Ewing Construction Co., Inc. v. Amerisure Insuranc
690 F.3d 628
5th Cir.2012Background
- Ewing Construction contracted to build tennis courts for Tuloso-Midway ISD and subcontracted parts of the work.
- The School District sued in Texas state court for defective construction seeking damages, naming Ewing and others.
- Ewing tendered defense to Amerisure under a Commercial General Liability (CGL) policy; Amerisure denied coverage under the contractual liability exclusion.
- The district court granted Amerisure summary judgment and dismissed the case, finding no coverage or duty to defend or indemnify.
- On appeal, the Fifth Circuit initially affirmed, then withdrew to certify determinative Texas law questions to the Texas Supreme Court under Article 5, §3‑C and Rule 58.1.
- The panel identified the scope of the contractual liability exclusion and potential exceptions as determinative and certified two questions to Texas for guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the contract to perform work in a good and workmanlike manner trigger the contractual liability exclusion? | Ewing argues the exclusion applies where liability is contractually assumed. | Amerisure contends the exclusion plainly excludes contractual liability, possibly covering defense costs. | Certified questions only; no merits ruling on the issue. |
| If yes, do allegations of breach of the contract in a workmanlike manner fall within the exception for liability that would exist absent contract? | Ewing contends common-law duties are not preempted by the contract-based exclusion. | Amerisure argues the exception does not apply unless liability would exist without contract. | Certified questions only; no merits ruling on the issue. |
Key Cases Cited
- Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007) (holds that construction defect claims can be 'occurrences' under a CGL policy)
- Pine Oak Builders, Inc. v. Great American Lloyds Insurance Company, 279 S.W.3d 650 (Tex. 2009) (confirms that faulty workmanship may be property damage under CGL, with 'your work' exclusion analyzed)
- Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118 (Tex. 2010) (held that an express contractual obligation to repair third-party damage can trigger the contractual liability exclusion)