[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13489

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-04037-RWS

CENTRO DEVELOPMENT CORPORATION,

 Plaintiff-Appellant,

 versus

CENTRAL MUTUAL INSURANCE COMPANY, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(April 27, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Centro Development Corporation (“Centro”) appeals the dismissal of its 

complaint against Central Mutual Insurance Company for failure to state a claim 

under Federal Rules of Civil Procedure 12(b)(6). Centro filed suit against its 

insurer, Central Mutual, alleging that Central Mutual wrongly denied insurance 

coverage in reliance on the policy’s pollution exclusion. The district court 

dismissed the complaint, holding that the exclusion was unambiguous and that 

storm water qualifies as a pollutant under the policy.

We review a district court’s grant of a 12(b)(6) motion to dismiss for failure 

to state a claim de novo, “accepting the complaint’s allegations as true and 

construing them in the light most favorable to plaintiff.” Chaparro v. Carnival 

Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to state a claim 

that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 

(internal quotation omitted). 

Under Georgia law, “[a]n insurer's duty to defend turns on the language of 

the insurance contract and the allegations of the complaint asserted against the 

insured.” City of Atlanta v. St. Paul Fire & Marine Ins. Co., 498 S.E.2d 782, 784 

(Ga. Ct. App. 1998). “[I]t is only where the complaint sets forth true factual 

allegations showing no coverage that the suit is one for which liability insurance 

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coverage is not afforded and for which the insurer need not provide a defense.” 

Penn-Am. Ins. Co. v. Disabled Am. Veterans, Inc., 268 Ga. 564, 565 (Ga. 1997).

“Where the contractual language unambiguously governs the factual 

scenario before the court, the court's job is simply to apply the terms of the contract 

as written, regardless of whether doing so benefits the carrier or the insured.” Reed 

v. Auto-Owners Ins. Co., 284 Ga. 286, 287 (Ga. 2008). In the case of a pollution 

exclusion, the pollutant at issue need not be explicitly named in the policy for the 

exclusion to apply. See Ga. Farm Bureau Mut. Ins.Co. v. Smith, 298 Ga. 716, 720 

(Ga. 2016). The question in this case is whether storm water is unambiguously 

considered a “pollutant” under the insurance policy.

The policy at issue in this case defined pollutants as: “any solid, liquid, 

gaseous or thermal irritant or contaminant, including smoke, soot, fumes, acids, 

alkalis, chemicals and waste.” In Owners Ins.Co. v. Lake Hills Home Owners 

Ass’n, Inc., 57 F. App’x 415 (11th. Cir. 2002) (unpublished opinion), we held that 

storm water qualifies as a pollutant under the exact same language that is at issue 

in this case. Additionally, we have previously held that under the Clean Water Act 

“[w]hen rain water flows from a site where land disturbing activities have been 

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conducted, such as grading and clearing,” it qualifies as a pollutant. Hughey v. 

JMS Dev. Corp., 78 F.3d 1523, 1525 n.1 (11th Cir. 1996)1. 

We agree with our prior precedent that the pollution exclusion is 

unambiguous and that storm water qualifies as a pollutant under the policy. 

Therefore, the district court’s dismissal of Centro’s complaint is

AFFIRMED.

 1 Apparently recognizing the binding precedent holding that storm water flowing from land 

where land disturbing activities are being conducted is a pollutant, Centro argues that storm 

water alone (i.e. uncontaminated by silt or other contaminants) is not a pollutant. However, the 

underlying Meeks litigation (for which Centro demanded that Central Mutual provide a defense) 

did not involve such uncontaminated storm water. Rather, the underlying Meeks litigation 

involved storm water that caused silt and other contaminants from the adjacent property on 

which Centro was conducting land disturbing activities to harm Meeks’s property.

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