                                                                  [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                      No. 10-13547                 MARCH 31, 2011
                                                                     JOHN LEY
                                  Non-Argument Calendar                CLERK
                                ________________________

                            D.C. Docket No. 2:09-cv-01524-RDP

MAXINE FURS, INC.,

llllllllllllllllllll                                          lPlaintiff - Appellant,

    versus

AUTO-OWNERS INSURANCE COMPANY,

lllllllllllllllllll                                           llDefendant - Appellee.

                                ________________________

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

                                      (March 31, 2011)

Before WILSON, KRAVITCH and BLACK, Circuit Judges.

PER CURIAM:

         Maxine Furs (Maxine) is a fur shop, which happens to be next door to an

Indian restaurant. Because Maxine shared air-conditioning ducts with its
neighbor, Maxine’s furs soon began to smell like curry. Maxine had the affected

furs cleaned and then made a claim with its insurer, Auto-Owners Insurance

Company (Auto-Owners). Auto-Owners denied coverage based on the absolute-

pollution-exclusion clause in Maxine’s policy. Maxine sued Auto-Owners for

breach of contract. The district court concluded that coverage was excluded and

rendered summary judgment for Auto-Owners. Maxine appeals.

                                                I.

       We review an order granting summary judgment de novo. Fanin v. U.S.

Dep’t of Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009).

       Maxine’s policy with Auto-Owners excludes from coverage any damage or

loss caused by “discharge, dispersal, seepage, migration, release or escape of

‘pollutants.’” The policy defines pollutant as: “any solid, liquid, gaseous or

thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis,

chemicals and waste.” The question we must answer is whether curry aroma is a

pollutant.

       Under Alabama law,1 a contract for insurance is governed by the general

rules of contracts. Certain Underwriters at Lloyd’s London v. Kirkland, 2011 WL


       1
         Because this is a diversity case, we apply state substantive law, which, in this case, is
the law of Alabama. Employers Mut. Cas. Co. v. Mallard, 309 F.3d 1305, 1307 (11th Cir. 2002).


                                                2
29851 at * 3 (Ala., Jan. 7, 2011) (quoting Twin City Fire Ins. Co. v. Alfa Mut. Ins.

Co., 817 So.2d 687, 691–92 (Ala. 2001)). When a policy is clear and

unambiguous, it will be enforced as written. Id. When the parties disagree on

whether the language in a policy is ambiguous, “a court should construe [the]

language according to the meaning a person of ordinary intelligence would

reasonably give it.” Id. A term in a contract is only ambiguous if it is open to

different but reasonable interpretations by people of ordinary intelligence in the

context of the policy. State Farm Fire & Cas. Co. v. Wonderful Counselor

Apostolic Faith Church, 12 So.3d 662, 665 (Ala. 2008). And if it is ambiguous,

the ambiguity is to be resolved in favor of the insured. Kirkland, 2011 WL 29851

at * 3. We turn now to the language of the policy to determine whether it is

ambiguous.

      Although Maxine’s policy excludes from coverage damage caused by

pollutants, the parties disagree that curry aroma is a pollutant. Thus, we look to

the policy’s definition of pollutant to determine whether a person of ordinary

intelligence would reasonably conclude that curry aroma is a “solid, liquid,

gaseous or thermal irritant or contaminant.”

      We do not think a person of ordinary intelligence could reasonably conclude

that curry aroma is not a contaminant under these circumstances. A contaminant is

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something that “soil[s], stain[s], corrupt[s], or infect[s] by contact or association.”

Webster’s Third New International Dictionary 491 (1986). Indeed, what

happened here is that the curry aroma soiled Maxine’s furs. Otherwise, they

would not have needed cleaning. We do not think that a reasonable person could

conclude otherwise. Accordingly, we conclude that curry aroma is a pollutant

under the policy.

      Last, Maxine argues that even if the curry aroma is a pollutant, the policy

should still cover the damage because the damage was not caused by any of the

means specified in the exclusionary clause. We disagree. Although Maxine

contends that the aroma wafted, we do not see how that is different than the aroma

migrating, seeping, or escaping into Maxine’s and contaminating the furs.

      Because we conclude that the curry aroma is a pollutant that damaged

Maxine’s furs in a manner the policy excluded from coverage, we affirm the

judgment of the district court.

AFFIRMED.




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