                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0391n.06
                                                                                             FILED
                                            No. 10-5232                                  JUNE 9, 2011
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


CERTAIN UNDERWRITERS AT LLOYD’S                    )
OF LONDON,                                         )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
NFC MINING, INC.; CLARK D. PERGREM;                )   EASTERN DISTRICT OF KENTUCKY
JESSE L. RUDD,                                     )
                                                   )
       Defendants-Appellants.                      )


       Before: BATCHELDER, Chief Judge; ROGERS and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. After residents of Floyd County, Kentucky sued NFC Mining,

claiming the company damaged their homes, Certain Underwriters at Lloyd’s of London followed

suit, literally. Underwriters filed a second lawsuit trying to establish that NFC’s insurance policy

did not cover the company’s potential liability to the residents. The district court awarded partial

summary judgment to Underwriters. Because NFC pursues only one point presented and properly

rejected below and because it failed to raise its other appellate arguments below, we affirm.


                                                  I.


       NFC prepares and transports coal in Floyd County. A group of residents sued NFC and

several of its officers and shareholders in state court, seeking injunctive relief and damages from the

coal dust and noise emanating from the company’s coal operations.
No. 10-5232
Underwriters at Lloyd’s v. NFC Mining

        Underwriters responded by filing a lawsuit in federal court seeking a declaration that NFC’s

insurance policy with Underwriters did not cover this potential liability. After some discovery,

Underwriters and NFC each requested summary judgment. The district court granted some relief

to each party, holding that a pollution exclusion barred coverage for coal dust but not for noise.

Under the court’s interpretation, then, the insurance policy gave NFC coverage for noise-related

liability but not coal-dust related liability. Only NFC appealed.


                                                   II.


        NFC first presses the one argument raised and rejected below—that it reasonably expected

the contract to insure against damage from coal dust and that the district court’s interpretation of the

insurance contract should have respected those expectations. The argument, which is premised on

the language of a certificate of insurance Underwriters filed with a state agency, falters at both steps.

NFC could not reasonably think that a certificate of liability insurance, as opposed to the insurance

contract itself, would confer coverage for coal dust damages. NFC did not sign or approve the

certificate; Underwriters filed the certificate with the State. Even then, moreover, the certificate says

nothing about this issue. It does not mention the terms of coverage or the coverage limit, except to

say that the policy’s coverage is consistent with state law.


        Even had all of this not been true, even in other words if NFC had reasonably anticipated that

the policy would cover damages caused by coal dust, the language of the exclusion defeats the

company’s claim (and expectation). We break no new ground in holding that the language of an


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No. 10-5232
Underwriters at Lloyd’s v. NFC Mining

insurance policy, not an insured’s expectations, controls disputes over the meaning of a policy. In

this instance the language of the exclusion is straightforward and inconsistent with NFC’s position.

See Woodson v. Manhattan Life Ins. Co. of N.Y., 743 S.W.2d 835, 839 (Ky. 1987); Consol. Am. Ins.

Co. v. Anderson, 964 S.W.2d 811, 814–15 (Ky. Ct. App. 1997). The pollution clause excludes

injuries or damages caused by “any solid, liquid, gaseous, or thermal irritant or contaminant

including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste,” R.42-16 at 8, which

includes coal dust, a solid irritant (to the eyes, nose or lungs). Cf. U.S. Fidelity & Guar. Co. v. Star

Fire Coals, Inc., 856 F.2d 31 (6th Cir. 1988). The clarity of the exclusion forecloses NFC’s resort

to expectations about what the contract did or did not cover.


        NFC switches gears, arguing that the general coverage provision applies and that the

pollution exclusion never became part of the insurance contract in the first place. But NFC failed

to raise the argument below, thereby forfeiting it. See Barner v. Pilkington N. Am., Inc., 399 F.3d

745, 749 (6th Cir. 2005). Making matters worse, NFC submitted to the district court the declarations

page of the version of the contract that included the pollution exclusion. The company’s arguments

below assumed (if not conceded) that the insurance contract included the exclusion. A claimant

cannot present one version of a contract to a district court, then invoke another for the first time on

appeal. NFC compounded this forfeiture by insufficiently developing the argument on appeal, opting

merely to observe that the exclusion was not signed and that contract modifications must be

supported by consideration, two seemingly unrelated propositions. See Northland Ins. Co. v. Stewart

Title Guar. Co., 327 F.3d 448, 452 (6th Cir. 2003).


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No. 10-5232
Underwriters at Lloyd’s v. NFC Mining

       Underwriters, we must acknowledge, may not have noticed NFC’s failure to make this

argument below. (Their brief ambiguously “adopts the argument above” in response to this

particular claim, and just one of the arguments “above” turns on forfeiture.) The point makes no

difference because NFC’s new argument has no merit to it anyway. Contrary to NFC’s position,

Kim Hardy, the insurance broker, did not testify that a pollution exclusion did not exist; she said she

did not know whether one existed and would need to see the policy to say one way or another. While

NFC correctly observes that contract modifications must be supported by consideration, the company

gives no reason to think that the exclusion was a unilateral modification as opposed to a negotiated

one.


       NFC’s next two arguments—that the pollution exclusion is void as against public policy and

that Underwriters’ endorsement and submission of a certificate of liability insurance modified the

contract—do not get off the ground. NFC forfeited both arguments by failing to raise them below,

and this time Underwriters clearly noticed and clearly claimed forfeiture.


                                                 III.


       For these reasons, we affirm.




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