean if you read as he does this exclusion means any and then it hit these various things hear it in our contaminant including i don't think there's any question either by the language of the exclusion or from the case law that  into various sizes used for different things and we the washing of it is just part of creating a product with those paper all well reclaiming the paper pulp then everything is reclaimed this the i would say remains again used again and again this is an original product created for an original use as film material and the final point i make about it not being contaminant if this is been a contaminant then the state of new jersey would not have allowed us to return it to the site and in fact these rocks are all over the place in this area so you to any degree sort of negates the finding of it being a contaminant the story or your honor i would submit to the court and i think the case the courts are struggling with this are have to be some limiting principles otherwise the to be some limit in principle as otherwise the chlorine in the pool the drain on the floor everything is palatial and any of rendered this property coverage to be utterly illusory because it will never apply there have to be some limiting principles and i would say that the cases that are preferred to be your own or sell it as i said and i said tax this court contrast that what was it issue there which was radioactive nuclear waste with clean sand which is what was it issue in west and or construction debris which was an issue and in re have those were st sort of but see kind of authorities by this court as not being excluded and a kerry it's a battle over definition reverse order it seems how it rain works if the court ask questions about toxicity i would point the court to the castlemaine farms case where that court applying texas law rules that the discharge of salt water onto a landowners property that property damage was barred by the pollution exclusion noting that salt water may be the most ubiquitous non toxic substance out there and the point of that really was that if you take something that could be non toxic and you put it in a place where it's not intended to receive it then that is a discharge of pollutants where you have a pollution exclusion as we do that defines pollutants to include contaminants in what is a not a contaminated if it accidentally suppose suppose you're there carrying the rock financing a truck destined for some construction location and the truck has an accident the rock finds fall on the side of the road have guy polluted the side of the road it's interesting your honor because if the yes or no the answer is no and i think what the court will look to is the ca turner case decided by the th circuit and what the court said figure out we have to take a commonsense approach of the nature of the discharge so if drain zero were spilled in an office building and someone fell that's not a discharge that one would common sensical e believe falls under the discharge you know it's a real bad example and chlorine is the other example you're on or chlorine where someone has allergic reaction in a swimming pool they said again common sense counsels against the application the pollution is in there but if you have a situation where chlorine through industrial operations is discharged into a stream that's a classic situation with the application the pollution schoolie would apply and that's what we have here the state of new jersey made a claim against eastern concrete  said in his declaration the state required removal of the rock fines because the material cause physical damage to the stream and bed by damaging the flow including areas use force trout spawning of any went on to say and also covering as well i don't know that whether it qualifies as contaminated i think it's whether it's a discharge or the presence of a contaminant barred by the pollution exclusion your honor and i would cite the case to vary the one most similar on point is a case in pollution solution your honor i would be remiss if i didn't point out to the court that eastern countries own lawyer in january of two thousand and eighteen told my client great american in discussing this claim that th the take the state has taken the position that eastern concretes accidental pumping of rock fines and settlement into spruce run violated provisions of three new jersey statues including new jersey's pollution water pollution control negative impact to a trout producing stream of a dome documented though a terence's not the language in your policy it's not but there's there's no way that deleterious mean that it's harmless which was the point of counsel to say that it didn't harm the fish what nature concrete and what the government state of new jersey was saying is just the opposite that it did of that it did affect the ecosystem we did harm the ecosystem it affected the spawning of trout it affected the f near saying it's not just when you're saying nature of the discharge you're saying that whether something is a contaminant the pens upon the nature of the substance and the and the surrounding circumcision i would say if it's a loss within the pollution exclusion it does involve those two things and the ca turner case for example this court held that common sense counsel in favor of applying the pollution issues into a release of gas inside a plastic tent to be very i mean that's what i found difficult about this case because common sense does not suggest the putting sediment were soaked in a stream is necessarily going to be polluting the stream but your honor i think it does common sense does when you're talking about the industrial discharge of a waste material into a stream these tiny rocks and settled to the bottom and had all the dirt taken off them it's little time to start into a stream that affects the wildlife there i think it is charge it is harmful it does harm the environment i think that is it's an industrial pollution event it's not my driving a truck in rocks fall out of my truck when i'm doing my stay at home project this is an industrial operation rock quarrying that has to get permit approval to do what it did and it violated these environmental this was the new jersey department of environmental protection but it is you know attention environmental agencies can do do a lot of things prophylactic claim but aren't now then it got up and in fact they precisely to prevent anything mars if this isn't clogged up the stream and block the stream and might be another situation i propose but i'm just and you're not it wasn't prophylactic lee as th for exposure arising out of seeming rabble in the court held that it did there again the nature of the discharge it was harmful to the people who breathed in the sea in the gravel and the court ruled that the pollution exclusion par coverage for those injuries as well and again be or take a rock or a case from california is the case that's closest on point cited by either of us and we would cite the court to the rossley declaration as well as to the the keil letter know the posture which this issue was raised it was raised in connection with a motion to dismiss for lack of personal jurisdiction eastern cancri did not renew that argument in connection with a summary judgment motion as a result of the standard here is different than it would be if the issue were addressed in summary judgment the standard here is whether plaintive my client made a prime a facia showing a personal jurisdiction and the laws clear that to make that prime aphasia showing my client had to allege facts which if true would support the exercise of jurisdiction the district court was required to take my client's allegations as true unless they were controverted by defendant's evidence i think is important both look at what we offered and what defendants offered in response are allegations of eastern concretes purposeful texas activities are set forth in paragraph seventeen through twenty two of our complaint that set the record at pages seventeen through nineteen we made our allegations regarding general jurisdiction in paragraph seventeen and eighteen of that complaint we made our allegations of specific jurisdiction in paragraph nineteen and twenty in those paragraphs we allege that eastern concrete engaged or authorized its parent to engage on its behalf a texas insurance broker mcgriff to advise on and obtain insurance coverage to cover eastern concretes liabilities we allege that broker mcgriff did just that and obtained coverage from my client your honor i don't think it is a question of clear because we made the allegations to support a specific jurisdiction our cause of action arises out of the texas context both in obtaining the policy and in making the claim for coverage under the possibly again was made through  broker i know great american well your honor i think it's important that if you are the party opposing or moving to dismiss you have to rebut the allegations there are no allegations offered no evidence to rebut or allegations that i would also now that we offered more than just the allegations we offered documents showing that eastern concrete told the state of new jersey that hey we have two officers and a director and here are their addresses texas  joseph maybe well i'm just quibbling with you but i think what we've got is how to characterize facts in the record that are undisputed on the side and in your honor i think undisputed facts have to be characterized in favor of the allegations that were made and accepted as true consistent with the peterson case in the moments case versus test america from the th circuit they have their own contrary again no they didn't actually they they actually were held to the  judgment of a motion to dismiss even though judgment was entered there to your honor that was the point of we have raised the issue preserve the issue for appeal we have we offer the great american policy itself has texas all over it forty six clearly are sufficient contacts by virtue of a couple of things one we believe and allege that mr joe lewis and mr pruitt were involved in securing obtaining the coverage and making the claim for coverage from texas there capital declaration that says otherwise the only doc liberation that was put in was a reply declaration provided by mr pruitt on reply i don't want i'm not sure whether it's appropriate to consider but assuming it is he disputed the general jurisdiction allegations of seventeen and eighteen that eastern concrete regularly conducted business in texas he did not dispute the specific jurisdiction allegations we made in paragraph nineteen  twenty if there was a dispute as to those allegations about what they did in connection with the pain the coverage and making the claim for coverage then they were bound to say that i think that the lead case that they point to when they say this is like th panty brandywine case versus pepco power company in the washington d c area that i'm quite familiar with this case is nothing like that case there the court ruled that the allegations there were conclusory because all the plaintiffs said  knew they were dealing with texas plaintiffs and if they pulled out of a purchase agreement they should have known there could be a domino effect on us under other prima's to which pop goes not a party that's pretty attenuated it's pretty conclusory and your honor we did the opposite of that we made and the name insured or additional named insured disputes that it's bound by those texas contacts the ready ice case though is that situation in that the policy at issue there was issued to a different name insurer than the subsidiary seeking coverage under it and of course there was no mention of the the arguments here i think that case in the general principles of agency do support the jurisdictional finding here a principle certainly has the right to decline the benefits offered on his behalf and that your honor goshen the importance of the allegations that we made in our complaint judge owen in one thousand and twenty that's why we allege that we allege that eastern concrete or s concrete on its behalf engaged in these purposeful texas activities and this cause of action that raising arises out of those purposeful cause of actions of purposeful activities in the state of texas  think that this is a clear case where both the contacts and the cause of action there's a clear connection to that which distinguishes this case from them among others the bristol and here sad case very any time that you international parties for example  that's why it's not unfair to hold this subsidiary to the contacts through the parent case the other point i would make the best foods case your honor says that if you have a dual officer and director the presumption is actually that the officer and directors acting on behalf of the subsidiary of your honor that it didn't come up but there was a twenty six asked affidavit of an submission citing two cases you have a case was the cincinnati insurance case i'm not quite sure why that was cited we're not talking about accident to the senate was cited for a reason what the patients i would close by just stating eastern concretes reasonable expectations that it told the world in the securities filings that this new jersey company it was it should have been in new jersey coroner new jersey law and there should be absolute coverage and it should not have been hailed into court into a texas says that was the reasonable expectation here but let me address some of the points that he's made on on the pollution issue itself i think this court is right if we need to have a common sense approach but the you look at the item itself which was just innocent  rock nontoxic rendered nothing impure it should not fall within pollution exclusion and if you look then also even at the circumstance what happened it was pure property damage that's what a property damage policy should apply to and in terms of the rossi declaration i think both opposing counsel myself are going to refer to the same things and we stand by it what mr rossi says is the project was not considered innes r p site no violation of the new jersey spell act which governs discharges of contaminants or any similar statute or regulation was ever alleged by the state it is now it was issued but was it issue is simply benefit out would go to word the insured and we believe absolutely they've not made their case and are it for them to refer to collateral things like a ten k or even statutes that are not in play here it is completely collateral to the courts analysis this court of course looks to the language of the exclusion as this fall within it or without it that's where this court should look if they wanted to tour after a an exclusion is a way exclude anything that any regulator ever has for any cleanup we're not going to cover that because that's pollution then that would be a different story but that's not what we have here so for them to rely on collateral things as they do and they've done throughout this case to me shows the weakness of their position you don't need to look beyond the policy itself to say that it should not apply here under the authorities that we've given you and or the principles this court has stated this is also goes to a complete and i'm going to call it out because frankly the district court did this as well this notion that our our trial court lawyer dangerous because he called deleterious is a completely false it is a red herring what he's doing is he's referring to some language from the statute that had been invoked in jersey so look at that the judge in the district court opinion said it right to one point and then said it wrong in another point this is not our lawyer speaking out against us but as i said whatever it was or was it whatever language is used to describe it whatever adjectives people pull out what is undisputed absolutely undisputed is these are not toxic rocks that did not injure any wildlife and did not render any water impure the very day this happened you could go swimming in the spruce  craig you could drink the water for it it's a water source for downstream water it never impacted any of that and in that situation the pollution exclusion should not apply let me ask a general question why know i'm sure there's other things that happen on a con at a concrete producing plant that could be toxic and i just wondered about school i'd over i have read the ten k because they have referred to it before and i don't think it to your point i think it goes to other kinds of things that might happen or situations the company might find itself and where you actually have chemicals involved not where you have clean rock going into a stream i just don't think this has agree about prime if a she but if it won't help them here for a couple reasons one the allegations they're referring to in the complaint are conclusory under the prime if they she standard that doesn't get you anywhere when you look at the evidence and presented then it's all as we have said showing no purposeful of am and by the nature see insured and if you want to see what they're basing their allegations on and by the way they make no allegations about joint officers that was a plausible posit that the district court all this is is statements based upon looking at a policy that named this is an unnamed insured insane because of that and because mcgriff is involved you must have authorized this or you missed it purposely ability yourself at the jurisdiction provided insurance to a new jersey insured and you didn't you didn't did you offer evidence of any sort in regard to jurisdiction we did your honor that's what i thought