Ewing Construction Company, Incorporated v. Amerisure Insurance Company
420 S.W.3d 30
| Tex. | 2014Background
- TMISD sued Ewing for breach of contract and negligence related to tennis court construction; TMISD alleged defective work causing cracking and unusable courts.
- Ewing tendered defense to Amerisure; Amerisure denied coverage and the district court granted summary judgment for Amerisure based on the contractual liability exclusion.
- The district court relied on Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London (Tex. 2010) to interpret the exclusion and its exception.
- The certified questions asked (1) whether a general contractor’s good-and-workmanlike obligation enlarges liability to trigger the exclusion, and (2) if so, whether the common-law duty claims fall within the “absent contract” exception.
- The Texas Supreme Court held the good-and-workmanlike promise does not enlarge liability to trigger the exclusion, and thus answered Question 1 No; it did not answer Question 2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a general contractor’s good-and-workmanlike obligation enlarge liability to trigger the exclusion? | Ewing argues no enlargement beyond general law. | Amerisure argues the clause enlarges liability. | No; enlargement not shown. |
| If enlargement exists, do absent-contract claims fall within the exception? | Not reached since no enlargement. | Not reached. | Not addressed as Question 1 was answered no. |
Key Cases Cited
- Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118 (Tex. 2010) (defines 'assume liability' and guides exclusion interpretation)
- Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007) (occurrence/coverage basics; faulty workmanship can trigger coverage)
- Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987) (defines good and workmanlike standard, implied warranty of services)
- Sw. Bell Tel. Co. v. Delanney, 809 S.W.2d 493 (Tex. 1991) (when injury is to contract subject matter, action sounds in contract)
- Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) (injury to contract subject matter indicates contract-based claim)