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No. 12-0661
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EWING CONSTRUCTION COMPANY, INCORPORATED v. AMERISURE INSURANCE COMPANY

Oral argument was held on February 27, 2013. The Court issued an opinion resolving the case on January 17, 2014. File Closed

In the news...

Tracking 3 articles about this case.

January 17, 2014

Opinions in four cases [Jan. 17, 2014]

from SCOTXblog

This article also mentions 6 other cases.

The Court has issued opinions:

November 30, 2012

Court upholds an informed-consent claim against a chiropractor; argument date in insurance certified question [Nov. 30, 2012]

from SCOTXblog

The article also mentions:
  • AARON FELTON v. BROCK LOVETT, D.C.
  • August 24, 2012

    Two new cases selected for argument; no opinions today [Aug. 24, 2012]

    from SCOTXblog

    The article also mentions:
  • IN RE NESTLE USA, INC.
  • Opinion

    January 17, 2014

    Johnson
    Hecht
    Green
    Willett
    Guzman
    Lehrmann
    Boyd
    Devine
    Brown

    Justice Johnson delivered the opinion of the Court. PDF

     

    Court of Appeals

    None

    Trial Court

    None

    Docket Entries

    Date Event Outcome  
    2014-04-02 Case Stored  
      This case was waiting for a possible rehearing motion between February 4, 2014 and April 2, 2014.  
    2014-02-04 Letter Filed  
    2014-01-17 Opinion issued Certified question answered by the Court
      This case was awaiting the Court's decision after oral argument between August 23, 2013 and January 17, 2014.  
    2013-08-23 Letter brief (Appellant in case)  
    2013-08-21 Additional citations received. (Appellant in case)  
      This case was awaiting the Court's decision after oral argument between May 6, 2013 and August 21, 2013.  
    2013-05-06 Letter brief (Appellee in case)  
    2013-04-15 Letter brief (Appellant in case)  
    2013-02-27 Oral argument  
    2013-02-26 Exhibits in case/cause filed (Appellant in case)  
    2013-02-20 Oral Argument Submission Form from Attorney received  
    2013-02-19 Oral Argument Submission Form from Attorney received  
    2013-02-11 Amicus Curiae Brief received  
    2013-01-03 Amicus Curiae Brief received  
    2012-12-21 Amicus Curiae Brief received  
    2012-12-07 Miscellaneous motion disposed. See Remarks.   Filing granted
    2012-11-30 Miscellaneous Motion  
    2012-11-30 Call received  
    2012-11-30 Case set for oral argument   Case set for oral argument
    2012-11-20 Reply Brief (Appellant in case)  
    2012-11-07 Motion for Extension of Time disposed.   Filing granted
    2012-11-05 Motion for Extension of Time to File Brief filed  
    2012-10-29 Brief on the Merits (Appellee in case)  
    2012-10-08 Motion for Extension of Time disposed.   Filing granted
    2012-10-05 Motion for Extension of Time to File Brief filed  
    2012-09-24 Brief on the Merits (Appellant in case)  
    2012-09-24 Exhibits in case/cause filed (Joint motion filed)  
    2012-09-17 Call received  
    2012-08-28 Designation of Lead Counsel  
    2012-08-24 Certified Question disposed   Certified Question accepted
    2012-08-24 Certified Question accepted
    2012-08-24 Brief on the Merits Requested  
    2012-08-14 Case Record Filed  
    2012-08-14 Certified Question filed  
    2012-08-14 Notice requesting filing fee  

    Parties

    Party Counsel Role
    Ewing Construction Co., Inc.
    Mr. Lee H. Shidlofsky
    Mr. Douglas Paul Skelley
    Appellant
    Amerisure Ins. Co.
    Mr. R. Brent Cooper
    Mr. David M. Pruessner
    Ms. Diana L. Faust
    Ms. Michelle E. Robberson
    Appellee

    Amici Curiae

    Amicus Curiae Counsel
    General Contractors of America
    Mr. Patrick J. Wielinski
    Texas Association of Builders
    Mr. Manuel (Ned) Munoz, Jr.
    Texas Apartment Association, Inc.
    Mr. Brendan K. McBride

    The Court accepted a certified question from the Fifth Circuit about Commercial General Liability (CGL) insurance policies:

    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.

    The Court answered no.

    The dispute here is whether the insurance covers certain legal claims being made against the contractor, such that the insurer will pay for a defense or ultimately pay the claims. Reading the policy is a study in double negatives. The Court focuses on an exclusion which is, in turn, limited by an exception. The exclusion is for certain contract claims, including those one is “obligated to pay … by reason of the assumption of liability in a contract or agreement.” The exception carved out of that exclusion is for obligations they insured would have owed regardless of the contract or those specified in an “insured contract.”

    Applying the framework from GILBERT TEXAS CONSTRUCTION, L.P. v. UNDERWRITERS AT LLOYD'S LONDON, No. 08-0246, the Court held that a provision in which a contractor promised to do work “in a good and workmanlike manner” did not trigger the exclusion at all (and thus need not fit into an exception). That is because the language “did not add anything to the obligation [the contractor] has under general law to comply with the contract’s terms and to exercise ordinary care in doing so.” Thus, the insurer could not invoke this exclusion to deny coverage.

    With this issue of Texas law resolved, the case returns to the Fifth Circuit.

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