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112 F.3d 184 65 USLW 2816 CERTAIN UNDERWRITERS AT LLOYD'S LONDON, London & Hull Maritime Insurance Company Ltd., Commercial Union Assurance Company, Northern Assurance Company Ltd. 6 A/C, The Prudential Assurance Company Ltd., Ocean Marine Insurance Company Ltd., Hansa Marine Insurance Company (UK) Ltd., Vesta (UK) Insurance Company Ltd., Bishopsgate Insurance PLC, Minster Insurance Company Ltd., Plaintiffs-Appellees, v. TURNER CONSTRUCTION COMPANY, INC.
And T.C.I., Inc., Defendants-Appellants. United States Court of Appeals, Fifth Circuit. 2 This declaratory judgment action arises from a March 14, 1990, incident in which William Galbreath, a pipe-fitter for T.C.I., was injured while welding pipe at a Texaco chemical plant in Port Neches, Texas.
At the time, Galbreath and two other employees were outdoors engaged in welding two flanges onto the ends of a separated pipe. The workers were standing on scaffolding that was enclosed in a plastic tent to protect them and the pipe under repair from rain. Rags had been stuffed into the pipe to prevent chemical leakage. When the rags were removed from the pipe, either the rags or the chemical in the pipe made contact with the hot pipe that had just been welded; as a result, a cloud of phenol gas was created. Galbreath testified that he dove toward the entrance of the plastic tent to escape the gas and suffered injuries through inhalation of the gas and the fall.
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3 On January 15, 1992, Galbreath instituted a state court lawsuit for damages against C.A. Turner, T.C.I., and Texaco. Turner requested that its insurance carrier, Certain Underwriters at Lloyd's London, et al. (Underwriters), undertake the legal defense and indemnify C.A. Turner for any damages. In response, Underwriters denied that it provided coverage for the claim and denied any duty to defend. According to Underwriters, an 'absolute pollution exclusion' clause in its insurance policy excluded coverage for claims arising out of pollution-related bodily injuries.
5 This court reviews the district court's grant of summary judgment and its interpretation of an insurance contract de novo. American States Ins. Nethery,, 475 (5th Cir.1996). The parties agree that Texas law governs this case. Under Texas rules of contractual interpretation, if an insurance contract is expressed in unambiguous language, its terms will be given their plain meaning and it will be enforced as written. Co., 678 S.W.2d 936, 938 (Tex.1984).
If, however, a contract is susceptible to more than one reasonable interpretation, a court will resolve any ambiguity in favor of coverage. 10 Appellants argue that the exclusion clause is inapplicable to the welding accident because the fumes were confined to the temporary tent over the scaffolding and only one individual and no property was injured. According to appellants, the ordinary meaning of pollution encompasses only widespread releases of hazardous substances into the environment. Because the policy does not define 'pollution,' 'contamination,' or 'seepage,' they contend, the terms must be limited to their ordinary meaning. 11 Applying Texas principles of construction, we must determine whether the plain language of the pollution exclusion clause unambiguously barred coverage for injuries related to this chemical release. A Texas Supreme Court case examining analogous clauses provides a starting point for our analysis. In National Union Fire Ins.