Evanston Insurance Company v. Michelle Germano, No. 11-2082 (4th Cir. 2013)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2082 EVANSTON INSURANCE COMPANY, Plaintiff - Appellee, v. MICHELLE GERMANO; DENNIS JACKSON; SHARON JACKSON; JASON DUNAWAY; LISA DUNAWAY, individually and on behalf of all others similarly situated, Defendants Appellants, and HARBOR WALK DEVELOPMENT, LLC; THE PORTER-BLAINE CORP.; GENESIS GROUP, INC.; WERMERS DEVELOPMENT, INC.; CLARKWHITEHILL ENTERPRISES, INC.; VENTURE SUPPLY, INC.; TOBIN TRADING, INC.; TRADERSCOVE CORP., d/b/a The Henin Group; PREMIER INTERNATIONAL REALTY, INC., d/b/a The Henin Group; INTERNATIONAL PROPERTY INVESTMENTS OF CENTRAL FLORIDA, INC., d/b/a Henin International Services; HIGGERSON-BUCHANAN, INC.; M&M CONTRACTING; P&P SKILLED CONTRACTORS; WORK COMPANY, DRYWALL & PLASTER; JEROME HENIN, individually; DAVID DANIELS, individually, Defendants. -----------------------------------------NATIONAL ASSOCIATION OF HOME BUILDERS, Amicus Supporting Appellants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:10-cv-00312-RAJ-TEM) Submitted: March 12, 2013 Decided: March 20, 2013 Before SHEDD, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael Imprevento, BREIT DRESCHER IMPREVENTO & WALKER, P.C., Virginia Beach, Virginia, for Appellants. R. Steven Rawls, Rebecca C. Appelbaum, BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP, Tampa, Florida; Richard A. Saunders, FURNISS DAVIS RASHKIND AND SAUNDERS, P.C., Norfolk, Virginia, for Appellee. David S. Jaffe, NATIONAL ASSOCIATION OF HOME BUILDERS, Washington, D.C., for Amicus Supporting Appellants. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Appellants appeal the district court s order granting summary judgment ( Evanston ) coverage and under in favor of declaring the Evanston that applicable they Insurance are not commercial Company entitled general to liability ( CGL ) insurance policies for alleged drywall-related damages to their homes and persons. excluded coverage for In pertinent part, the CGL policies any damage stemming from pollutants, which were defined as any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, The alkalis, district chemicals, court electromagnetic concluded that, fields under and Virginia waste. law, the sulfuric gases emanating from the Chinese-manufactured drywall were pollutants under the language of the policies and therefore declared that Appellants were not entitled to recover any damages stemming therefrom. Appellants filed this appeal, challenging the district court s interpretation of the policies. While the appeal was pending in this Court, the Supreme Court of Virginia, in response to questions certified to it by this court in another appeal, decided that sulfuric gas released by defective drywall was a pollutant under the terms of an identically phrased insurance policy also controlled by Virginia law. (Va. 2012). TravCo Ins. Co. v. Ward, 736 S.E.2d 321, 328-30 Both Evanston and Appellants agree, and we concur, 3 that the decision in TravCo warrants affirmance of the district court s judgment in this appeal. dispense with oral argument Accordingly, we affirm. because the facts and We legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. AFFIRMED 4