                                                                [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-12023               FILED
                                        Non-Argument Calendar U.S. COURT OF APPEALS
                                      ________________________ ELEVENTH CIRCUIT
                                                                 NOVEMBER 3, 2011
                                                                    JOHN LEY
                                D.C. Docket No. 1:10-cv-02162-WSD
                                                                     CLERK

RACETRAC PETROLEUM, INC.,
a Georgia Corporation,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,

                                                versus

ACE AMERICAN INSURANCE COMPANY,
a Pennsylvania Corporation,

llllllllllllllllllllllllllllllllllllllll                           Defendant - Appellee.

                                     ________________________

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

                                           (November 3, 2011)

Before EDMONDSON, WILSON, and KRAVITCH, Circuit Judges.

PER CURIAM:
      This case involves an interpretation of the commercial general liability

insurance policies that Racetrac Petroleum, Inc. (“Racetrac”) purchased from Ace

American Insurance Company (“ACE”). Racetrac was sued by two individuals

who claim they suffered personal injuries as a result of exposure to Racetrac’s

gasoline products. When ACE refused to cover Racetrac for those claims,

Racetrac sought a declaratory judgment, claiming that the policies covered their

excess liability. The district court found that Racetrac failed to state a claim for

declaratory relief upon which relief may be granted and dismissed Racetrac’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court found

that the pollution exclusion clause in the policies precluded coverage. Racetrac

now appeals.

      After carefully reviewing the record and the district court’s order, we

conclude that the court properly granted the motion to dismiss. The pollution

exclusion provision in the policies expressly excludes coverage for injuries caused

by “any substance if such substance has, or is alleged to have, the effect of making

the [air] impure, harmful, or dangerous,” including the air within a structure. As

the district court correctly found, Racetrac seeks coverage for the injured

employees’ claims that “allege that the gasoline vapor, and specifically the toxic

benzene contained in it, made the air they inhaled impure, harmful, and dangerous,

                                           2
which resulted in their claimed physical injuries.” Such claims fall squarely

within the policies’ pollution exclusion.

      We also agree with the district court that the pollution exclusion does not

violate Georgia public policy since the liability insurance policies at issue are

primarily intended to provide Racetrac with coverage for the countless other risks

associated with operating convenience stores.

      AFFIRMED.




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