The insured brought an action against the insurer, alleging breach of contract. The case centered on the question of whether curry is a pollutant. This case is Maxine Furs, Inc. v Auto-Owners Insurance Company, 426 Fed. Appx. 687 (11th Cir. 2011). Please note that this case is unpublished and therefore has limited precedential value.

Maxine Furs is a fur shop and it is located 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. The insurer denied coverage based on the absolute pollution exclusion clause in the policy. Maxine sued for breach of contract, the district rendered summary judgment to the insurer, and this appeal followed.

The Court of Appeals noted that the policy excludes coverage for any damage or loss caused by the discharge, dispersal, seepage, release, migration, or escape of pollutants. Pollutants are defined as any solid, liquid, gaseous, or thermal irritant or contaminant. So, the court said the question before it was: is curry aroma a pollutant?

Of course, the insured and the insurer disagreed as to whether curry aroma is a pollutant. The appeals court looked to the policy definition of pollutant and concluded that any reasonable person of ordinary intelligence would say that curry aroma is a contaminant under the circumstances of this case. A contaminant, the court went on, is something that soils, stains, corrupts, or infects by contact or association. What happened here was that the curry aroma soiled Maxine's furs. Otherwise, they would not have needed cleaning. Therefore, the court concluded that curry aroma is a pollutant as defined in the policy.

Maxine also argued 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 exclusion. The court disagreed. The court said that although Maxine contended that the aroma wafted, the court did not see how that is any different than the aroma migrating, seeping, or escaping into Maxine's and contaminating the furs.

Because the court decided that the curry aroma is a pollutant that damaged Maxine's furs in a manner that the policy excluded from coverage, the judgment of the district court was affirmed.

Editor's Note: Insureds and insurers still argue over what is a pollutant. Some courts have limited the definition to environmental contaminants but others, like this court, read the definition very strictly, and conclude that anything that irritates or contaminates is a pollutant. It may seem extreme to call curry aroma a pollutant, but this court construed the language "according to the meaning a person of ordinary intelligence would reasonably give it" and decided accordingly.

This decision tells insureds to be mindful of how the courts in their jurisdictions define pollutants. And maybe, the decision reminds insureds that are located next to certain restaurants to have separate air conditioning ducts.