North Star Mutual Insurance Company v. Lyle Rodin; Darin Rodin

United States Court of Appeals
For the Eighth Circuit
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No. 24-1180
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North Star Mutual Insurance Company
Plaintiff - Appellee
v.
Lyle Rodin; Darin Rodin
Defendants - Appellants
Larry Alber
Defendant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: October 23, 2025
Filed: April 7, 2026
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Before SMITH, KELLY, and GRASZ, Circuit Judges.
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SMITH, Circuit Judge.
Larry Alber sued Lyle Rodin and Darin Rodin (collectively, “the Rodins”) in
state court alleging that a portable heater in the Rodins’ farm shop emitted dangerous
levels of carbon monoxide and seriously injured him while he was working on the

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Rodins’ farm. The Rodins’ insurer, North Star Mutual Insurance Company (North
Star), brought a declaratory judgment action against the Rodins requesting the
district court to declare that North Star was not required to defend or indemnify the
Rodins in Alber’s state court action because the policy’s pollution exclusion barred
coverage. The district court1 granted summary judgment for North Star, declaring
that North Star did not have a duty to defend or indemnify the Rodins in the state
court action. The Rodins appeal. We affirm.
I. Background
The Rodins operated a farm in Southeastern North Dakota. Alber sued the
Rodins in state court after he was injured while working on their farm. Alber alleged
that a portable heater that the Rodins placed in the farm shop emitted dangerous
levels of carbon monoxide and caused him life-altering cardiovascular and
neurological injuries.
North Star had issued a liability insurance policy (Policy) to the Rodins. The
Policy insured the Rodins from liability for bodily injuries sustained on their
property but excluded bodily injuries that resulted from pollutants. The pollution
exclusion stated:
This policy does not apply to:
. . .
1) “bodily injury” or “property damage” that results from the actual,
alleged, or threatened discharge, dispersal, seepage, migration, spill,
release, or escape of “pollutants” into or upon land, water, or air, or
2) any loss, cost, or expense arising out of any:
a) request, demand, or order that any “insured” or others test for,
monitor, clean up, remove, contain, treat, detoxify, neutralize, or
in any way respond to or assess the effects of “pollutants”; or
1 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

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b) claim or suit by or on behalf of any governmental authority
relating to testing for, monitoring, cleaning up, removing,
containing, treating, detoxifying, neutralizing, or in any way
responding to or assessing the effects of “pollutants[.]”
R. Doc. 3-2, at 88. The Policy defined “pollutant” as:
a. any solid, liquid, gaseous, thermal, or radioactive irritant or
contaminant, including acids, alkalis, chemicals, fumes, smoke,
soot, vapor, and waste. Waste includes materials to be recycled,
reclaimed, or reconditioned, as well as disposed of; and
b. electrical or magnetic emissions, whether visible or invisible, and
sound emissions.
Id. at 85.
About a month after Alber sued the Rodins, North Star filed this declaratory
judgment action against the Rodins. North Star sought a declaration that it was not
required to defend or indemnify the Rodins in Alber’s lawsuit. Specifically, North
Star asserted that the Policy’s pollution exclusion barred coverage for Alber’s claims
because Alber alleged that he was injured by carbon monoxide, which North Star
contended is within the definition of pollutant.
In the declaratory judgment action, both parties moved for summary
judgment. North Star requested the district court to conclude that the pollution
exclusion barred coverage for Alber’s claims and the Rodins requested the district
court to find the exclusion inapplicable. The district court granted North Star’s
motion and denied the Rodins’. It held that North Star did not have a duty to defend
or indemnify the Rodins in Alber’s state court action because carbon monoxide is a
“pollutant” as defined by the Policy. The Rodins appeal.

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II. Discussion
The Rodins argue that the district court erred when it granted North Star’s
motion for summary judgment. They argue that under North Dakota law, the
pollution exclusion does not bar coverage for a bodily injury claim caused by carbon
monoxide emitted from a portable heater. Alternatively, the Rodins request that we
certify the question of interpreting the pollution exclusion to the North Dakota
Supreme Court.
A. Certification to the North Dakota Supreme Court
The Rodins request that we certify the following question to the North Dakota
Supreme Court: “Under North Dakota rules of interpretation and construction, does
North Star Mutual Insurance Company’s ‘pollution’ exclusion apply to exclude
coverage for an individual bodily injury claim allegedly due to carbon monoxide
exposure caused by a portable heater being used to heat a farm shop?” They explain
that North Dakota law, which is controlling here, has not interpreted a pollution
exclusion provision. Therefore, the Rodins contend that we should certify the
question to the North Dakota Supreme Court so that it has an opportunity to address
the issue, rather than predict a holding by the North Dakota Supreme Court.
“Certification is by no means ‘obligatory’ merely because state law is
unsettled; the choice instead rests ‘in the sound discretion of the federal court.’”
McKesson v. Doe, 592 U.S. 1, 5 (2020) (quoting Lehman Bros. v. Schein, 416 U.S.
386, 391 (1974)). “Our system of ‘cooperative judicial federalism’ presumes federal
and state courts alike are competent to apply federal and state law.” Id. (quoting
Lehman Bros., 416 U.S. at 391). Thus, “[a]bsent a ‘close’ question and lack of state
sources enabling a nonconjectural determination, a federal court should not avoid its
responsibility to determine all issues before it.” Shakopee Mdewakanton Sioux Cmty.
v. City of Prior Lake, 771 F.2d 1153, 1157 n.2 (8th Cir. 1985).
On this record, we decline to certify the pollution exclusion issue. Although
the North Dakota Supreme Court has not interpreted a pollution exclusion provision,
it has provided ample guidance on how to interpret insurance policies under North

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Dakota law. North Dakota law is sufficiently clear to enable federal courts to make
a nonconjectural determination on the pollution exclusion’s enforceability.
Additionally, we note that the Rodins did not move to certify a question until
after the district court granted summary judgment in North Star’s favor. Indeed, the
Rodins did not seek certification in the district court at all, deciding instead to file
the motion in this court on appeal. “The practice of requesting certification after an
adverse judgment has been entered should be discouraged. Otherwise, the initial
federal court decision will be nothing but a gamble with certification sought only
after an adverse decision.” Perkins v. Clark Equip. Co., Melrose Div., 823 F.2d 207,
210 (8th Cir. 1987). We will grant certification after a case has been decided “only
in limited circumstances.” Id. This record is not within those circumstances.
Accordingly, we deny the Rodins’ motion to certify a question to the North
Dakota Supreme Court.
B. Interpretation of the Pollution Exclusion
The Rodins argue that the district court erred when it granted North Star’s
motion for summary judgment. Specifically, they contend that the district court erred
when it concluded that under North Dakota law, the pollution exclusion at issue
excludes coverage for Alber’s bodily injury claim that was allegedly caused by
carbon monoxide emitted from a portable heater. Upon review, we conclude that the
district court did not err.
“We review the district court’s grant of summary judgment de novo.” Lipp v.
Cargill Meat Sols. Corp., 911 F.3d 537, 543 (8th Cir. 2018). We will grant summary
judgment when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
If there is a genuine dispute, we view the disputed facts in the light most favorable
to the nonmovant. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc). “Where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no genuine issue for trial.” Id.

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(quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)). “We may affirm summary
judgment for any reason supported by the record.” Gareis v. 3M Co., 9 F.4th 812,
818 (8th Cir. 2021).
It is undisputed that North Dakota law governs this action. The North Dakota
Supreme Court has summarized its standards for construing insurance policies as
follows:
Our goal when interpreting insurance policies, as when
construing other contracts, is to give effect to the mutual intention of
the parties as it existed at the time of contracting. We look first to the
language of the insurance contract, and if the policy language is clear
on its face, there is no room for construction. “If coverage hinges on an
undefined term, we apply the plain, ordinary meaning of the term in
interpreting the contract.” While we regard insurance policies as
adhesion contracts and resolve ambiguities in favor of the insured, we
will not rewrite a contract to impose liability on an insurer if the policy
unambiguously precludes coverage. We will not strain the definition of
an undefined term to provide coverage for the insured. We construe
insurance contracts as a whole to give meaning and effect to each
clause, if possible. The whole of a contract is to be taken together to
give effect to every part, and each clause is to help interpret the others.
Grinnell Mut. Reinsurance Co. v. Thies, 755 N.W.2d 852, 856 (N.D. 2008) (quoting
State, ex rel. State Fire & Tornado Fund of N.D. Ins. Dep’t v. N.D. State Univ., 694
N.W.2d 225 (N.D. 2005)). The North Dakota Supreme Court has not interpreted a
pollution exclusion provision. We must, therefore, predict how it would do so. See
Northland Cas. Co. v. Meeks, 540 F.3d 869, 874 (8th Cir. 2008) (“When there is no
state supreme court case directly on point, our role is to predict how the state
supreme court would rule if faced with the issues before us.” (quoting Cotton v.
Commodore Exp., Inc., 459 F.3d 862, 864 (8th Cir. 2006)).
Generally, courts interpret pollution exclusion provisions in one of two ways.
Some courts interpret pollution exclusions narrowly. For example, in Regional Bank
of Colorado, N.A. v. St. Paul Fire & Marine Insurance Co., the Tenth Circuit,

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applying Colorado law, concluded that personal injuries received by tenants exposed
to carbon monoxide emitted from a residential heater were not excluded by the
policy’s pollution exclusion provision. 35 F.3d 494, 497 (10th Cir. 1994). Courts
that interpret pollution exclusion provisions narrowly typically reason that the
provisions are ambiguous and thus should be interpreted against the insurer, or they
apply the reasonable expectation doctrine2 to determine that an ordinary policy
holder would reasonably expect the provision to apply only to claims related to
traditional environmental pollution. See Stoney Run v. Prudential-LMI Com. Ins.
Co., 47 F.3d 34, 36–37 (2d Cir. 1995); see also MacKinnon v. Truck Ins. Exchange,
73 P.3d 1205, 1216 (Cal. 2003) (“Limiting the scope of the pollution exclusion to
injuries arising from events commonly thought of as pollution, i.e. environmental
pollution, also appears to be consistent with the choice of terms ‘discharge, dispersal,
release or escape.’”); Nav-Its, Inc. v. Selective Ins. Co. of Am., 869 A.2d 929, 936–
37 (N.J. 2005) (“[W]e are confident that the history of the pollution-exclusion clause
in its various forms demonstrates that its purpose was to have a broad exclusion for
traditional environmentally related damages.”). The Rodins contend that the North
Dakota Supreme Court would interpret the Policy’s pollution exclusion provision
narrowly.
Other courts interpret the provisions as “absolute” exclusions that exclude
claims beside those related to environmental pollution. For example, in Nautilus
Insurance Co. v. Country Oaks Apartments, the Fifth Circuit, applying Texas law,
concluded that personal injuries received by a tenant exposed to carbon monoxide
emitted from a furnace were excluded by the policy’s pollution exclusion provision.
566 F.3d 452, 458 (5th Cir. 2009). Courts that interpret pollution exclusion
provisions as “absolute” exclusions typically reason that the provisions
unambiguously exclude coverage. See id.; see also Deni Assocs. of Fla., Inc. v. State
Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1140 (Fla. 1998) (“Applying the
unambiguous language of the pollution exclusion clause to the facts . . . it is clear
2 North Dakota does not apply the reasonable expectation doctrine when
interpreting insurance policies. See Nationwide Mut. Ins. Cos. v. Lagodinski, 683
N.W.2d 903, 911–12 (N.D. 2004).

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that the incidents at issue were excluded from coverage under the respective
insurance policies.”); Bd. of Regents of Univ. of Minn. v. Royal Ins. Co. of Am., 517
N.W.2d 888, 892 (Minn. 1994) (“[T]he exclusion goes on to include ‘other irritants,
contaminants, or pollutants.’ We would be doing a disservice to the English language
if we were to say that asbestos fibers, which are a health hazard because of their
irritant effects on the human body, were not an irritant.”). North Star contends that
the North Dakota Supreme Court would interpret the Policy’s pollution exclusion
provision as an “absolute” exclusion.
We have interpreted pollution exclusion provisions both ways, depending on
which state’s law we were applying. In Sargent Construction Co. v. State Auto Ins.,
23 F.3d 1324 (8th Cir. 1994), and First Realty, Ltd. v. Frontier Insurance Co., 378
F.3d 729 (8th Cir. 2004), we interpreted the pollution exclusion provisions narrowly
after applying Missouri and Iowa law, respectively. In both cases, we concluded that
the terms “irritant” and “contaminant,” as used in the provisions, were ambiguous,
and consequently interpreted the provisions against the insurers and in favor of
coverage. See Sargent Const. Co., 23 F.3d at 1327; First Realty, Ltd., 378 F.3d at
733. Contrastingly, in United Fire & Casualty Co. v. Titan Contractors Service, Inc.,
751 F.3d 880 (8th Cir. 2014), and Church Mut. Ins. v. Clay Center Christian Church,
746 F.3d 375 (8th Cir. 2014), we concluded that the provisions were “absolute”
exclusions after applying Missouri and Nebraska law, respectively.3 In United Fire
& Casualty Co. and Church Mutual Insurance Co., we found that the provisions
were unambiguous after using dictionaries to define “irritant” and “contaminant.”
See United Fire & Cas. Co., 751 F.3d at 884; Church Mut. Ins. Co., 746 F.3d at 380.
Similarly, in Hiland Partners GP Holdings v. National Union Fire Insurance Co. of
3 In United Fire & Casualty, we explained that Sargent Construction Co. did
not control the outcome of the case, despite the fact that both cases applied Missouri
law, because the cases were factually distinguishable. United Fire & Cas. Co., 751
F.3d at 886 n.3. In Church Mutual Insurance Co., we explained that Sargent
Construction Co. and First Realty, Ltd. had no bearing on our resolution of the case
because neither of those cases applied Nebraska law. Church Mut. Ins. Co., 746 F.3d
at 380 n.3.

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Pittsburgh, we applied North Dakota law to conclude that the pollution exclusion
was “absolute” and unambiguously excluded coverage. 847 F.3d 594 (8th Cir.
2017).4
Here, like in United Fire & Casualty Co., Church Mutual Insurance Co., and
Hiland Partners, we conclude that the Policy’s pollution exclusion unambiguously
excludes coverage for Alber’s bodily injury claim. It is undisputed that Alber’s claim
falls within the general inclusionary terms of the Policy. Therefore, North Star owes
the Rodins a duty to defend or indemnify them so long as those claims are not
excluded by the Policy’s pollution exclusion provision.
Alber’s claims are excluded by the pollution exclusion if North Star and the
Rodins’ mutually intended for the Policy to exclude such claims when they entered
into the contract. See Grinnell Mut. Reinsurance Co., 755 N.W.2d at 856. The
pollution exclusion provision excludes claims alleging bodily injury that resulted
from the discharge, dispersal, seepage, migration, spillage, release, or escape of
“pollutants.” We must look to the language of the Policy to determine if the cause
of Alber’s bodily injury claim—the emission of carbon monoxide from a portable
heater—constitutes the discharge, dispersal, seepage, migration, spillage, release, or
escape of “pollutants.” See id.
“The dictionary is a good source to determine the plain, ordinary definition of
an undefined term.” Hanneman v. Cont’l W. Ins. Co., 575 N.W.2d 445, 451 (N.D.
1998). “Discharge” means “to give outlet or vent to: emit.” Discharge,
https://www.merriam-webster.com/dictionary/discharge (last visited March 27,
2026). Webster’s Dictionary provides the following example: “vehicles discharging
exhaust fumes[.]” Id. Alber’s bodily injuries were caused by carbon monoxide
discharging from the portable heater. Applying this ordinary definition of discharge,
4 In Hiland Partners, we found that the appellant waived its argument that the
pollution exclusion was ambiguous. 847 F.3d at 598.

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we conclude that Alber’s claims are excluded if carbon monoxide is a “pollutant” as
used in the pollution exclusion provision.
The Policy defines “pollutant,” in relevant part, as “any solid, liquid, gaseous,
thermal, or radioactive irritant or contaminant, including acids, alkalis, chemicals,
fumes, smoke, soot, vapor, and waste.” R. Doc. 3-2, at 85. Carbon monoxide is
gaseous. See Carbon monoxide, Merriam-Webster, https://www.merriam-
webster.com/dictionary/carbon%20monoxide (last visited March 27, 2026).
Therefore, if carbon monoxide is also an irritant or contaminant, then it qualifies as
a “pollutant” under the Policy’s definition. “Contaminant” is defined as “something
that contaminates.” Contaminant, Merriam-Webster, https://www.merriam-
webster.com/dictionary/contaminant (last visited March 27, 2026). “Contaminate”
is defined as “to make unfit for use by the introduction of unwholesome or
undesirable elements.” Contaminate, https://www.merriam-
webster.com/dictionary/contaminates (last visited March 27, 2026). As we
explained in Church Mutual Insurance Co., “carbon monoxide is a gas that can
render air ‘unfit for use’ if introduced at high levels.” 746 F.3d at 381. Thus, carbon
monoxide constitutes a pollutant under the Policy. Because Alber’s claim alleged a
bodily injury that resulted from the discharge of a pollutant, the district court did not
err in concluding that the pollution exclusion provision excludes coverage of the
claim.
The Rodins’ arguments against the district court’s interpretation of the
exclusion provision are unpersuasive. They urge us to define “contaminant” using
its technical meaning. We are not persuaded. Particularly, we note, their brief does
not provide the technical meaning that we should apply. We reject their argument
that we should consider the historical context of pollution exclusions because the
language used in the provision at issue is clear and unambiguous. “When an
agreement has been memorialized in a clear and unambiguous writing, extrinsic
evidence should not be considered to ascertain intent.” Hallin v. Inland Oil & Gas
Corp., 903 N.W.2d 61, 64 (N.D. 2017).

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The Rodins’ contention that the district court’s interpretation of the pollution
exclusion fails to give meaning to every clause is also unpersuasive. The Rodins
argue that the district court’s interpretation of the Policy makes the lead exclusion
superfluous since injuries caused by lead would already be excluded by the pollution
exclusion. The Rodins, however, misread the Policy. The lead exclusion states that
the Policy does not apply to “actual or alleged ‘bodily injury’ or ‘property damage’
that results directly or indirectly from any form of lead. This includes, but is not
limited to, the ingestion, inhalation, or absorption of lead in any form.” R. Doc. 3-2,
at 89. Even if we assume that lead is a pollutant, the pollution exclusion only
excludes injuries caused by the discharge, dispersal, seepage, migration, spill,
release, or escape of lead. The lead exclusion extends the exclusion to injuries caused
by lead that did not result from discharge, dispersal, seepage, migration, spillage,
release, or escape.
Lastly, the Rodins’ argue that the district court’s interpretation of the pollution
exclusion provision could lead to absurd results. We disagree. The Rodins contend
that under the district court’s interpretation, “there is no limitation to the scope of
the pollution exclusion where damages flow from exposure to a substance, because
every substance that causes bodily injury or damage to property is a ‘pollutant’ no
matter the context.” Appellant’s Br. 18. As we explained in United Fire & Casualty
Co., “the text of the exclusion imposes limitations on its own scope separate from
the definition of pollutant.” 751 F.3d at 886. For example, the pollution exclusion
only applies when the injury resulted from the discharge, dispersal, seepage,
migration, spill, release, or escape of a pollutant. If the pollutant causes an injury in
a way that is not listed in the Policy, the claim is not excluded. Moreover, we “avoid
resolving disputes based on hypothetical facts because to do so would be a poor use
of scarce judicial resources.” Public Water Supply Dist. No. 8 of Clay Cnty. v. City
of Kearney, 401 F.3d 930, 932 (8th Cir. 2005). As the Fifth Circuit explained in
Nautilus Insurance Co., “[i]t is irrelevant that . . . given sufficient imagination, we
can think of ways—not presented here—in which enforcement of this exclusion
would lead to absurd results.” 566 F.3d at 458. The district court did not err in

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making its prediction of the North Dakota Supreme Court’s interpretation of the
Policy.
III. Conclusion
Accordingly, we deny the Rodins’ motion to certify a question to the North
Dakota Supreme Court and we affirm the judgment of the district court.
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