Ewing Constr. Co. v. Amerisure Ins. Co.

• Decision Date: 17 January 2014
• Docket Number: No. 12–0661.,12–0661.
• Citation: 57 Tex. Sup. Ct. J. 195,420 S.W.3d 30
• Parties: EWING CONSTRUCTION COMPANY, INCORPORATED, Petitioner, v. AMERISURE INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

420 S.W.3d 30

57 Tex. Sup. Ct. J. 195

EWING CONSTRUCTION COMPANY, INCORPORATED, Petitioner,

v.AMERISURE INSURANCE COMPANY, Respondent.

No. 12–0661.

Supreme Court of Texas.

Argued Feb. 27, 2013.

Delivered Jan. 17, 2014.

Patrick J. Wielinski, Cokinos Bosien & Young, Irving, TX, Brendan K. McBride, The McBride Law Firm, San Antonio, TX, Manuel (Ned) Munoz, Jr., Texas Assoc. of Builders, Austin, TX, Amicus Curiae General Contractors of America.

Douglas Paul Skelley, Lee H. Shidlofsky, Shidlofsky Law Firm LLP, Austin, TX, for Appellant Ewing Construction Co., Inc.

David M. Pruessner, Higier Allen & Lautin, PC, Addison, Diana L. Faust, Michelle E. Robberson, R. Brent Cooper, Cooper & Scully, P.C., Dallas, TX, for Appellee Amerisure Ins. Co.

Justice JOHNSON delivered the opinion of the Court.

This case comes to us from the United States Court of Appeals for the Fifth Circuit on certified questions. The controversy centers on the contractual liability exclusion in a Commercial General Liability (CGL) insurance policy. The certified questions are:

1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, “assume liability” for damages arising out of the contractor's defective work so as to trigger the Contractual Liability Exclusion.

2. If the answer to question one is “Yes” and the contractual liability exclusion is triggered, do the allegations in the underlying lawsuit alleging that the contractor violated its common law duty to perform the contract in a careful, workmanlike, and non-negligent manner fall within the exception to the contractual liability exclusion for “liability that would exist in the absence of contract.”

Ewing Constr. Co. v. Amerisure Ins. Co., 690 F.3d 628, 633 (5th Cir.2012). We answer the first question “no” and do not answer the second.

I. Background

In 2008, Ewing Construction Company, Inc. (Ewing) entered into a standard American Institute of Architects contract with Tuluso–Midway Independent School District (TMISD) to serve as general contractor to renovate and build additions to a school in Corpus Christi, including constructing tennis courts. Shortly after construction of the tennis courts was completed, TMISD complained that the courts started flaking, crumbling, and cracking, rendering them unusable for their intended purpose of hosting competitive tennis events. TMISD filed suit in Texas state court against Ewing and others ¹ (the underlyingsuit). Its damage claims against Ewing were based on faulty construction of the courts and its theories of liability were breach of contract and negligence.²

Ewing tendered defense of the underlying suit to Amerisure Insurance Company, its insurer under a commercial package policy that included CGL coverage. Amerisure denied coverage,³ prompting Ewing to file suit in the U.S. District Court for the Southern District of Texas. There, Ewing sought a declaration that Amerisure had, and breached, duties to defend Ewing and indemnify it for any damages awarded to TMISD in the underlying suit. Based on its claims that Amerisure had those duties and breached them, Ewing also sought relief under Chapter 542 of the Texas Insurance Code (the Prompt Payment of Claims Act) and attorney's fees. Amerisure answered and counterclaimed, seeking a declaration that it owed Ewing neither a duty to defend nor a duty to indemnify. Amerisure did not deny that Ewing established coverage under the policy's insuring agreements; rather, it urged that policy exclusions, including the contractual liability exclusion, precluded coverage and negated its duties to defend and indemnify. On cross motions for summary judgment, the district court denied Ewing's motion, granted Amerisure's motion based on the contractual liability exclusion, and entered a final judgment dismissing the entire case.

The district court's analysis relied in large part on Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118 (Tex.2010), in which this Court interpreted the contractual liability exclusion in a CGL policy. Ewing Constr. Co. v. Amerisure Ins. Co., 814 F.Supp.2d 739, 746–48 (S.D.Tex.2011). The district court determined that Gilbert “stands for the proposition that the contractual liability exclusion applies when an insured has entered into a contract and, by doing so, has assumed liability for its own performance under that contract.” Id. at 747. The court concluded that TMISD's pleadings showed Ewing assumed liability for its own construction work pursuant to the contract such that it would be liable for failing to perform under the contract if the work was deficient. Id. The court concluded that the CGL policy's contractual liability exclusion applied to exclude coverage. Id. at 747–48. The court further held that the exception to the exclusion was not applicable because TMISD's claims against Ewing sounded only in contract, not tort, and did not entail liability for damages “the insured would have in the absence of the contract.” Id. at 752. The court concluded that Amerisure had no duty to either defend or indemnify TMISD in the underlying suit. Id. at 752–53.

On appeal, the Fifth Circuit, in a 2–1 opinion, initially affirmed the district court's judgment on the duty to defend but vacated and remanded with respect to the duty to indemnify and the related Prompt Payment of Claims Act issue to await the results of the underlying suit. Ewing Constr. Co. v. Amerisure Ins. Co., 684 F.3d 512 (5th Cir.2012), withdrawn by,690 F.3d 628 (5th Cir.2012). Ewing petitioned for rehearing, and the Fifth Circuit withdrew its opinion and certified the above questions to this Court. Ewing Constr. Co., 690 F.3d at 633.⁴

Under its CGL policy, Amerisure assumed two duties, subject to the policy terms, limitations, and exclusions: (1) the duty to defend suits seeking damages from Ewing for an event potentially covered by the policy, and (2) the duty to indemnify Ewing by paying covered claims and judgments against it. See D.R. Horton–Tex., Ltd. v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009). We have characterized these two duties as “distinct and separate” in that one may exist without the other. Id. (quoting Utica Nat'l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004)). We first consider the duty to defend.

II. Duty to Defend

A. Standard of Review and Burden of Proof

Texas courts follow the eight corners rule in determining an insurer's duty to defend. Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 380 (Tex.2012). Under that rule, courts look to the facts alleged within the four corners of the pleadings, measure them against the language within the four corners of the insurance policy, and determine if the facts alleged present a matter that could potentially be covered by the insurance policy. Id. The factual allegations are considered without regard to their truth or falsity and all doubts regarding the duty to defend are resolved in the insured's favor. Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 491 (Tex.2008). In reviewing the pleadings and making the foregoing determinations, courts look to the factual allegations showing the origin of the damages claimed, not to the legal theories or conclusions alleged. See Evanston, 370 S.W.3d at 380;Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (per curiam).

The insured has the initial burden to establish coverage under the policy. Gilbert, 327 S.W.3d at 124. If it does so, then to avoid liability the insurer must prove one of the policy's exclusions applies. Id. If the insurer proves that an exclusion applies, the burden shifts back to the insured to establish that an exception to the exclusion restores coverage. Id.

B. The Underlying Suit and the Exclusion

The relevant allegations in TMISD's live pleading in the underlying suit are as follows. Ewing contracted with TMISD to build tennis courts and Ewing subcontracted all or part of the construction work. Shortly after construction was completed, “[s]erious tennis court cracking and flaking problems began ... and have continued since. Chunks of the court surfaces are coming loose. Flaking, crumbling, and cracking make the courts unusable for their intended purpose, competitive tennis events.” With respect to Ewing, TMISD claims damages on both contractual and negligence theories of liability:

20. Defendant Ewing Construction has breached its contractual commitments, proximately causing damages to Plaintiff. On information and belief, Plaintiff says that Defendant Ewing and/or its subcontractors breached its contract in the following respects:

a) Failing to complete construction in accordance with the contract plans and specifications;

b) Failing to exercise ordinary care in the preparation, management and execution of construction;

c) Failing to perform in a good and workmanlike manner; and

d) Failing to properly retain and supervise subcontractors.

21. Furthermore, Defendant Ewing Construction and/or its subcontractors was/were guilty of negligence proximately causing damages to Plaintiff in the following respects:

a) Failing to properly prepare for and manage the construction;

b) Failing to properly retain and oversee subcontractors;

c) Failing to perform in a good and workmanlike manner; and

d) Failing to properly carry out the construction so that it was completed in accordance with the plans and specifications.

TMISD further generally alleges that Ewing was negligent by breaching its duty to use ordinary care in the performance of its contract. Amerisure's policy provides that the insurance applies to

“bodily injury” and “property damage” only if: (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; [and] (2) The “bodily injury” or “property damage” occurs...