Ewing Construction Co., Inc. v. Amerisure Insuranc
684 F.3d 512
5th Cir.2012Background
- Ewing Construction contracted in June 2008 to build tennis courts for Tuloso-Midway ISD in Corpus Christi, Texas.
- The School District sued Ewing in February 2010 for defective construction, alleging contract breaches and negligence.
- Ewing tendered defense to Amerisure Insurance Co. under a Commercial General Liability (CGL) policy; Amerisure denied coverage.
- The district court granted Amerisure summary judgment, holding no duty to defend or indemnify due to the contractual liability exclusion and no applicable exception.
- The court treated duties to defend and to indemnify separately and later Vacated the indemnity ruling and remanded for ripeness of indemnity issues.
- The Fifth Circuit affirmed the defense duty denial, vacated the indemnity ruling, and remanded for further proceedings on indemnity and the Prompt Payment of Claims Statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the contractual liability exclusion bar coverage here? | Ewing—claims Gilbert governs exclusion applies to contractual liability. | Amerisure—Gilbert supports excluding contractual liability; plain meaning excludes coverage. | Yes, exclusion applies and bars coverage for the underlying contract-based liability. |
| Does any exception to the exclusion restore coverage? | Ewing contends exception for liability would exist absent the contract applies. | Amerisure—the exception does not apply because the loss arises from contractual liability. | No exception applies; coverage remains excluded. |
| Is Amerisure's duty to indemnify ripe for adjudication now? | Ewing argues indemnity may be proven depending on underlying facts. | Amerisure—indemnity should wait until underlying facts are resolved. | Indemnity is not ripe; vacate and remand to decide ripeness based on underlying litigation. |
Key Cases Cited
- Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010) (contractual liability exclusion hinges on a stated assumption of liability in contract)
- Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1 (Tex. 2007) (faulty workmanship typically excluded from CGL coverage; use of business-risk exclusions)
- Century Sur. Co. v. Hardscape Constr. Specialties, Inc., 578 F.3d 262 (5th Cir. 2009) (duty to defend evaluated under eight-corners rule; contract vs tort distinctions)
- D.R. Horton-Tex., Ltd. v. Market Intl. Ins. Co., Ltd., 300 S.W.3d 740 (Tex. 2009) (duties to defend and indemnify are distinct; indemnity can be ripe after facts beyond pleadings)
- King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002) (eight-corners rule for defense responsibilities in CGL policies)