PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ASSICURAZIONI GENERALI, S.p.A.,

Plaintiff-Appellant,

v. No. 97-2160

KENNETH NEIL,

Defendant-Appellee.

ASSICURAZIONI GENERALI, S.p.A.,

Plaintiff-Appellant,

v. No. 97-2310

KENNETH NEIL,

Defendant-Appellee.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-96-3521-S)

Argued: September 23, 1998

Decided: November 18, 1998

Before WILKINSON, Chief Judge, and HAMILTON and

MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Motz wrote the

opinion, in which Chief Judge Wilkinson and Judge Hamilton joined.

_________________________________________________________________
COUNSEL

ARGUED: Edward J. Longosz, II, MILES & STOCKBRIDGE, P.C.,

McLean, Virginia, for Appellant. Gerald William Ueckermann, Jr.,

O'MALLEY, MILES, NYLEN & GILMORE, P.A., Calverton, Maryland, for Appellee. ON BRIEF: Naomi G. Beer, MILES & STOCKBRIDGE, P.C., McLean, Virginia, for Appellant.

_________________________________________________________________

OPINION

MOTZ, Circuit Judge:

An insurance company filed this diversity declaratory judgment

action to resolve questions under a general liability policy. The company sought a declaration that it need not provide defense or coverage

to its insured in two personal injury actions brought against the

insured in Florida. The district court awarded summary judgment and

attorneys' fees to the insured. Because, under Maryland law, the policy's pollution exclusion bars coverage for the injuries alleged in the

underlying tort actions, we reverse.

I.

This controversy arises out of an accident at a Holiday Inn in West

Palm Beach, Florida. A Maryland partnership in which Kenneth Neil

was a general partner owned and operated the Holiday Inn for some

time; in December 1991, the partnership sold its interest in the hotel.

Three months later, in March 1992, several hotel guests suffered carbon monoxide poisoning. The injured guests brought personal injury

actions against the new owners and Neil.

Neil's general liability insurance policy, issued by Assicurazioni

Generali, S.p.A. (Generali), an Italian corporation, covered a number

of hotels owned by the partnership, including the West Palm Beach

Holiday Inn. The stated policy period was August 1, 1991 to August

1, 1992.

The policy provides comprehensive general liability insurance for

"bodily injury" caused by an "occurrence." The policy defines "occur-

 2
rence" as "an accident, including continuous or repeated exposure to

conditions, which results in bodily injury." It defines bodily injury as

"bodily injury, sickness or disease sustained by any person which

occurs during the policy period."

The policy also provides coverage for injury arising from Completed Operations Hazards, which is defined to include:

bodily injury . . . arising out of operations . . . but only if the

bodily injury . . . occurs after such operations have been

completed or abandoned and occurs away from premises

owned by or rented to the Named Insured.

In addition, the policy contains an "absolute" pollution exclusion.

This exclusion states:

[T]he insurance provided in this Section of the Policy DOES

NOT APPLY TO:

a) The contamination of any environment by pollutants

that are introduced at any time, anywhere, in any way;

b) Any bodily injury, personal injury, property damage,

costs or other loss or damage arising out of such contamination . . . ; or

c) Payment for the investigation or defense of any loss,

injury or damage . . . related to any of the above.

It is hereby understood that the following meanings apply to

various terms used in the foregoing:

a. "CONTAMINATION" means any unclean or unsafe or

damaging or injurious or unhealthful condition arising

out of the presence of pollutants, whether permanent or

transient in any environment.

b. "ENVIRONMENT" includes any person, any manmade

objects or feature . . . land, bodies of water. . . air and

 3
any other feature of the earth or its atmosphere, whether

or not altered, developed or cultivated, including, but

not limited to, any of the above, owned, controlled or

occupied by the insured.

c. "POLLUTANTS" means smoke, vapors, soot, fumes,

acids, sounds, alkalies, chemicals, liquids, solids, gases,

thermal pollutants and all other irritants or contaminations.

Notwithstanding anything in the foregoing which may be

stated in the foregoing to the contrary, it is hereby understood and agreed that this Pollution Exclusion does not

apply to "Bodily Injury . . . caused by heat, smoke or fumes

arising from a hostile fire."

The policy requires locations covered under the policy to be identified and kept on file with the insurer. Consistent with this provision,

in January 1992, Neil notified Generali that he no longer owned or

managed the West Palm Beach Holiday Inn and sought a refund of

a portion of the policy to reflect this fact. Generali subsequently

issued a refund and an endorsement providing that coverage for the

West Palm "location" was "deleted" effective January 15, 1992; the

endorsement also stated that "All Other Terms and Conditions

Remain Unchanged."

After Neil sought, and Generali denied, defense and coverage in

the Florida suits, Generali brought this declaratory judgment action,

seeking to establish that its policy provided no coverage to Neil. The

district court granted summary judgment to Neil. The court held that

(1) the deletion of the West Palm Beach location did not deprive Neil

of coverage under the general liability provision, (2) in addition to the

general liability coverage, Neil was entitled to coverage under the

completed operations hazard provision, and (3) the pollution exclusion did not bar coverage.

Because determination of the applicability of the pollution exclusion dictates the holding of this case, we focus on that issue, assuming

without deciding that the policy would otherwise provide coverage.

We note as a preliminary matter that the parties agree that Maryland

 4
law applies in this diversity action involving an insurance contract

issued in Maryland. See Continental Cablevision of New England,

Inc. v. United Broadcasting Co., 873 F.2d 717, 720 (4th Cir. 1989);

Traylor v. Grafton, 332 A.2d 651 (Md. 1975).

II.

Neil contends that the Generali policy's pollution exclusion eliminates coverage only for injuries resulting from environmental pollution and therefore does not bar coverage for injuries arising from

carbon monoxide poisoning inside a hotel, as alleged in the Florida

cases.

The policy language providing for the pollution exclusion is, however, quite expansive. It excludes from coverage"[t]he contamination

of any environment by pollutants that are introduced at any time, anywhere, in any way." (Emphasis added). Moreover, the policy defines

"contamination" as "any" injurious condition "arising out of the presence of pollutants, whether permanent or transient in any environment." (Emphasis added). The definition of "pollutants" includes

"smoke, vapors, soot, fumes, acids, sounds, alkalies, chemicals, liquids, solids, gases, thermal pollutants and all other irritants or contaminations." Thus, carbon monoxide -- whether considered a "fume,"

"vapor," or "gas" -- plainly falls within this policy definition of "pollutant."

The policy also defines "environment" broadly to include "any person, manmade objects or feature" and "any other feature of the earth

or its atmosphere, whether or not altered, developed or cultivated."

The policy goes on to explain that the pollution exclusion does not bar

coverage for any bodily injury "caused by heat, smoke or fumes arising from a hostile fire." This provision clearly applies to accidents

that occur within a building and that do not result from what is commonly considered industrial environmental pollution. If, contrary to

its broad language, the policy intended "environment" to be confined

to geological features, this "exclusion to the exclusion" would be

unnecessary.

Neil does not suggest that this broad policy language is either

ambiguous or generally inapplicable to injuries resulting from carbon

 5
monoxide poisoning. His sole argument, as to the policy language, is

that the pollution exclusion only applies to property "owned or controlled" by him. He relies on the definition of environment in the policy:

"Environment" includes any person, any manmade objects

or feature, animals, crops or vegetation, person, any land,

bodies of water . . . air and any other feature of the earth or

its atmosphere, whether or not altered, developed or cultivated, including, but not limited to, any of the above, owned,

controlled or occupied by the insured.

(Emphasis added). At the time of the carbon monoxide poisoning Neil

had sold the hotel, and thus he no longer "owned or controlled" it. He

contends that the pollution exclusion, therefore, does not apply here.

This is an exceedingly odd claim for Neil to assert. He asks us to

hold that general liability and completed operations hazards coverage

for the hotel extended after he sold it, but the pollution exclusion

ended at that very time. His interpretation would provide Neil with

more insurance coverage for less money. It would mean that after he

sold the hotel and received premium refunds, he obtained coverage

that had been barred by a pollution exclusion when he owned the

hotel and paid the full premiums. Surely no reasonable insured or

insurer would enter into a contract that provided limited coverage for

full premium payments and far greater coverage for partial premium

payments.

Nevertheless, Neil maintains that the policy language quoted above

makes the pollution exclusion inapplicable to any"environment" not

"owned, controlled, or occupied by the insured." But the language

Neil relies upon certainly does not compel such a nonsensical interpretation. Rather, its more natural reading is to clarify that the pollution exclusion includes, but is not limited to , an environment that is

"owned, controlled or occupied by the insured." This more natural

reading not only accords with common sense and normal commercial

practice, but also is the only construction consistent with the obvious

purpose of the absolute pollution exclusion: to exclude from coverage

injuries arising from "contamination" of "any environment" by "pollutants," which are "introduced at any time, anywhere, in any way."

 6
Perhaps for these reasons, Neil chiefly relies on an alternative argument to which we now turn.

III.

Neil's principal contention, which the district court found persuasive, is that regardless of the policy language, a Maryland court would

limit the applicability of any pollution exclusion to instances of environmental pollution.

As we noted at the outset, Maryland law governs this case. Hence,

if a federal court determines that Maryland's highest court would hold

that the pollution exclusion only applies to industrial environmental

pollution and thus does not bar coverage in this case, we must so

hold. Faithful application of Maryland law would require this result

even if, as here, the policy's plain language and ordinary meaning

indicate a different result. Accordingly, we examine Maryland law on

this subject.

A.

Generally, Maryland law does not compel a court to ignore an

insurance policy's plain language and ordinary meaning. Quite the

contrary, Maryland's highest court has repeatedly noted that "[i]n the

interpretation of the meaning of an insurance contract," it "accord[s]

a word its usual, ordinary and accepted meaning unless there is evidence that the parties intended to employ it in a special or technical

sense." Cheney v. Bell Nat'l Life, 556 A.2d 1135, 1138 (Md. 1989);

see also Chantel Associates v. Mt. Vernon, 656 A.2d 779, 784-85

(Md. 1995). These general principles would seem to require that a

Maryland court defer to the policy's plain meaning, and so in this

case find the pollution exclusion applicable.

In fact, the only Maryland appellate case interpreting a pollution

exclusion in a similar context has held that the exclusion bars coverage for injuries resulting from carbon monoxide poisoning. See

Bernhardt v. Hartford Fire Ins. Co., 648 A.2d 1047 (Md. Ct. Spec.

App. 1994), cert. granted and volunt. withdrawn , 337 Md. 641

(1995). In Bernhardt, the Maryland Court of Special Appeals detailed

 7
the changes made by the insurance industry over time in pollution

exclusion clauses. Id. at 1049-50. It recognized that some courts have

interpreted this drafting history as demonstrating that the industry

may have originally intended to limit the exclusion's applicability to

industrial environmental pollution. Id. at 1050. Nevertheless, after

careful application of the interpretative principles set forth above to

the specific language of the insurance policy before it, the intermediate appellate court ruled that the policy's pollution exclusion clearly

barred coverage for injuries resulting from carbon monoxide poisoning that had occurred inside a house. Id. at 1052.

The Bernhardt court acknowledged that "the title of the endorsement -- `pollution exclusion' -- is, standing alone, ambiguous" but

noted that the language of the policy provision was"quite specific."

Id. at 1051. Quoting that language, the court explained that carbon

monoxide "was a `gaseous . . . irritant or contaminant' and constituted

`fumes' and `chemicals' within the clear language of the definition of

`pollutant.'" Id. The court pointed out that "nowhere" in the exclusion

before it did "the word `industry' or `industrial' appear" nor did the

policy draw any distinction "between intentional and non-intentional

discharge of pollutants" or "suggest that only chronic commission . . .

is excluded from coverage." Id. at 1051-52. For these reasons, the

Bernhardt court held that whatever the insurance industry's original

intent with regard to such clauses, the pollution exclusion in the policy it was construing unambiguously barred coverage for injuries

resulting from the carbon monoxide poisoning.

Because the Bernhardt analysis is equally applicable here -- in

fact, the pollution exclusion before us, on its face, even more clearly

covers injuries resulting from carbon monoxide poisoning --

Bernhardt would seem to require us to hold that the pollution exclusion bars coverage. If the Bernhardt holding were contained in a state

statute or a decision of the state's highest court, the Maryland Court

of Appeals, we would, absent extraordinary circumstances, be

required to follow it. See Norman Bernhardt v. Polygraphic Co. of

Am., 350 U.S. 198, 204-05 (1956). It is axiomatic that in determining

state law a federal court must look first and foremost to the law of the

state's highest court, giving appropriate effect to all its implications.

A state's highest court need not have previously decided a case with

identical facts for state law to be clear. It is enough that a fair reading

 8
of a decision by a state's highest court directs one to a particular conclusion. Only when this inquiry proves unenlightening, as we find it

does in this case, should a federal court seek guidance from an intermediate state court.

When seeking such guidance we defer to a decision of the state's

intermediate appellate court to a lesser degree than we do to a decision of the state's highest court. Nevertheless, we do defer. Indeed,

the Supreme Court has specifically directed:

[w]here an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that

is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide

otherwise.

West v. A T & T, 311 U.S. 233, 237 (1940); accord, Hicks v. Feiock,

485 U.S. 624, 630 n.3 (1988); see also Stoner v. New York Life Ins.

Co., 311 U.S. 464, 467 (1940) ("[F]ederal courts, under the doctrine

of Erie . . . must follow the decisions of intermediate state courts in

the absence of convincing evidence that the highest court of the state

would decide differently.").

Thus, a federal court must "present" persuasive data when it

chooses to ignore a decision of a state intermediate appellate court

that is directly on point. United States v. Little, 52 F.3d 495, 498 (4th

Cir. 1995). What a federal court, sitting in diversity, cannot do is simply substitute its judgment for that of the state court. Id.

B.

The experienced district judge undoubtedly understood the above

principles. However, we believe he miscalculated the persuasiveness

of the data upon which he relied in concluding that the Maryland

Court of Appeals would decline to follow Bernhardt. This may be

because we have never articulated what constitutes"persuasive data,"

permitting a federal court to disregard an intermediate appellate

court's holding on a question of state law. We take this opportunity

to set forth some guidelines.

 9
Generally, only if the decision of a state's intermediate court cannot be reconciled with state statutes, or decisions of the state's highest

court, or both, may a federal court sitting in diversity refuse to follow

it. When an intermediate state court decision is at odds with an existing statutory scheme or one amended after issuance of the intermediate court's decision, a federal court may justifiably surmise that the

statute presents persuasive data that the state's highest court would

not follow the intermediate court's decision. See, e.g., J&R Ice Cream

Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1271-73

(3d Cir. 1994); Ground Air Transfer, Inc. v. Westates Airlines, 899

F.2d 1269, 1275 (1st Cir. 1990) (alternative holding). Similarly, the

holdings of a state's highest court that undermine the rationale of an

intermediate appellate court decision may constitute such persuasive

data, see Dimedowich v. Bell & Howell, 803 F.2d 1473, 1482-83 (9th

Cir. 1986); this is so even if a state supreme court holding antedates

the inferior court's opinion. See Humphrey v. C. G. Jung Educ. Ctr.,

624 F.2d 637, 643 (5th Cir. 1980) (alternative holding). However, a

federal court must closely scrutinize the assertedly conflicting statutory schemes or supreme court decisions to satisfy itself that they

truly do undermine an intermediate appellate court decision directly

on point. See, e.g., Gates Rubber Co. v. USM Corp., 508 F.2d 603,

606-615 (7th Cir. 1975).

A federal court can depart from an intermediate court's fully reasoned holding as to state law only if "convinced" that the state's highest court would not follow that holding. West , 311 U.S. at 237; cf.

United States v. Ramos, 39 F.3d 219, 221-22 (9th Cir. 1994) (an intermediate court's totally unexplained holding may merit less deference). Accordingly, a federal court cannot refuse to follow an

intermediate appellate court's decision simply because it believes the

intermediate court's decision was wrong, bad policy, or contrary to

the majority rule in other jurisdictions. West , 311 U.S. at 237 (federal

courts have a duty to apply state law "rather than to prescribe a different rule, however superior [the different rule] may appear from the

viewpoint of `general law' and however much the state rule may have

departed from prior decision of the federal courts"); Malone v. Bankhead Enters., 125 F.3d 535, 540 (7th Cir. 1997) ("The mere fact that

more courts have interpreted other states' savings statutes differently

does not persuade us that the Illinois appellate courts improperly

interpreted Illinois' statute."). With these precepts in mind, we exam-

 10
ine the data that the district court relied on in refusing to follow

Bernhardt.

C.

The district court based its ruling on two factors. First, the court

noted that the Maryland Court of Appeals had granted certiorari in

Bernhardt (which was withdrawn upon settlement),"indicat[ing] that

at least a number of the judges of that Court though[t] the matter

ought to be taken up." Second, the district court determined that the

Maryland Court of Appeals' decision in Sullins v. Allstate Ins. Co.,

667 A.2d 617 (Md. 1995), led to the inescapable conclusion that the

high court "would reverse Bernhardt if that decision were to reach it

for review."

As to the first factor, although a grant of certiorari surely does indicate that some of the judges on the high court wish to hear a case, it

does not, in itself, constitute a decision on the merits. Indeed, more

frequently than not, a grant of certiorari in Maryland does not even

result in reversal by the high court. During the 1997 fiscal year the

Maryland Court of Appeals reversed, dismissed, or remanded 36 of

the civil cases it heard. Administrative Office of the Courts, Annual

Report of the Maryland Judiciary 1996-1997 Table CA-7 (1997). By

comparison, the court affirmed 40 cases. Id. Given these statistics and

the principles set forth above governing federal courts in diversity

cases, the Maryland Court of Appeals' decision to grant certiorari in

a case cannot constitute persuasive data that the high court would

choose not to follow the decision of the intermediate appellate court

in that case. Cf. Haugen v. Total Petroleum, Inc., 971 F.2d 124, 126

n.2 (8th Cir. 1992) (Minnesota Supreme Court's denial of review of

Minnesota Court of Appeals decision does not "give the court of

appeals decision any more or less precedential weight"); Guguere v.

United States Steel Corp., 262 F.2d 189, 192 (7th Cir. 1959) (Illinois

Supreme Court's grant of appeal to Illinois Appellate Court case does

not diminish precedential weight of the intermediate court's holding).

Thus, the district court's reliance on the certiorari grant was misplaced.

Sullins, upon which the district court principally relied, however,

presents a more complicated question. In Sullins , the Maryland Court

 11
of Appeals held, a year after Bernhardt, that a pollution exclusion

clause did not bar coverage for injuries resulting from exposure to

lead paint chips. 667 A.2d 617. The district court concluded that

Sullins "essentially held that the standard pollution exclusion applies

to what, in common sense, it ought to apply, viz., to pollution of the

physical environment that is the contamination of the air and water

that surround us all, not contamination of indoor living space."

To the extent the district court relied on "common sense" or what

"ought to" be the law, it erred. These do not constitute persuasive data

permitting a federal court to ignore the holding of an intermediate

state court. See West, 311 U.S. at 237; Malone, 125 F.3d at 540. For

this same reason, Neil's citation to assertedly well reasoned cases

construing the law of other states to find pollution exclusions inapplicable to carbon monoxide poisoning or other indoor contaminations,

does not assist him. Such cases do exist. See, e.g., Western Alliance

Ins. Co. v. Gill, 686 N.E.2d. 997 (Mass. 1997); Stoney Run Co. v.

Prudential-LMI Ins. Co., 47 F.3d 34 (2d Cir. 1995) (New York law);

Regional Bank of Colorado v. St. Paul Fire & Marine Ins. Co., 35

F.3d 494 (10th Cir. 1994) (Colorado law); Thompson v. Temple, 580

So.2d 1133 (La. App. 1991). They may even state the"better view."

But see State Farm Fire & Casualty v. Deni Assoc. , 678 So.2d 397

(Fla. App. 1996); League of Minn. Cities Ins. Trust v. City of Coon

Rapids, 446 N.W.2d 419 (Minn. Ct. App. 1989); see also New Castle

County v. Hartford Accident and Indem. Co., 933 F.2d 1162, 1195

nn.60, 61 (3d Cir. 1991) (listing cases and concluding "about half of

the cases hold[] that the clause bars coverage, and . . . the other half

hold[] that it does not"). But they do not provide a basis for ignoring

the Court of Special Appeals' statement as to Maryland law.

Although neither "common sense" nor the law of other states

assists Neil, if Sullins does hold that pollution exclusions can only

apply to environmental pollution, then the district court was correct.

In that case, Sullins would provide persuasive data that the Court of

Appeals would, if given the opportunity, overrule Bernhardt. The

question is: does Sullins hold this?

The "bottom line" of Bernhardt and Sullins obviously differs --

Bernhardt held the pollution exclusion applicable, resulting in a

denial of coverage for the insured, while Sullins held the exclusion

 12
inapplicable, resulting in a finding of coverage for the insured -- but

just as clearly, Sullins did not expressly overrule the Bernhardt holding. Indeed, Sullins principally relied on Bernhardt in recounting the

history of the pollution exclusion, citing Bernhardt no less than four

times. See Sullins, 667 A.2d at 622. This is noteworthy because the

Maryland Court of Appeals does not indiscriminately or frequently

cite opinions from the Court of Special Appeals; for example,

although Sullins relied on multiple cases both in Maryland and

throughout the country, it referred to only two other cases from the

Court of Special Appeals, and cited each a single time. It seems

unlikely that Sullins would have so heavily relied on Bernhardt, without any qualification, if it disapproved of Bernhardt. However,

because Sullins depended on Bernhardt only for historical purposes,

this alone does not indicate approval of the holding in Bernhardt. To

determine the vitality of Bernhardt, we must examine Sullins' rationale.

Like Bernhardt, Sullins relied heavily on general principles of

Maryland law governing interpretation of insurance policies, and,

again like Bernhardt, Sullins carefully examined the language of the

insurance policy before it in applying these principles. In Sullins, the

pollution exclusion clause provided in its entirety:

We do not cover bodily injury or property damage which

results in any manner from the discharge, dispersal, release,

or escape of:

a) vapors, fumes, acids, toxic chemicals, toxic liquids or

toxic gasses;

b) waste materials or other irritants, contaminants or pollutants.

667 A.2d at 618 (quoting policy language).

Sullins first recognized that when interpreting insurance policies,

words are to be "given their customary, ordinary and accepted meaning, unless there is an indication that the parties intended to use the

words in a technical sense" and that "[a] term which is clear in one

 13
context may be ambiguous in another." 667 A.2d at 619. Applying

these principles, the Sullins court found the terms "contaminants" and

"pollutants" ambiguous in the context of the case before it, i.e., in

determining whether lead paint chips constitute a contaminant or pollutant as defined by the policy. Id. at 620. For this reason, the Court

of Appeals in Sullins determined that "the policy must be construed

against [the insurance company] as the drafter of the policy" and thus

the pollution exclusion would not bar coverage. Id.

This analysis, of course, does not compel the conclusion that the

Court of Appeals would not follow Bernhardt. The intermediate court

there found that carbon monoxide was clearly a "`gaseous . . . irritant

or contaminant' and constituted `fumes' and `chemicals' within the

clear language of the definition of `pollutant'." Bernhardt, 648 A.2d

at 1051. Thus, the exclusion in Bernhardt did not present any ambiguity to be construed against the insurer. Accordingly, if the Sullins

opinion stopped after its analysis of the policy language, notwithstanding its ultimate holding, nothing in Sullins would suggest disapproval of or disinclination to follow the intermediate court's decision

in Bernhardt in a case, like the present one, with unambiguous policy

language.

But Sullins does not stop with analysis of the policy language.

Rather, the Sullins court went on to state that the "history of the pollution exclusion supports this conclusion." Id. at 622. The court then

recounted that history, which it found demonstrated an intention by

the insurance industry "to exclude only environmental pollution damage from coverage." Id. Undoubtedly, it is these observations that led

the district court to hold that Maryland's high court would "reverse

the decision in Bernhardt."

On close examination, however, the Sullins' statements and review

of the insurance pollution's drafting history provide no persuasive

data that Maryland's high court would limit the applicability of all

pollution exclusions to injuries resulting from environmental pollution. The Sullins court, although initially somewhat unclear on the

point, ultimately explained the precise "conclusion" that it found supported by the insurance industry's intent to confine the pollution

exclusion to environmental pollution. That "conclusion" is not a general one, i.e., pollution exclusions apply only to injuries resulting

 14
from environmental pollution and not to contamination of indoor living space. Rather, Sullins found the intent of the insurance industry,

as demonstrated by the history of the pollution exclusion, to support

a very specific "conclusion," i.e. that the language of the pollution

exclusion in the case before it was ambiguous:

It appears from the foregoing discussion [of the drafting history of the pollution exclusion] that the insurance industry

intended the pollution exclusion to apply only to environmental pollution. That supports our conclusion that a reasonably prudent layperson may interpret the terms

"pollution" and "contamination" in the circumstances of the

case now before us, as not encompassing lead paint. . . .

Id. at 623 (emphasis added). This "conclusion" does not undermine

Bernhardt's holding that when a court examines language in a pollution exclusion that unambiguously applies to a cause of alleged injuries, the exclusion bars coverage of those injuries, regardless of what

the drafting history may suggest about the original intent of such

exclusions.

Although Sullins does reason, as Neil contends, that the insurance

industry originally intended pollution exclusions to be limited to environmental pollution, the Sullins court's holding rests upon the

ambiguity in the exclusion language before it and its resolution of that

ambiguity against the insurer. In contrast, the language of the pollution exclusion in Bernhardt and in the case at hand unambiguously

applies to injuries resulting from carbon monoxide poisoning.

We note that Bernhardt itself questioned whether the broad, but

clear, pollution exclusion before it was "beyond that which might be

required to meet the industry's legitimate aims," but decided that it

was "not the function of courts to rewrite the contracts of parties, even

when the enforcement of the contract as written may result in a hardship." Bernhardt, 648 A.2d at 1052. This conclusion is dictated by a

long series of Maryland Court of Appeals' cases. See, e.g., State v.

Glazer, 594 A.2d 138, 146 (Md. 1991); Canaras v. Lift Truck Services, Inc., 322 A.2d 866, 873 (Md. 1974); Compania de Alstal S.A.

v. Boston Metals, Co., 107 A.2d 357, 372 (Md. 1954). Given this

principle and that Sullins expressly follows the same contract inter-

 15
pretation analysis as Bernhardt, it seems unlikely that the Maryland

Court of Appeals would rewrite an unambiguous pollution exclusion

either.

For these reasons, we believe Sullins does not provide persuasive

data that the Maryland Court of Appeals would refuse to follow

Bernhardt. Since Neil offers no other persuasive data that Bernhardt

does not accurately state Maryland law, we must follow it and hold

that the pollution exclusion bars coverage for the injuries allegedly

caused by carbon monoxide poisoning.

IV.

We reverse the district court's grant of summary judgment to Neil,

vacate its awards of attorneys' fees to Neil for services rendered this

action and as in the underlying Florida tort suits, and remand the case

so that the district court can enter an order granting summary judgment to Generali.

REVERSED AND REMANDED

 16