Texas Supreme Court Holds Exclusion Inapplicable to Construction Defect Claim

In its recent decision in Ewing Constr. Co. v. Amerisure Ins. Co., 2014 Tex. LEXIS 39 (Tex. Feb. 27, 2013), the Supreme Court of Texas addressed certified questions from the United States Court of Appeals for the Fifth Circuit regarding the scope of the Contractual Liability exclusion in the context of a construction defect claim.  The court was asked to determine whether a general contractor that enters into a contract agreeing to perform its work in a good and workmanlike manner “assumes liability” for damages arising out of the contractor’s defective work, thereby triggering the Contractual Liability exclusion.

Ewing Construction Company (“Ewing”) entered into a contract with Tuluso-Midway Independent School district (“TMISD”) to serve as the general contractor for a construction project at a school in Corpus Christi, Texas. Among other things, Ewing was to renovate and build additions to a tennis court, which Ewing did through its subcontractors.  The contract required Ewing to perform that work in a “good and workmanlike manner.”  Not long after construction was complete, cracking and flaking problems began and TMISD filed suit against Ewing asserting claims for breach of contract and negligence.

Amerisure Insurance Company issued a commercial general liability policy to Ewing for the time period at issue.  Ewing tendered its defense of the TMISD suit to Amerisure, which it denied based on the Contractual Liability exclusion. The Contractual Liability exclusion of the Policy stated in relevant part:

2.   Exclusions

      This insurance does not apply to:

                                    …

b.   Contractual Liability

“bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:

(1) That the insured would have in the absence of the contract or agreement; or

(2) Assumed in a contract or agreement that is an “insured contract”

Ewing filed suit against Amerisure in the U.S. District Court for the Southern District of Texas, seeking a declaration that Amerisure breached its duties to defend and indemnify Ewing for any damages awarded to TMISD. Amerisure counterclaimed, seeking a declaration that it owed Ewing neither a duty to defend nor a duty to indemnify. Although Amerisure conceded that Ewing established coverage under the policy’s insuring agreements, it took the position that policy exclusions, in particular the Contractual Liability exclusion, precluded coverage and negated its duties to defend and indemnify.

The district court relied on Gilbert Texas Constr. Co. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010) in holding that no coverage was owed under the policy. The district court determined that Gilbert stood for the proposition that the Contractual Liability exclusion applies when an insured enters into a contract and assumes liability for its own performance under that contract. The district court concluded that TMISD’s pleadings established that pursuant to the contract between TMISD and Ewing, Ewing agreed to be liable for failing to perform under the contract if the work was deficient. The district court therefore concluded that the Contractual Liability exclusion applied to preclude coverage.

On appeal, the Fifth Circuit initially affirmed the district court’s judgment on the duty to defend, but later vacated and remanded the case with respect to the duty to indemnify to await the results of the underlying suit. Ewing petitioned for rehearing. The Fifth Circuit withdrew its opinion and certified two questions to the Supreme Court of Texas:

1.   Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good an 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.”

The Texas Supreme Court carefully examined Gilbert and concluded that “assumption of liability” in the context of the exclusion meant that the insured had assumed a liability for damages that exceeded the liability it would have under general law. The Court defined “good and workmanlike” and “negligence” as having the same substantive meaning. The Court acknowledged that Ewing had a common law duty to perform its contract with skill and care.  Reasoning that the claims asserted by TMISD did not seek recovery for damages that exceeded the liability Ewing would have under general law, the Court concluded that the exclusion did not apply to preclude coverage.

The Court also rejected the notion that its holding would have the effect of transforming CGL policies into performance bonds. The Court observed that because the policy contained other exclusions that may apply to bar coverage in a case for breach of contract due to faulty workmanship, its ruling was consistent with the view that CGL policies are not performance bonds.

Ohio Court Holds E&O Policy Not Triggered By Underlying Misappropriation

In its recent decision in Entitle Ins. Co. v. Darwin Select Ins. Co., 2013 U.S. Dist. LEXIS 14218 (N.D. Ohio Feb. 1, 2013), the United States District Court for the Northern District of Ohio had occasion to consider whether a title insurer errors and omissions liability policy was triggered by the insured’s indemnity obligations pursuant to a series of closure protection letters.

Darwin insured EnTitle Insurance Company, a title insurer, under a professional liability policy with the following insuring agreement:

The Insurer will indemnify the Insured for Loss, including Defense Expenses, from any Claim or Extra-Contractual Claim first made against them during the Policy Period or any applicable Extended Reporting period and reported in accordance with Section VIII(G) of this Policy, for Professional Liability Wrongful Acts committed on or after the date of incorporation or formation of the Named Insured and prior to the end of the Policy Period.

The policy defined Professional Liability Wrongful Acts, and the related term Professional Services as follows:

2)   Professional Liability Wrongful Act- any actual or alleged act, error, omission, misstatement or misleading statement in the performance of or failure to perform Professional Services....by any Insured, or by an individual or entity for whom the Company is legally responsible.

3) Professional Services-services performed by the Company or any Insured Person on behalf of the Company, for a policyholder, customer or client of the Company, pursuant to a policy of insurance issued by, or a written contract with, the Company, in the usual and customary conduct of the Company's business, for a fee or other business consideration.

In connection with its business, EnTitle hired an agency named Direct Title to offer its title insurance product as a “non-exclusive policy issuing agent.” EnTitle offered “closing protection letters,” obligating EnTitle to reimburse its clients for any loss stemming from Direct Title's fraud, dishonesty or negligence in the handling of the closings of title insurance.  Direct Title was later discovered to have misappropriated amounts from client escrow funds, and as a result, these clients demanded reimbursement from EnTitle under the closing protection letters.  EnTitle, in turn, sought indemnification from Darwin under its errors and omissions policy on the theory that Direct Title had committed Professional Liability Wrongful Acts for which EnTitle was legally responsible.  Darwin denied coverage to EnTitle on the basis that EnTitle’s indemnity obligations pursuant to the letters did not arise out of  a “Professional Liability Wrongful Act” and that these obligations did not otherwise qualify as covered Loss under the policy.

In considering the coverage issue, the court observed that to qualify as a “Professional Liability Wrongful Act,” there must be an act, error, omission, misstatement or misleading statement either by EnTitle, as the policy’s insured, or by another entity for whom EnTitle was “legally responsible.”  Thus, the court focused on the issue of whether EnTitle was legally responsible to its clients for Direct Title’s malfeasance.  EnTitle argued that closing protection letters are customary in the title insurance industry, and as such, a practice that Darwin could have expected EnTitle to engage in.  

The court agreed that the protection letters were customary in the industry and, in fact, that Darwin knew EnTitle issued these letters.  This, however, was not determinative of the coverage issue for the court.  Instead, the issue was whether EnTitle was legally responsible for Direct Title’s wrongful act.  Darwin argued, and the court agreed, that EnTitle had no legal responsibility to its clients resulting from Direct Title’s malfeasance.  Instead, EnTitle’s liabilities were a matter of contract.  The court recognized a distinction:

The issuance of [closing protection letters] did not make EnTitle legally responsible for Direct Title. Instead, the [closing protection letters] made EnTitle contractually responsible. A contractual obligation to pay is not the same as a legal obligation to pay …  In addition, even with EnTitle's contractual right to inspect the accounts of Direct Title, the right to inspect an agent's accounts does not demonstrate the control necessary to hold a title insurer liable for the agent's mismanagement of escrow funds.

The court went on to conclude that EnTitle’s obligations under the protection letters did not qualify as “Loss,” a term expressly defined to exclude “amounts due under any contract.”  Further, the Darwin policy excluded coverage “for actual or alleged liability under any express contract or agreement.”  The court agreed that this exclusion applied.  The court also identified a moral hazard in allowing EnTitle to insure contractual obligations such as those set forth in the protection letters, explaining:

A company could enter into a contract safe in the assumption that if he later decides to engage in an act which might be considered a breach, the insurance company will step forward to cover the consequences of his act if he was wrong; and if he was right, he still walks away with no consequence to himself. Such a practice is inimical to the entire concept of insurance.

Fifth Circuit Addresses Contractual Liability Exclusion

In its recent decision in Colony Nat'l Ins. Co. v. Manitex, L.L.C., 2012 U.S. App. LEXIS 3311 (5^th Cir. Feb. 20, 2012), the United States Court of Appeals for the Fifth Circuit, applying Texas law, considered what constituted an “insured contract” for the purpose of a contractual liability exclusion in a general liability policy.

Manitex involved two asset purchase agreements effecting a transfer of the assets and certain liabilities of an initial product manufacturer. JLG manufactured and sold a line of boom truck cranes.  Powerscreen purchased JLG’s assets and liabilities, including JLG’s liabilities associated with the cranes.  Powerscreen, in turn, was sold to Manitex, which assumed Powerscreen’s liabilities associated with the cranes.  Manitex was insured under a general liability policy issued by Colony.  During the Colony policy period, an individual was injured while using of the JLG manufactured cranes.  That individual later filed suit against JLG, and Manitex provided JLG with a defense in the suit.  Colony sought a judicial declaration that it did not have an obligation under its policy to indemnify Manitex for its own indemnity obligations vis-à-vis JLG.   The United States District Court for the Western District of Texas ruled on motion for summary judgment that Colony at least had a duty to reimburse Manitex for costs incurred in defending JLG.  On interlocutory appeal, however, the Fifth Circuit reversed the lower court.

The exclusion at issue in Manitex was a contractual liability exclusion barring coverage for “bodily injury” or “property damage” for which Manitex became obligated to pay “by the reason of the assumption of liability in a contract or agreement.”  The exclusion contained a typical exception for liability “assumed in an ‘insured contract,’” but only if the “bodily injury” or “property damage” occurred subsequent to the execution of the contract or agreement.  “Insured contract,” in turn, was defined as:

f.          That part of any other contract or agreement pertaining to your business (including indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

At issue for the court was whether Manitex’s purchase agreement constituted an “insured contract,” and more specifically, whether Manitex assumed JLG’s tort liability pursuant to the agreement it entered into with Powerscreen. 

Colony argued that the “insured contract” exception did not apply because the purchase agreements did not effect a transfer of JLG’s tort liabilities to Manitex.  The court summarized Colony’s argument as follows:

[Colony] contends that JLG is the only entity that has any "tort liability" as the policy defines that term because only JLG's liability would be imposed by law in the absence of any contract or agreement. Manitex's liability, argues Colony, can only be imposed by operation of the Powerscreen–Manitex Purchase Agreement. Therefore, that liability is not "tort liability," but contractual liability, and as a result, the Powerscreen–Manitex Purchase Agreement is not an insured contract, and Manitex's liability falls within the contractual liability exclusion and outside of coverage by the policy.   

The lower court rejected this very argument, concluding among other things, that Manitex assumed JLG’s tort liabilities, and that “"[a]n insurance policy that specifically covered contractually-assumed tort liability, yet removed from coverage any agreement involving more than a single contractual link, seems unlikely to have been intended by the parties.”

The Fifth Circuit, however, took a much more narrow view of the “insured contract” exception, concluding that Manitex did not contractually assume JLG’s tort liabilities, but instead assumed only the liabilities of Powerscreen.  The court found a significant distinction to be critical:

Powerscreen's liability arose strictly from a contract, namely, its purchase agreement with JLG. If that contract did not exist, then Powerscreen would have had no liability related to the [underlying] claims. Powerscreen's liability, therefore, was not one that “would be imposed by law in the absence of any contract or agreement.” Therefore, it was not “tort liability.”

Thus, the court concluded, because the Manitex agreement with Powerscreen did not effect a transfer of Powerscreen’s tort liabilities, it did not constitute an “insured contract,” and the contractually liability exclusion, therefore, barred coverage for Manitex’s costs in defending JLG.