FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 24, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14559

________________________

D. C. Docket No. 04-01170-CV-J-20-MCR

CONTINENTAL CASUALTY COMPANY,

TRANSPORTATION INSURANCE COMPANY,

TRAVELERS INDEMNITY CO.,

Plaintiffs-Counter

Defendants,

versus

CITY OF JACKSONVILLE

JACKSONVILLE ELECTRIC AUTHORITY

et al.,

Defendants-Counter

Claimants,

DUVAL COUNTY SCHOOL BOARD,

Defendant-Counter

Claimant-Appellant,

versus

CENTURY INDEMNITY COMPANY,

Defendant-Counter

Defendant-Appellee.
________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 24, 2010)

Before EDMONDSON and CARNES, Circuit Judges, and GOLDBERG, Judge.

*

PER CURIAM:

Plaintiff-School Board sued Defendant-insurance company when the latter

refused to indemnify and defend Plaintiff in a toxic tort suit. Plaintiff had

purchased land once used as a landfill, built a school on it, and allowed housing

developments to be built near it. Plaintiff was later sued. The cause of action

against Plaintiff was not based on a discharge of pollutants by Plaintiff, but was

based -- briefly stated -- on building schools on polluted land without warning

families. When sued, the Plaintiff sought indemnity and a defense; but Defendant

claimed the pertinent insurance policy excluded pollution suits. The district court

agreed and granted summary judgment to Defendant. We affirm the judgment.

This case is controlled by state law. The pertinent insurance contract has

two provisions that seem important. The insurance contract said Defendant would

pay:

Honorable Richard W. Goldberg, United States Court of International Trade Judge, *

sitting by designation.

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“all sums which [Plaintiff] shall become legally obligated to pay as damages

because of

A. bodily injury or

B. property damage

to which this insurance applies, caused by an occurrence, and the

[Defendant] shall have the right and duty to defend [Plaintiff].”

The policy included an exclusion, which barred coverage for

“bodily injury or property damage arising out of the discharge, dispersal,

release or escape of [various] pollutants into or upon land . . . but this

exclusion does not apply if such discharge, dispersal, release or escape is

sudden and accidental.”

In our view, the contract is not ambiguous. In addition, we conclude that,

even if Plaintiff is not itself a polluter, the exclusion applies: the provision is not

about who caused the pollution, but is about pollution and its effects underlying a

claim. Moreover, we conclude that the claim against Plaintiff, for which Plaintiff

seeks coverage, does “arise out of the discharge of pollutants into or upon the

land.” The claim did “arise out of the discharge of pollutants into or upon the

land” even if the Plaintiff did not place the pollutant into or upon the ground.

Furthermore, a concurrent harm argument does not get around the exclusion.

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In the tort case against Plaintiff, the alleged injury was caused by the presence of

pollutants that had been put in the land; even though the suit alleged harm from

Plaintiff’s failure to warn of the danger, had there been no discharge of pollutants

into the ground, no warning would have been needed. We have considered all of

the arguments. None of Plaintiff’s arguments persuade us that the District Court

committed a reversible error.

AFFIRMED.

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