     Case: 19-60875      Document: 00515510476         Page: 1    Date Filed: 07/31/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                        July 31, 2020
                                    No. 19-60875
                                  Summary Calendar                     Lyle W. Cayce
                                                                            Clerk


BURROUGHS DIESEL, INCORPORATED,

               Plaintiff - Appellant

v.

THE TRAVELERS INDEMNITY COMPANY OF AMERICA,

               Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:18-CV-48


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The plaintiff sued its insurance company for breach of contract, breach
of good faith and fair dealing, and tortious breach of contract due to the
company’s failure to pay a claim.             The district court entered summary
judgment in favor of the defendant, concluding that an exclusion in the policy
applied. We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-60875
              FACTUAL AND PROCEDURAL BACKGROUND
      On October 14, 2016, over 5,000 gallons of hydrochloric acid leaked from
a storage tank in Laurel, Mississippi, on property adjacent to that owned by
the plaintiff, Burroughs Diesel, Incorporated (“BDI”). The acid was a liquid,
but it quickly created a cloud that traveled across the street and engulfed BDI’s
property.   According to BDI, this cloud caused extensive damage to its
buildings, vehicles, inventory, tools, machines, and equipment. BDI promptly
reported the loss to its insurance company, Travelers Indemnity Company of
America. Following this report, two Travelers adjusters separately went to
BDI’s property to investigate BDI’s claim of loss.        Travelers retained a
professional engineer to assist in the investigation. That engineer concluded
that the hydrochloric acid did in fact damage BDI’s property. Nonetheless,
Travelers denied coverage, relying on pollution exclusion in BDI’s insurance
policy.
      Over the next year, BDI continued to request that Travelers pay the
claim and Travelers continued to deny coverage. After Travelers issued a final
denial of coverage, BDI brought suit in the United States District Court for the
Southern District of Mississippi, seeking coverage under the policy and other
relief. Both parties filed motions for summary judgment. The district court
held that BDI’s alleged damages were “excluded from coverage by the policy’s
pollution exclusion,” and that BDI failed to demonstrate that any exception to
the pollution exclusion applied.     The district court entered judgment for
Travelers, dismissing the suit. BDI appealed.


                                 DISCUSSION
      We review a district court’s granting a summary judgment de novo.
Federal Ins. Co. v. Singing River Health Sys., 850 F.3d 187, 194 (5th Cir. 2017).
Summary judgment is appropriate if the “movant shows that there is no
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                                 No. 19-60875
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “A genuine dispute as to a material
fact exists if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347,
350 (5th Cir. 2014) (quotation marks omitted). All the facts and possible
inferences are viewed “in the light most favorable to the nonmoving party.”
State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC, 751 F.3d 684, 688
(5th Cir. 2014). Because this is a diversity case, we apply the substantive law
of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Mississippi is that state.
      Mississippi courts considers the interpretation of an insurance policy to
be a question of law. LogistiCare Sols., 751 F.3d at 688. BDI bears the burden
of proving its right to recover under the policy; Travelers has the burden to
prove the applicability of a policy exclusion. See Tuepker v. State Farm Fire &
Cas. Co., 507 F.3d 346, 356 (5th Cir. 2007). The district court concluded that
once the insurer proved the applicability of an exclusion, the insured then
would have the burden to establish a relevant exception to the exclusion.
Although we have not discovered controlling Mississippi law to support such
burden shifting, we conclude that is the most reasonable understanding of how
state courts would proceed. We will do the same.
      BDI argues that the district court erroneously determined that an
exclusion to coverage in the Travelers policy applied. As we analyze the policy,
we must follow Mississippi law that unambiguous provisions in an insurance
policy be interpreted “exactly as written.” See George v. Miss. Farm Bureau
Mut. Ins. Co., 168 So. 2d 530, 531 (Miss. 1964).
      The necessary progression through the policy terms is this. The policy
required Travelers to “pay for direct physical loss of or damage to Covered
Property caused by or resulting from a Covered Cause of Loss.” Excluded from
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                                 No. 19-60875
coverage were losses caused by “pollution,” which is described in the policy as
“[d]ischarge, dispersal, seepage, migration, release or escape of ‘pollutants.’”
Then an exception to the exclusion arises, which says there is coverage if “the
discharge, dispersal, seepage, migration, release or escape is itself caused by
any of the ‘specified causes of loss.’” Travelers agreed to “pay for the loss or
damage caused by such ‘specified causes of loss.’”
      The definitions section gives us the final required provisions.       The
“Specified Causes of Loss” include, among many others, “smoke (including the
emission or puff back of smoke, soot, fumes or vapors from a boiler, furnace or
related equipment).” “Pollutants” are “any solid, liquid, gaseous or thermal
irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
chemicals, waste and any unhealthful or hazardous building materials.”
Whether “smoke” as a specified cause of loss overcomes the inclusion of “acids”
as an excluded pollutant is our only issue.
      Travelers agrees that BDI’s property was covered by the policy. “Acids,”
at least generally, clearly are excluded pollutants. BDI argues that the cloud
that resulted from the release of the hydrochloric acid constituted “smoke,”
which is a “specified cause of loss.” The term “smoke” is not defined in the
policy. BDI argues that because there is more than one dictionary definition
of “smoke,” the term is ambiguous and should be resolved in favor of coverage.
      The controlling Mississippi law says policy terms are to be understood
by “applying the ‘ordinary and popular meaning’ to any undefined terms.”
Noxubee Cnty. Sch. Dist. v. United Nat’l Ins. Co., 883 So. 2d 1159, 1165 (Miss.
2004)(Graves, J.). “Ambiguities exist when a policy can be logically interpreted
in two or more ways, where one logical interpretation provides for coverage.”
United States Fid. & Guar. Co. of Miss. v. Martin, 998 So. 2d 956, 963 (Miss.
2008). According to BDI, when the liquid acid leaked, it “turned into gas
particulate upon contact with the ambient heat/humidity and formed a white
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                                  No. 19-60875
smoke cloud of [hydrochloric acid] gas particles suspended in water vapor (gas)
that traveled across the street.” Looking for a dictionary definition that would
at least create some ambiguity about the meaning of “smoke,” BDI latches onto
a secondary one in one dictionary that defines it as “a suspension of particles
in a gas.”1
      We do not interpret state law to mean it was enough to locate some
definition that fails to focus on smoke resulting from combustion. Instead, by
using dictionaries, we are seeking the ordinary, popular, or logical meaning of
“smoke.” It is the first definition in that same dictionary: “the gaseous products
of burning materials.”1
      Because BDI failed to prove that an exception to the policy’s pollution
exclusion applies, the district court did not err by granting Travelers’ motion
for summary judgment on the issue of breach. Furthermore, because BDI
cannot establish the existence of coverage for its claimed damages under the
policy, it cannot recover on its claims of bad faith. See Stubbs v. Miss. Farm
Bureau Cas. Ins. Co., 825 So. 2d 8, 13 (Miss. 2002). That means the district
court did not err by entering summary judgment in favor of Travelers.
      AFFIRMED. The motion by BDI’s counsel to withdraw is GRANTED.




      1.Smoke, MERRIAM-WEBSTER, https//www.merriam-webster.com/diction
      ary/smoke (last visited by the plaintiff on Feb. 25, 2020).
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