                                                                                 PUBLISH
                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                            ________________________________

                                       No. 96-8362                          FILED
                            ________________________________
                                                                    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.

_________________________________________________________________

                     Appeal from the United States District Court
                         for the Southern District of Georgia
_________________________________________________________________

                                       (August 18, 1998)


Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY*, Senior Circuit Judge.




___________________________________
*
 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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