Eulich v. Home Indem. Co.
| Decision Date | 13 December 1973 |
| Docket Number | No. 18240,18240 |
| Citation | 503 S.W.2d 846 |
| Parties | John F. EULICH, d/b/a the Vantage Co., Appellant, v. The HOME INDEMNITY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Henry Stollenwerck, Dallas, for appellant .
Wm. F. Billings, Johnson, Guthrie & Billings, Dallas, for appellee .
Plaintiff is the owner of a building that collapsed after completion because the contractor installed a steel member whose strength was less than that required by the contract. After recovering judgment against the contractor, plaintiff brought this suit against the contractor's insurer on a policy of contractual liability and general comprehensive liability insurance. The insurer defended on the ground that the loss was within certain exclusions in the policy. We affirm, since we interpret the policy as excluding coverage of the contractor's liability for damage to the building resulting from the contractor's failure to follow specifications, as distinguished from liability for damage to other property resulting from such a failure.
Before considering the particular exclusions, we must determine whether all of the exclusions in the contractual liability section of the policy are rendered inapplicable by a printed paragraph appearing immediately after the schedule of coverage and before the principal insuring provisions. This paragraph in its entirety is as follows:
The following exclusions do not apply with respect to any 'construction agreement':
Immediately after this language is a blank space allowing room for at least a line and a half of typewriting. The next paragraph is the main insuring agreement, which describes coverages for 'contractual bodily injury liability' and 'contractual property damage liability.' Then follows a section titled 'Exclusions,' which contains printed paragraphs designated (a) through (p). Plaintiff contends that since none of the letters corresponding to these exclusions have been inserted in the blank space, the policy is subject to the interpretation that all exclusions are inapplicable with respect to liability under any construction agreement. This argument is without merit. The use of the colon followed by the blank space clearly shows that the paragraph is incomplete and that 'following exclusions' was intended to render inapplicable only such exclusions as may be specified in the space following the colon. Since no exclusion is there specified, none is rendered inapplicable. The blank must be completed in order to negative any of the exclusions which appear in subsequent paragraphs of the policy. Failure to complete it cannot properly be taken as changing the meaning of 'following exclusions' so as to make this expression refer to all printed exclusions in subsequent paragraphs of the policy. The policy cannot be read as if 'all' were inserted in the blank space. Consequently, we hold that none of the exclusions are affected by this paragraph.
This conclusion is not contrary to the majority opinion in Insurance Co. of North America v. Cash, 475 S.W.2d 912 (Tex.1971). In that case the policy insured an aircraft and contained a 'pilot endorsement' which excluded coverage 'while such aircraft is in flight unless the pilot in command of the aircraft is a person named below, or a person meeting the qualifications set forth below:'. Following this language was a blank space in which the name of a qualified pilot was inserted, but no qualifications were set forth, although ample space for a statement of qualifications was left in the printed form. The supreme court held that in the absence of any other statement of qualifications, the endorsement restricted coverage to pilots of the same or superior qualifications as the person named. In that case, the provision in question was not obviously incomplete because the space following the colon was not left entirely blank. Since the name of a qualified pilot was inserted, the question was whether insertion of that name could be construed as specifying the qualifications required of any pilot, which were not otherwise specified. No similar question is presented here.
Since we hold that the incomplete paragraph above quoted does not render any of the exclusions inapplicable, we must decide whether any of the exclusions in the contractual liability section of the policy exclude the liability asserted here. Among these is exclusion (k), which provides that this insurance does not apply 'to property damage to work performed by or on behalf of the named insured arising out of...
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