           Case: 17-13489   Date Filed: 04/27/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13489
                        Non-Argument Calendar
                      ________________________

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



CENTRO DEVELOPMENT CORPORATION,

                                                     Plaintiff-Appellant,

                                 versus

CENTRAL MUTUAL INSURANCE COMPANY,

                                                         Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 27, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-13489     Date Filed: 04/27/2018    Page: 2 of 4


      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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