PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-8362 FILED
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U.S. COURT OF APPEALS
D.C. Docket No. CV193-033-DHB ELEVENTH CIRCUIT
08/18/98
THOMAS K. KAHN
CLERK
BOARDMAN PETROLEUM, INC. d.b.a.
Red & Jack Oil Company,
Plaintiff, Counter-Defendant,
Appellee,
versus
FEDERATED MUTUAL INSURANCE
COMPANY,
Defendant, Counter-Claimant,
Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 18, 1998)
Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY*, Senior Circuit Judge.
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*
Honorable Donald P. Lay, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
PER CURIAM:
In our prior opinion in this case, Boardman Petroleum Inc. v. Federated Mutual Insurance
Co.,
119 F.3d 883 (11th Cir. 1997), we certified the following questions to the Supreme Court of
Georgia:
(1) What is the appropriate trigger of coverage under general liability policies
such as the ones at issue in this case?
(2) Does an “owned or rented” coverage exclusion in general liability
policies such as the ones at issue bar coverage of all or a portion of
an insured’s claims for indemnification for the cost of a state
ordered contamination clean-up when that clean-up involves soil
and groundwater contamination which has not yet damaged
surrounding soil and/or groundwater?
The Supreme Court of Georgia did not reach the trigger of coverage issue in the first
certified question because it found that the owned or rented exclusion is dispositive.
The Supreme Court of Georgia has answered the second certified question as follows:
Where there is no evidence of a reasonable present threat of harm to third-party
property, coverage is barred. [Boardman Petroleum, Inc. v. Federated Mutual
Insurance Co., Case No. S97Q1883, Supreme Court of Georgia (February 23,
1998).] Any other construction is contrary to the policy language and would
render the owned or rented exclusion meaningless because in almost every case
the policyholder could simply contend that contamination on its own property
presents a threat of future harm to off-site property. . . .
[Therefore,] . . . the plain language of the owned or rented property exclusion bars
coverage for indemnification for the cost of a state-ordered contamination clean-
up when that clean-up involves soil and groundwater contamination to property
owned or rented by the insured, and does not involve property of a third party,
and poses no immediate or imminent threat of off-site contamination.
Boardman Petroleum, Inc. v. Federated Mutual Ins. Co., Case No. S97Q1883, Supreme Court of
Georgia (February 23, 1998).
The district court erred in holding that the clean-up costs for contamination on
Boardman’s leased premises were covered in the insurance policy, despite the exclusion for
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damage to property that Boardman “owned, occupied or rented.” Accordingly, we reverse the
district court’s grant of summary judgment in Boardman’s favor and remand for further
proceedings consistent with this opinion.
REVERSED and REMANDED.
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