Evanston Insurance Company v. Michelle Germano

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cv-00312-RAJ-TEM. Copies to all parties and the district court/agency. [999067970].. [11-2082]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2082

EVANSTON INSURANCE COMPANY,
Plaintiff - Appellee,
v.
MICHELLE GERMANO; DENNIS JACKSON; SHARON JACKSON; JASON
DUNAWAY; LISA DUNAWAY, individually and on behalf of all
others similarly situated,
Defendants – Appellants,
and
HARBOR WALK DEVELOPMENT, LLC; THE PORTER-BLAINE CORP.;
GENESIS GROUP, INC.; WERMERS DEVELOPMENT, INC.; CLARKWHITEHILL ENTERPRISES, INC.; VENTURE SUPPLY, INC.; TOBIN
TRADING, INC.; TRADERSCOVE CORP., d/b/a The Henin Group;
PREMIER INTERNATIONAL REALTY, INC., d/b/a The Henin Group;
INTERNATIONAL PROPERTY INVESTMENTS OF CENTRAL FLORIDA, INC.,
d/b/a Henin International Services; HIGGERSON-BUCHANAN,
INC.; M&M CONTRACTING; P&P SKILLED CONTRACTORS; WORK
COMPANY, DRYWALL & PLASTER; JEROME HENIN, individually;
DAVID DANIELS, individually,
Defendants.
-----------------------------------------NATIONAL ASSOCIATION OF HOME BUILDERS,
Amicus Supporting Appellants.

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Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cv-00312-RAJ-TEM)

Submitted:

March 12, 2013

Decided:

March 20, 2013

Before SHEDD, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Imprevento, BREIT DRESCHER IMPREVENTO & WALKER, P.C.,
Virginia Beach, Virginia, for Appellants.
R. Steven Rawls,
Rebecca C. Appelbaum, BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP,
Tampa, Florida; Richard A. Saunders, FURNISS DAVIS RASHKIND AND
SAUNDERS, P.C., Norfolk, Virginia, for Appellee.
David S.
Jaffe, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C.,
for Amicus Supporting Appellants.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants appeal the district court’s order granting
summary

judgment

(“Evanston”)
coverage

and

under

in

favor

of

declaring
the

Evanston

that

applicable

they

Insurance

are

not

commercial

Company

entitled

general

to

liability

(“CGL”) insurance policies for alleged drywall-related damages
to their homes and persons.
excluded

coverage

for

In pertinent part, the CGL policies

any

damage

stemming

from

“pollutants,”

which were defined as “any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapor, soot, fumes,
acids,
The

alkalis,

district

chemicals,

court

electromagnetic

concluded

that,

fields

under

and

Virginia

waste.”

law,

the

sulfuric gases emanating from the Chinese-manufactured drywall
were

“pollutants”

under

the

language

of

the

policies

and

therefore declared that Appellants were not entitled to recover
any damages stemming therefrom.

Appellants filed this appeal,

challenging the district court’s interpretation of the policies.
While

the

appeal

was

pending

in

this

Court,

the

Supreme Court of Virginia, in response to questions certified to
it by this court in another appeal, decided that sulfuric gas
released by defective drywall was a “pollutant” under the terms
of an identically phrased insurance policy also controlled by
Virginia law.
(Va. 2012).

TravCo Ins. Co. v. Ward, 736 S.E.2d 321, 328-30
Both Evanston and Appellants agree, and we concur,
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that the decision in TravCo warrants affirmance of the district
court’s judgment in this appeal.
dispense

with

oral

argument

Accordingly, we affirm.

because

the

facts

and

We

legal

contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED

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