UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WHITEVILLE OIL COMPANY,
INCORPORATED,
Plaintiff-Appellant,

v.

FEDERATED MUTUAL INSURANCE
                                                                  No. 95-2015
COMPANY,
Defendant-Appellee.

INSURANCE ENVIRONMENTAL
LITIGATION ASSOCIATION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, District Judge.
(CA-94-108-7-BR)

Argued: May 7, 1996

Decided: June 14, 1996

Before HALL, WILKINS, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Reeves Sloan, WARD & SMITH, P.A., New Bern,
North Carolina, for Appellant. Laura Jean Hanson, MEAGHER &
GEER, P.L.L.P., Minneapolis, Minnesota, for Appellee. ON BRIEF:
Buren R. Shields, III, Donalt J. Eglinton, WARD & SMITH, P.A.,
New Bern, North Carolina, for Appellant. Peter G. Lennington,
MEAGHER & GEER, P.L.L.P., Minneapolis, Minnesota; H. Mark
Hamlet, CROSSLEY, PRIOR & COLLIER, Wilmington, North Car-
olina, for Appellee. Laura A. Foggan, Stephen D. Goldman, Wil-
liam A. McGrath, Mary E. Borja, WILEY, REIN & FIELDING,
Washington, D.C., for Amicus Curiae.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Whiteville Oil Company, owns a retail Amoco gasoline
station. In February 1994, Kathy Thompson filed suit against
Whiteville Oil alleging that petroleum from the Amoco station leaked
into the sewer and that fumes from that gas permeated onto her prop-
erty. Thompson maintained that the odor forced her to close her res-
taurant and requested damages for lost "commercial and business
profits" and for mental distress. Whiteville Oil, who has several insur-
ance policies with appellee, Federated Mutual Insurance Company
("Federated"), requested that Federated defend it in the Thompson
matter. By letter dated March 25, 1994, Federated denied any obliga-
tion to defend and indemnify Whiteville Oil, asserting that Whiteville
Oil's policies do not provide coverage for environmental claims.
Whiteville Oil then filed the instant action against Federated on
numerous grounds related to Federated's failure to defend and indem-
nify it in the Thompson litigation. The district court granted summary
judgment in favor of Federated, holding that the insurance policies
issued by Federated to Whiteville Oil do not encompass the Thomp-
son suit.

Whiteville Oil holds two Federated insurance policies which are
applicable to this action, a Commercial General Liability Policy

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("CGL Policy") and an Umbrella Policy. Coverage A of the CGL Pol-
icy provides for compensatory damages arising from"bodily injury"
-- defined as "bodily injury, sickness or disease" -- or from "prop-
erty damage" -- defined as including "[l]oss of use of tangible prop-
erty that is not physically injured." J.A. at 40, 48, 51. However,
Coverage A contains a pollution exclusion which provides that Cov-
erage A does not apply to:

          (1) "Bodily injury" or "property damage" which would not
          have occurred in whole or part but for the actual, alleged or
          threatened discharge, dispersal, release or escape of pollu-
          tants at any time.

          (2) [Any expense to clean up environmental hazards.]

          Pollutants means one or more solid, liquid, gaseous or ther-
          mal irritant or contaminant including smoke, vapor, soot,
          fumes, acids, alkalis, chemicals and waste.

J.A. at 32 (emphasis added). The district court held, in a ruling not
challenged in this court, that the pollution exclusion was applicable
to the Thompson suit and that Federated therefore had no obligation
to Whiteville Oil under Coverage A. J.A. at 270-71.

Coverage B of the CGL, which does not contain a pollution exclu-
sion, provides coverage for damages "because of`personal injury.'"
J.A. at 43. Unlike Coverage A which provides for coverage based on
the harm suffered, Coverage B's applicability depends upon whether
the injuries arose from one of the enumerated offenses listed in the
policy. "Personal injury" is defined in the CGL Policy as:

          injury, other than "bodily injury," arising out of one or more
          of the following offenses:

          a. False arrest, detention or imprisonment;

          b. Malicious prosecution;

          c. The wrongful eviction from, wrongful entry
          into, or invasion of the right of private occupancy

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          of a room, dwelling or premises that a person
          occupies by or on behalf of its owner, landlord or
          lessor;

          d. [Slander];

          e. Oral or written publication of material that
          violates a person's right of privacy.

J.A. at 50 (emphasis added). The umbrella policy differs from the
CGL policy only with respect to the definition of"personal injury,"
providing in lieu of subsection c quoted above, the definition "wrong-
ful entry into, or eviction of a person from, a room, dwelling or prem-
ises the person occupies." J.A. at 75.

The sole issue raised on appeal is whether Thompson's suit for nui-
sance and trespass falls within subsection c of Coverage B of the CGL
and/or within the applicable portion of the Umbrella Policy. The dis-
trict court, applying North Carolina law, determined that the policies
did not impose upon Federated an obligation to defend Whiteville Oil
in the Thompson matter,1 J.A. at 263-76, reasoning that Thompson's
action for trespass and nuisance were not within any of the specifi-
cally enumerated "personal injury" offenses. First, the court rejected
Whiteville Oil's argument that permeating fumes constituted a
"wrongful entry," explaining that "wrongful entry" requires a threat
to the owner's possessory rights in the property and involves actual
physical entry onto another's land, J.A. at 272 ("The ordinary mean-
ing of entry involves the `actual taking of lands or tenements by enter-
ing or setting foot on them.' Webster's Third New International
Dictionary (1986)."). The district court noted that Whiteville Oil was
merely attempting to convert a property offense into a personal injury
offense to avoid the pollution exclusion applicable to Coverage A.
Second, the court rejected Whiteville Oil's contention that permeating
fumes constituted a nuisance which is covered as an"invasion of the
right of private occupancy of a room, dwelling or premises that a per-
son occupies by or on behalf of its owner, landlord or lessor,"
explaining that nuisance was not one of the enumerated offense and
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1 The instant action only involves the insurer's duty to defend because
Whiteville has successfully defended the Thompson suit.

                    4
that if the parties wished nuisances to be within Coverage B, then
they would have included that term as one of the specifically enumer-
ated offenses.2

We have carefully considered the arguments in the briefs and at
oral argument and find no reversible error. Accordingly, we affirm the
judgment of the district court on the reasoning of that court.

AFFIRMED
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2 Whiteville Oil also appeals the district court's decision to dismiss its
claims of bad faith refusal to defend and of unfair trade practices.
Because we conclude that Federated had no duty to defend Whiteville
Oil in the Thompson litigation, we agree that the district court properly
dismissed these two additional claims.

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