Tejas Specialty Group, Inc. and Tejas Specialty Concrete Coatings, LLC v. United Specialty Insurance Company

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00085-CV
___________________________

TEJAS SPECIALTY GROUP, INC. AND TEJAS SPECIALTY CONCRETE
COATINGS, LLC, Appellants

V.

UNITED SPECIALTY INSURANCE COMPANY, Appellee

On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-313064-19

Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Wallach
 MEMORANDUM OPINION

This is a general liability insurance coverage dispute involving the duty to

defend and duty to pay arising from an underlying construction defect case.

Appellants Tejas Specialty Group, Inc. and Tejas Specialty Concrete Coatings, LLC

(collectively “Tejas”) sued their liability insurer, United Specialty Insurance Company

(“United”), asserting claims for declaratory relief and breach of contract for United’s

refusal to defend and indemnify Tejas in the underlying case as well as claims for

violations of the Texas Insurance Code and for attorney’s fees. Tejas filed a motion

for partial summary judgment, seeking a ruling on United’s duty to defend the

underlying case. United filed a cross-motion for summary judgment, seeking dismissal

of all of Tejas’s claims. Following a hearing, the trial court granted United’s motion

and denied Tejas’s motion. Tejas now seeks reversal of the trial court’s summary

judgment in favor of United and of the trial court’s denial of Tejas’s motion for partial

summary judgment.

We hold that United had a duty to defend the third-party claim against Tejas in

the underlying lawsuit, and it breached that duty. We therefore reverse the trial court’s

summary judgment in favor of United and the trial court’s denial of Tejas’s motion

for partial summary judgment. We render judgment that United had a duty to defend

Tejas in the third-party claim in the underlying lawsuit and that it breached that duty,

and we remand this case for proceedings consistent with this opinion.

2
I. Factual Background

The third-party claim against Tejas originated in the First Amended Third Party

Petition (“Third-Party Petition”) of Icon Builders, LLC (“Icon”) filed in the 55th

District Court of Harris County. In that petition, Icon alleged that Avenue

Community Development Corporation (“ACDC”) and Avenue Station, LP

(“Avenue”) (collectively “Plaintiffs”) had sued Icon, as general contractor, alleging

breach of a construction contract, breach of express warranty, breach of performance

bond, and negligence in the construction of Avenue Station, a multi-family affordable

housing development in Houston, Texas (Project or Avenue Station Project), and that

Icon was entitled to indemnity or contribution from Tejas if Icon was found liable to

ACDC or Avenue for any work that Tejas had performed as a subcontractor on the

Avenue Station Project. In addition to Tejas, Icon sued five other subcontractors

raising similar claims of indemnity or contribution.

The six subcontracts were allegedly executed in 2014, 2015, and 2016, with

Tejas’s contract allegedly executed on December 21, 2015. Under the terms of the

subcontract, Tejas agreed to provide labor and materials to “install lightweight and

gypsum” on the Project and to “water-proof[] the balconies.” No further terms or

details of the general contract or the Tejas subcontract were stated. Icon alleged that

the Avenue Station Project was “certified as substantially comp[l]ete on March 9,

2017.” However, the Third-Party Petition did not allege when any of Tejas’s work, or

3
any of the other subcontractor defendants’ work, was performed, either before or

after March 9, 2017.

According to Icon’s Third-Party Petition, Plaintiffs alleged that in mid-2017,

they

began to receive reports of and or observe numerous concerning
conditions at the Project. The non-conforming and/or defective work
items manifested at the Project include the following: (1) improperly
sealed and/or nonfunctioning weep gaps at window heads;
(2) installation of a non-specified and otherwise unapproved weather-
resistive barrier; (3) improper construction of vertical transition between
the Project’s stucco cladding and the lower-level brick wall; (4) exposed
sheathing; (5) exposed weather-resistive barrier; (6) lack of proper
integration of the weather-resistive barrier; (7) lack of properly installed
door flashing and trim[;] (8) a failed and collapsed landscape masonry
retaining wall[;] and (9) balcony flashing and drainage systems failures.

21. Further, with regard to the windows, Plaintiffs allege:
(1) the presence of sealant within the drainage gap at the window heads
has likely resulted in excessive moisture buildup within the Project’s
exterior cladding; and (2) the absence of a functional weep at the
window heads has likely caused or contributed to the observed bulk
water infiltration around the Project’s windows as evidenced by the
widespread distress visible around the interior finished at the windows.

22. Additionally, with regard to the Project’s exterior
cladding[,] Plaintiffs allege an absence of the necessary vertical gap at the
vertical transition between the Project’s stucco cladding and the lower
level brick masonry wall which has caused or contributed to distress and
damage along the length of that transition, including: (1) brick masonry
delamination at the horizontal mortar joint below the row-lock;
(2) reverse sloping of flashing above the brick masonry row-lock; and
(3) reverse sloping of the flashing above the brick masonry row-lock.

Icon’s Third-Party Petition alleges the following regarding indemnity or

contribution against Tejas:

4
 5. CONTRIBUTION AND INDEMNITY-[TEJAS]

38. Plaintiffs allege [Icon’s] breach of contract-construction
contract, breach of express warranty, breach of contract-[]performance
bond, and negligence on the construction project known as Avenue
Station was the proximate cause of Plaintiffs’ allegedly sustained injuries.

39. In the unlikely event a judgment is rendered for Plaintiffs
against [Icon] based upon a finding that damages were the result of work
completed by Third-Party Defendant [Tejas], [Icon] is entitled to
contribution and indemnity from [Tejas] under section 33.016 of the
Texas Civil Practice and Remedies Code, to recover any payments [Icon]
may be required to make to Plaintiffs as a result of [Tejas’s] acts or
omissions.

40. [Icon] contends they are not liable to Plaintiffs for their
alleged damages, if any. However, to the extent that Plaintiffs establish
that the proximate cause of the damages arose from work that was
contained in the scope of work for Third-Party Defendant [Tejas], [Icon]
asserts causes of action against [Tejas] for negligence and breach of
contract.

Finally, Icon’s Third-Party Petition damage allegation states:

DAMAGES

Plaintiffs’ live Petition asserts [a] claim for damages allegedly
caused by . . . Icon . . . . This Petition is not an endorsement of the
existence, validity, recoverability, admissibility, credibility, or amount of
those damages. However, to the extent the Court rules any of the alleged
damages are valid, recoverable damages, and to the extent a jury awards
Plaintiffs these damages, these damages were caused by the actions and
omissions of the Third-Party Defendants. The damages sought by
Plaintiffs are incorporated and alleged herein against the Third Party-
Defendant.

Tejas tendered the defense of Icon’s claim against it to its commercial general

liability insurer, United. The inception date for United’s policy was October 1, 2017.

United denied coverage, claiming, among other things, that Icon’s claim was excluded

5
under United’s “Pre-Existing Injury or Damage Exclusion,” sometimes known as the

“Montrose Exclusion.”1

Tejas sued United and Maxum Indemnity Company,2 alleging breach of the

duty to defend and indemnify from Icon’s Third-Party Petition and seeking

declaratory relief. Tejas also alleged violations of the Texas Insurance Code, Sections

541.010(a)(2)(A), (3), 542.051, and 542.060(A), seeking recovery of damages,

attorney’s fees, and statutory penalties.

In Montrose Chemical Corp. v. Admiral Ins. Co., 913 P.2d 878, 906 (Cal. 1995) (op.
1

on reh’g), the California Supreme Court

held that coverage is not precluded for damage that the policyholder
knew existed at the time of the purchase (even after the policyholder had
been sued) as long as the policyholder’s liability for that property damage
was still contingent. In response to that decision, the Insurance Services
Organization, Inc. (ISO) adopted an endorsement in 1999, which
bec[a]me part of the October 2001 CGL form. This provision,
commonly referred to as the Montrose endorsement or exclusion, retains
the fundamental requirement that “personal injury” or “property
damage” occur during the policy’s period. It adds the requirement that
no policyholder knew that the “bodily injury” or “property damage” had
occurred, in whole or in part, prior to the policy’s inception.
Additionally, if a policyholder knew, prior to the policy inception, that
“bodily injury” or “property damage” had occurred, any continuation or
resumption of such bodily injury or property damage will be considered
to be known prior to the policy period. The provision establishes the
end date for policies triggered under a continuous or injury-in-fact
trigger.

Scott M. Seaman & Jason R. Schulze, Allocation of Losses in Complex Insurance Coverage
Claims § 2:2 (9th ed. 2020–21) Westlaw ALCICC (database updated Dec. 2020).

Maxum Indemnity Company is not a party to this appeal.
2

6
 United answered with a general denial and several affirmative defense policy

exclusions, including the “Montrose exclusion” or “Pre-existing Injury of Damage

Exclusion.” The relevant policy provisions are:

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE
LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of . . . “property
damage” to which this insurance applies. We will have the
right and duty to defend the insured against any “suit”
seeking those damages. However, we will have no duty to
defend the insured against any “suit” seeking damages
for . . . “property damage” to which this insurance does not
apply. . . .

....

b. This insurance applies to . . . “property damage” only if:

(1) The . . . “property damage” is caused by an
“occurrence” that takes place in the “coverage
territory”; [and]

(2) The . . . “property damage” occurs during the policy
period[.]

....

SECTION V—DEFINITIONS

....

13. “Occurrence” means an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions.

....

7
17. “Property damage” means:

a. Physical injury to tangible property, including all resulting
loss of use of that property. All such loss of use shall be
deemed to occur at the time of the physical injury that
caused it…

....

PRE-EXISTING INJURY OR DAMAGE EXCLUSION

This endorsement modifies the Conditions provided under the
following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

This insurance does not apply to:

1. Any [“]occurrence[”], incident or “suit” whether known or
unknown to any officer of the Named Insured:

(a) which first occurred prior to inception date of this policy
(or the retroactive date of this policy, if any); or

(b) which is, or is alleged to be, in the process of occurring as
of the inception date of the policy or the retroactive date of
this policy, if any; even if the “occurrence” continues
during this policy period.

2. Any damages arising out of or related to “bodily injury”,
“property damage” or “personal and advertising injury”, which
are known to any officer of any insured, which are in the process
of settlement, adjustment or “suit” as of the inception date of this
policy or the retroactive date of this policy, if any.

We shall have no duty to defend any Insured or Additional insured
against any loss, “occurrence”, incident or “suit”, or other proceeding
alleging damages arising out of or related to “bodily injury”, “property
damage” or “personal injury” to which this endorsement applies.

All other terms, conditions and exclusions under this policy are
applicable to this Endorsement and remain unchanged.

8
 Tejas moved for partial summary judgment on its claims that United had a duty

to defend the Icon third-party claim and breached that duty by refusing to defend.

Tejas argued that the court could consider both the Third-Party Petition and the

Plaintiffs’ First Amended Petition in the underlying action in applying the eight-

corners rule in determining the duty to defend. Tejas relied on United’s letter

declining coverage based on the Montrose exclusion and the holding from AIX Specialty

Insurance Co. v. Universal Casualty Co. that “[a]lthough the burden is typically ‘on the

insured to show that a claim against him is potentially within the scope of coverage

under the policies,’ when ‘the insurer relies on the policy’s exclusions, it bears the

burden of proving that one or more of those exclusions apply.’” No. H-12-507,

2014 WL 12599325, at *10 (S.D. Tex. July 30, 2014) (am. mem. and rec.) (quoting

Federated Mut. Ins. Co. v. Grapevine Excavation, Inc., 197 F.3d 720, 725 (5th Cir. 1999)).

Tejas argued that it did not need to first establish coverage of its claims under the

insuring language of the policy and that the Montrose exclusion did not apply under the

allegations of the Third-Party Petition and the Plaintiffs’ First Amended Petition.

United responded by arguing that only the Third-Party Petition—Icon’s

petition—should be considered in the eight-corners analysis and that the allegations in

that Petition fall within the scope of the Montrose exclusion. United did not contest

Tejas’s assertion that it did not first have a duty to show that the Third-Party Petition

allegations involved matters within the coverage provisions of the policy, nor did

United assert that Tejas had failed to do so.

9
 While disagreeing on which petitions to include in the eight-corners rule

analysis, the parties squarely drew the battle line on whether Tejas’s claims are barred

by the Montrose exclusion, as exemplified by the “Relief Requested” paragraph at the

opening of United’s Motion for Summary Judgment:

There is no coverage under the U[nited] policy for [Tejas] for the
underlying lawsuit because the policy contains a Pre-Existing Injury or
Damage Exclusion (“Montrose exclusion”) and the operative underlying
case pleading alleges the damage occurred prior to policy inception. The
underlying Third-Party Petition filed by Icon . . . alleges a manifestation
of damage “beginning in mid-2017.” The Montrose exclusion squarely
excludes coverage for all damage beginning prior to the October 1,
2017 policy inception. Consequently, U[nited] requests summary
judgment from this Court that: (1) U[nited] does not owe a duty to
defend Tejas in the underlying lawsuit; and (2) U[nited] does not owe a
duty to indemnify Tejas for any award or judgment rendered against
Tejas in the underlying lawsuit.

In its Supplement to its Motion for Summary Judgment, United made clear that

its Motion for Summary Judgment was directed at both the duty to defend and the

duty to indemnify and that if the court should find those duties lacking, then the court

should dismiss Tejas’s statutory claims, as United would owe no duty as a matter of

law in the absence of any contractual duties.

On February 28, 2020, the trial court signed its order granting United’s Motion

for Summary Judgment, dismissing all of Tejas’s claims with prejudice and denying

Tejas’s Motion for Partial Summary Judgment.

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II. Legal Standards

a. Standards of Review

In a summary-judgment case, the issue on appeal is whether the movant met

the summary-judgment burden by establishing that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010).

We take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v.

Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). We also consider the evidence presented in the light

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could and disregarding evidence contrary to the nonmovant unless

reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light of

all the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.

2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005). We will affirm a

summary judgment only if the record establishes that the movant has conclusively

proved all essential elements of the movant’s cause of action (or defense, as the case

11
may be) as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979).

When both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties’

summary-judgment evidence and determine all questions presented. Mann Frankfort,

289 S.W.3d at 848. We should then render the judgment that the trial court should

have rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746,

753 (Tex. 2009); Mann Frankfort, 289 S.W.3d at 848. This includes a situation where an

insured has moved for declaratory relief on the duty to defend and the insurer has

moved for summary judgment on the entire case. Westchester Fire Ins. Co. v. Gulf Coast

Rod, Reel & Gun Club, 64 S.W.3d 609, 612 (Tex. App.—Houston [1st Dist.] 2001, no

pet.).

As noted by the court in Westchester Fire,

Before a court of appeals may reverse a summary judgment for one party
and render judgment for the other, both parties must ordinarily have
sought final judgment relief in their motions for summary judgment. CU
Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998)[ (per curiam)].
When the relief sought is a declaratory judgment, an appellate court may
properly render judgment on liability alone. Id.

64 S.W.3d at 612.3

United contends that the trial court’s denial of Tejas’s partial motion for
3

summary judgment, which sought summary judgment on the duty to defend and
breach by United, is a non-appealable order because it was not a final judgment.
Tejas’s motion for partial summary judgment sought “an Order ruling that Maxum

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 b. Insurer’s Duty to Defend

Whether an insurance carrier owes a duty to defend under an insurance policy

is a question of law, which we review de novo. Transport Int’l Pool, Inc. v. Cont’l Ins.,

166 S.W.3d 781, 784 (Tex. App.—Fort Worth 2005, no pet.); State Farm Gen. Ins. Co.

v. White, 955 S.W.2d 474, 475 (Tex. App.—Austin 1997, no writ). Generally, in

determining an insurer’s duty to defend an insured against a third party’s liability

claim, we use the “eight-corners rule.” Richards v. State Farm Lloyds, 597 S.W.3d 492,

494–95 (Tex. 2020). 4 The claims alleged in the four corners of the third party’s

petition are compared to the terms of coverage in the four corners of the insurance

policy to determine if the insurer has a duty to defend. Id.; Pine Oak Builders, Inc. v.

Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654 (Tex. 2009). The duty to defend is

determined without regard to the truth or falsity of the third party’s allegations,

Richards, 597 S.W.3d at 495; GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church,

and United Specialty each had a duty to defend Tejas . . . , and they both breached
that duty.” Tejas’s petition sought both breach of contract relief and declaratory relief
on the duty to defend. United did not specially except to Tejas’s motion for partial
summary judgment regarding whether it was asserting a request for declaratory relief
or relief for breach of contract. The motion could be read as asking for either form of
relief. We do not find it material. We reject United’s contention based on the rationale
set forth in Westchester Fire, 64 S.W.3d at 612.
4
We are not dealing with any potential exception to the eight-corners rule in
this case. See State Farm Lloyds v. Richards, 966 F.3d 389, 396–97 (5th Cir. 2020)
(holding no exception applies); Loya Ins. Co. v. Avalos, 610 S.W.3d 878, 881–82 (Tex.
2020) (recognizing a collusive-fraud exception).

13
197 S.W.3d 305, 308 (Tex. 2006), and is based on the factual allegations in the

underlying complaint, not the legal theories or legal causes of actions pleaded. Zurich

Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 495 (Tex. 2008).

In cases where the dispute concerns the claims made by the injured party

against the insured, the “petition” used in the eight-corners analysis is the plaintiff’s

petition in the underlying case. See Richards, 597 S.W.3d at 500. In this case, where

Tejas was brought into the underlying case by virtue of Icon’s Third-Party Petition,

Tejas and United disagree on which “petitions” the court may consider in applying the

eight-corners rule. United contends that we can only consider the allegations in Icon’s

Third-Party Petition, which represent the actual allegations made against Tejas. On

the other hand, Tejas contends that we should consider not only the Third-Party

Petition but also the petitions of the Plaintiffs in the underlying litigation, which Tejas

contends were incorporated by reference in the Third-Party Petition.

The parties did not direct our attention to any Texas Supreme Court or Fifth

Circuit authority on this point, and lower Texas state courts and federal district courts

split.5 We need not decide this interesting question because it is uncontested that

5
Agreeing with United are Huffhines v. State Farm Lloyds, 167 S.W.3d 493,
497 (Tex. App.―Houston [14th Dist.] 2005, no pet.) (holding insurer’s duty to defend
is based on the allegations contained in the third-party petition and disagreeing with E
& R Rubalcava Constr., Inc. v. Burlington Ins. Co., 148 F. Supp. 2d 746, 750 n.4 (N.D.
Tex. 2001) (mem. op. and order)); Colony Ins. Co. v. Custom Ag Commodities, LLC,
272 F. Supp. 3d 948, 959 (E.D. Tex. 2017) (holding under the eight-corners rule, the
court is to consider only the third-party petition); Liberty Surplus Ins. Corp. v. Allied

14
Icon’s Third-Party Petition should be part of our eight-corners analysis and,

considering that Third-Party Petition with the United insurance policy in our eight-

corners analysis, we conclude that United has a duty to defend Tejas in the Icon third-

party action.

Interpretation of insurance contracts in Texas is governed by the same rules as

interpretation of other contracts. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154,

157 (Tex. 2003); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994) (op. on

reh’g). Each insurance policy must be interpreted according to its own specific

provisions and coverages. Gilbert Tex. Constr. v. Underwriters at Lloyd’s London,

327 S.W.3d 118, 129 n.7 (Tex. 2010). As summarized by the court in Colony Insurance

Co.,

Waste Sys., 758 F. Supp. 2d 414, 425 (S.D. Tex. 2010) (holding relevant pleading for
the purpose of determining duty to defend is third-party petition); and Gibson &
Assocs., Inc. v. Home Ins. Co., 966 F. Supp. 468, 473 (N.D. Tex. 1997) (holding duty to
defend is determined by reviewing only the third-party petition asserting claims
against insured).

Supporting Tejas’s position are BITCO Gen. Ins. Corp. v. Acadia Ins. Co., 427 F.
Supp. 3d 838, 852–55 (E.D. Tex. 2019) (holding court may look to the third-party
petition and underlying plaintiff’s petition); E & R Rubalcava Constr., 148 F. Supp. 2d
at 750 n.4 (considering allegations in the third-party petition and petition in the
underlying lawsuit in assessing the insurer’s duty to defend and disagreeing with
Gibson, 966 F. Supp. at 473); and Evanston Ins. Co. v. Kinsale Ins. Co., No. 7:17-CV-327,
2018 WL 4103031, at *11 (S.D. Tex. July 12, 2018) (holding “the [c]ourt may refer, if
necessary, to the claims in the underlying suit in order to determine if the facts
asserted trigger coverage”) (citations omitted)).

15
 In determining the scope of coverage, a court examines the policy as a
whole to ascertain the true intent of the parties. Utica Nat’l Ins. Co. of Tex.
v. Am. Indem. Co., 141 S.W.3d 198, 202 (Tex. 2004)[(op. on reh’g)]. The
court must also read all parts of the policy together in order to give
meaning to every sentence, clause, and word to avoid rendering part of
the policy inoperative. Citigroup Inc. v. Fed. Ins. Co., 649 F.3d 367, 372 (5th
Cir. 2011); State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.
1995); Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex. 1998).
A policy’s terms must be given their ordinary and generally accepted
meaning unless the policy shows the words were meant in a technical or
different sense. Nat’l Union Fire Ins. Co. v. McMurray, 342 F. App’x 956,
958 (5th Cir. 2009)[ (per curiam)]. When an insurance policy defines its
terms, those definitions control. Gastar Expl. Ltd. v. U.S. Specialty Ins. Co.,
412 S.W.3d 577, 583 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied); Gilbert Tex. Constr., 327 S.W.3d at 126. If a policy can be given
only one reasonable meaning, it is not ambiguous and will be enforced as
written. Evergreen Nat’l Indem. Co. v. Tan It All, Inc., 111 S.W.3d 669,
676 (Tex. App.—Austin 2003, no pet.); State Farm Fire & Cas. Co. v.
Vaughan, 968 S.W.2d 931, 933 (Tex. 1998)[ (per curiam)]; Nat’l Union Fire
Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995)[ (per curiam)
(op. on reh’g)]. Only the terms of the contract should be consulted when
interpreting an unambiguous contract provision. See Brown v. Palatine Ins.
Co., 89 Tex. 590, 35 S.W. 1060, 1061 (1896); State Farm Lloyds v. Page,
315 S.W.3d 525, 527 (Tex. 2010).

272 F. Supp. 3d at 956–57. The insured bears the initial burden to establish that the

claim falls within the scope of coverage provided by the policy. KLN Steel Prod. Co.,

Ltd. v. CNA Ins. Cos., 278 S.W.3d 429, 434 (Tex. App.—San Antonio 2008, pet.

denied). Should the insured establish a right to coverage, the burden then shifts to the

insurer to demonstrate that the claim is subject to a policy exclusion. Venture Encoding

Serv., Inc. v. Atl. Mut. Ins. Co., 107 S.W.3d 729, 733 (Tex. App.—Fort Worth 2003, pet.

denied) (op. on reh’g). The insurer has the burden of proving that the allegations in

question establish the policy exclusion to coverage as a matter of law. Gilbert Tex.

16
Constr., 327 S.W.3d at 124; State Farm Lloyds v. Hanson, 500 S.W.3d 84, 94 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied); see Utica, 141 S.W.3d at 204 (holding Utica

had the burden to establish the professional services exclusion in its policy). If the

insurer establishes that an exclusion applies, the burden shifts back to the insured to

show that an exception to the exclusion brings the claim back within the terms of the

policy. Venture Encoding, 107 S.W.3d at 733.

In applying the eight-corners rule, we liberally construe the allegations in the

petition in favor of the insured. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex.

2005). All that is needed to invoke the duty to defend are factual allegations that

support a claim potentially covered by the policy. See GuideOne, 197 S.W.3d at 310.

The court may consider inferences logically flowing from the facts alleged in the

petition. Hallman, 159 S.W.3d at 644–45; Gen. Star Indem. Co. v. Gulf Coast Marine

Assocs., Inc., 252 S.W.3d 450, 456 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied). If the petition ‘“does not state facts sufficient to clearly bring the case within

or without the coverage, the general rule is that the insurer is obligated to defend if

there is, potentially, a case under the [pleading] within the coverage of the policy.”’

Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.

1997) (per curiam) (quoting Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d

22, 26 (Tex. 1965)). In other words, if there is doubt as to whether the claimant has

pleaded a cause of action within coverage, the doubt is resolved in favor of the

insured, and the insurer must defend. Id.; see also GEICO Gen. Ins. Co. v. Austin Power

17
Inc., 357 S.W.3d 821, 824 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

Further, “[i]f a complaint potentially includes a covered claim, the insurer must defend

the entire suit.” Zurich, 268 S.W.3d at 491. Finally, when dealing with an exclusionary

clause in an insurance policy, ‘“[t]he court must adopt the construction of an

exclusionary clause urged by the insured as long as that construction is not

unreasonable, even if the construction urged by the insurer appears to be more

reasonable or a more accurate reflection of the parties’ intent.”’ Utica Nat. Ins.,

141 S.W.3d at 202 (quoting Nat’l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d

552, 555 (Tex.1991)).

c. Insurer’s Duty to Indemnify

The duty to indemnify is a duty independent of the duty to defend under a

liability insurance policy. Burlington N. & Santa Fe Ry. Co. v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa, 334 S.W.3d 217, 219 (Tex. 2011) (per curiam); D.R. Horton–Tex., Ltd. v.

Markel Int’l Ins. Co., 300 S.W.3d 740, 743–44 (Tex. 2009); Utica Nat’l Ins., 141 S.W.3d

at 203. While the duty to defend typically arises during litigation, resulting in the

applicability of the eight-corners rule for resolving duty-to-defend disputes, the duty

to indemnify is generally determined based on facts actually established in the

underlying litigation. Burlington, 334 S.W.3d at 219; Zurich, 268 S.W.3d at 490. There

can be circumstances where the pleadings in the underlying action may negate both

the duty to defend and the duty to indemnify. Burlington, 334 S.W.3d at 219, Farmers

Tex. Cty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997) (per curiam) (op. on

18
reh’g). Such circumstances involve allegations in the underlying lawsuit petition which

render it impossible for the insured to show by extrinsic evidence that the loss falls

under the terms of the policy. Burlington, 334 S.W.3d at 220; Griffin, 955 S.W.2d at 81–

82.

III. Analysis

a. Duty to Defend

Since United’s defense to Tejas’s claim that it had a duty to defend was based

on an exclusion to coverage under United’s policy, the first question we must decide

is whether the allegations against Tejas in the Third-Party Petition fall within the

Montrose exclusion. Applying the rules of construction applicable to the eight-corners

rule, we hold that they do not.

The essence of United’s position is that the Third-Party Petition alleges that the

work on the Project had been certified as substantially complete by March 9, 2017. By

implication, this included Tejas’s work. Further, the Third-Party Petition alleges that

the Plaintiffs in the underlying case alleged that problems with the construction had

been observed or made known to them, the owners, in the middle of 2017, which

problems reflected property damage to the Project. According to United, because the

inception date of its policy was October 1, 2017, the work and resulting property

damage occurred before the policy was issued and continued into the policy period,

19
thereby excluding the claims under the Montrose exclusion.6 While simplistically

appealing, this position fails when tested against the rules of construction which apply

to the eight-corners rule.

The Third-Party Petition is not just directed at the work of Tejas and property

damages arising from it. The pleading names six subcontractors as third-party

defendants; Tejas is one. The subcontractors’ contracts all were allegedly signed in

2014, 2015, and 2016, and the Third-Party Petition was filed on April 30, 2019. Thus,

we can infer that the work of all the subcontractors was performed and the property

damage occurred between 2014 and April 30, 2019. However, the Third-Party Petition

does not allege specifically when Tejas’s work was performed during that period, nor

does it expressly state when property damage specifically from Tejas’s work occurred

or manifested. Under these allegations, Tejas’s work could have been performed, and

property damage could have occurred, after October 1, 2017. Construing the

allegations of the Third-Party Petition liberally in favor of the insured and resolving all

doubts about coverage in favor of the insured, we hold that the property damage

claim would not be excluded under the Montrose exclusion because the work and

property damage arising therefrom could have occurred after the inception date of the

6
The duty to defend analysis utilizes the “actual injury” rule, not the
“manifestation” rule. Actual injury to property damage occurs when actual physical
damage takes place rather than when the damage manifests itself or becomes
discoverable. Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 24–26 (Tex.
2008).

20
policy. See Vines-Herrin Custom Homes, LLC v. Great Am. Lloyds Ins. Co., 357 S.W.3d

166, 173 (Tex. App.—Dallas 2011, pet. denied); Dallas Nat’l Ins. Co. v. Sabic Ams., Inc.,

355 S.W.3d 111, 119 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

The fact that the Third-Party Petition alleges that manifestations of property

damage began in mid-2017 does not negate this potentially non-excluded claim.

United contends that manifestations of damage only occur after actual damage has

occurred and that therefore actual damage had occurred before mid-2017. This, of

course, begs the question of whether the property damage which had occurred before

mid-2017 was related to Tejas’s work because the Third-Party Petition does not

expressly tie the alleged damage manifestations and damages to Tejas’s work. While

United argues that the damages described in the Third-Party Petition fall within the

scope of Tejas’s work, nothing on the face of the Third-Party Petition makes this

connection. The mere fact that some manifestations of some damages occurred

“beginning in mid-2017” does not mean that these manifestations were necessarily

related to Tejas’s work as opposed to any other subcontractor’s work.

Likewise, the fact that the work on the Project had been certified as

substantially complete on March 9, 2017, does not establish that Tejas’s work did not

occur after that date. The Third-Party Petition does not allege the terms of the

contract between ACDC/Avenue and Icon, nor does it allege any terms of the Icon

subcontract with Tejas other than a broad description of the work to be done. The

Third-Party Petition contains no allegations regarding any contractual effect of a

21
certificate of substantial completion. Because the Third-Party Petition fails to allege an

agreement that a third party (like an architect) was to be the arbiter to determine

disputes about whether work had been completed according to the terms of the

contract, the opinion of whoever prepared the alleged certificate of substantial

completion is not conclusive. See R.C. Small & Assocs., Inc. v. S. Mech., Inc., 730 S.W.2d

100, 104 (Tex. App.—Dallas 1987, no writ); Longview Constr. and Dev., Inc. v. Loggins

Constr. Co., 523 S.W.2d 771, 777 (Tex. App.—Tyler 1975, writ dism’d by agr.); Olson v.

Burton, 141 S.W. 549, 551 (Tex. App.—Fort Worth 1911, no writ). Because the

certificate of substantial completion is not binding, the allegation of substantial

completion merely creates conflicting factual inferences which will not negate

coverage, as such a conflict is resolved in favor of the insured. Westchester Fire,

64 S.W.3d at 614 (“In light of these conflicting allegations, and giving the pleadings a

liberal interpretation, we must resolve any doubts regarding coverage in the favor of

the insured.”).

Finally, United contends that because the Third-Party Petition alleges that

property damages began to manifest “beginning in mid-2017,” the language of the

Montrose exclusion operates to exclude Tejas’s claim, given that the exclusion

(endorsement) precludes coverage for

[a]ny [“]occurrence[”], incident or “suit” whether known or unknown . . .
which first occurred prior to inception date of this policy . . . ; or . . .
which is, or is alleged to be, in the process of occurring as of the
inception date of the policy . . . even if the “occurrence” continues
during this policy period

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and negates a duty to defend
against any loss, “occurrence”, incident or “suit,” or other proceeding
alleging damages arising out of or related to “bodily injury,” “property
damage” or “personal injury” to which this endorsement applies.
According to United, because “property damage” had begun to manifest in

mid-2017, all property damage occurring before October 1, 2017, as well as all

property damage continuing into the policy period, is excluded. United further argues

that because such property damage occurred prior to the inception date of the policy

and continuing into the policy period, it has no duty to defend any of Tejas’s claims as

they “arise out of or [are] related to” “property damage” to which this endorsement

applies. United relies on Mount Vernon Fire Insurance Co. v. Boyd, No. H-11-3785,

2012 WL 1610745, at *4 (S.D. Tex. May 8, 2012), in support of this proposition.

Mount Vernon is not analogous because it does not deal with general allegations of

liability against multiple parties for generally described property damage.

However, United also relies on Colony Insurance Co. v. Adsil, Inc., No. 4:16-CV-

408, 2016 WL 4617449, at *1 (S.D. Tex. Sept. 2, 2016). Colony illustrates why United is

painting with too broad of a brush in its arguments about the Montrose exclusion. Adsil

manufactured an anti-corrosive product for air conditioning units. Calallen ISD

(CISD) had over 200 air conditioning units installed over five years, involving multiple

contractors. CISD sued Adsil, CJO Enterprises, Weathertrol, Inc., AirPro, Inc., and

others in the underlying case because of problems with corrosion which developed in

the air conditioners in question. In some instances, it appeared that Adsil contracted

23
with CJO to apply the product, and in other instances it appeared that CISD

contracted directly with CJO to apply the product. Although CISD dismissed its

claims against Adsil, Weathertrol and AirPro filed cross-claims against Adsil for

contribution.

Colony insured Adsil and defended the underlying lawsuit under a reservation

of rights. Colony filed suit in federal court, seeking, among other things, a declaration

that it owed no duty to defend or indemnify Adsil in the underlying case, invoking an

exclusion for claims “arising directly or indirectly out of the installation, service or

repair of [Adsil’s] product(s)[] performed by independent contractors or

subcontractors of an insured . . . .” Id. at *1. Colony claimed that this exclusion

encompassed all claims asserted against Adsil, thereby relieving Colony of any duty to

defend or indemnify Adsil. Id. Colony moved for summary judgment on its claims for

declaratory relief of no duty to defend or indemnify Adsil based on this exclusion. Id.

In its opinion, the court noted the applicability of the eight-corners rule, the

liberal construction rules in applying that rule, and the placement of the burden of

proving an exclusion on the insurer. Id. at *6. The court then reviewed the pleadings

in the underlying case relating to Adsil’s role in the sales and application of its

product. The court found conflicting allegations regarding who hired the contractors,

who applied the product, and whether Adsil was responsible for providing inadequate

instructions on the use of its product to the installers. Id. at *7. After noting the

“arising directly or indirectly out of” language in the exclusion, and the broad

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application given to such language by Texas courts requiring only “a causal

connection between the excluded operation and the loss” (as is argued here by

United), the court denied Colony’s motion for summary judgment. Id. at *7–

8 (citations and internal quotation marks omitted). In denying Colony’s motion for

summary judgment on the duty to defend, the court stated,

Examining the pleadings in the underlying lawsuit, it is not clear that all
of the claims against Adsil arise out of the installation of its product by a
subcontractor. Although CISD alleges that Adsil “sub-contracted” with
CJO to install Adsil’s product, Weathertrol’s pleading asserts that
Weathertrol “contracted directly” with CJO to apply Adsil’s product.
AirPro’s cross-claim states only that the coating applied to the air
conditioning units was “manufactured by Adsil and applied by CJO.” It
is possible that both CISD and Weathertrol’s allegations are true—the
underlying lawsuit relates to the installation of more than 200 air
conditioning units over the course of five years, involving multiple
defendants and several contracts. Thus, conduct that is covered under
Colony’s policy exclusion and conduct that falls outside of the exclusion
could have jointly contributed to CISD’s loss . . . .

....

In this case, Weathertrol’s complaint against Adsil alleges conduct
that could have caused CISD’s injury independent of any conduct that
would qualify under Colony’s subcontractor exclusion. Weathertrol
alleges that it contracted directly with CJO, not Adsil. If this is true, CJO
was not a subcontractor for Adsil for this portion of the claims, and any
injury that CISD sustained as a result of Weathertrol’s contract with CJO
falls outside of Colony’s exclusion. This conduct would have caused the
injury separately and independently of any contract work that would fall
under Colony’s exclusion. The Eight Comers Rule dictates that the
allegations as set forth in the underlying complaint should be liberally
construed without reference to their truth or falsity, and that any doubts
about an exclusion should be resolved in favor of the insured. [Willbros
RPI, Inc. v. Cont’l Cas. Co., 601 F.3d 306,] 309 [(5th Cir. 2010) (per
curiam)]; Gore Design [Completions, Ltd. v. Hartford Fire Ins. Co.,] 538 F.3d
[365,] 370 (5th Cir. 2008)]. Furthermore, because this is a motion for

25
 summary judgment, the Court must view all evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in
that party’s favor.

Colony, 2016 WL 4617449, at *8.

So how does Colony guide us in this case? First, it reminds us that it is the

insurer’s burden to establish the applicability of the exclusion as a matter of law based

on the allegations in the underlying pleadings, which are construed liberally in favor of

the insured with all doubts regarding coverage being resolved in favor of the insured.

Id. at *6, *8. Second, where multiple parties are alleged to have caused property

damage over several years, there may be conduct by several parties which may have

contributed to cause the property damage independently or concurrently. Where

claims may involve both covered and excluded causes, the insurer has a duty to

defend the entire case. Id. at *8.

In this case, Icon sued six third-party defendants. It sought contribution or

indemnity from each third-party defendant separately for damages for which it might

be held liable which were caused by each separate third-party defendant. Icon pleaded

the existence of property damage generally and that manifestations of property

damage occurred beginning in mid-2017, but it did not affirmatively allege that

property damage caused by Tejas, the damage being claimed by Icon, occurred or was

in the process of occurring before October 1, 2017. Construing the pleadings liberally

and resolving all doubts in favor of the insured as required, we hold that the Third-

Party Petition does not allege facts which bring this case, in its entirety, within the

26
Montrose exclusion. As a result, United failed to meet its burden to sustain its summary

judgment on the duty to defend. By the same token, the trial court should have

granted Tejas’s motion for partial summary judgment. See Mid-Continent Cas. Co. v.

Krolczyk, 408 S.W.3d 896, 901, 906 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(op. on reh’g) (holding where insurer admitted allegations were covered but

unsuccessfully asserted policy exclusion, insured was entitled to judgment that insurer

owed a duty to defend); Tucker v. Allstate Tex. Lloyds Ins. Co., 180 S.W.3d 880, 884,

889 (Tex. App.—Texarkana 2005, no pet.) (holding where insurer acknowledged that

petition invoked coverage of policy and unsuccessfully relied on policy exclusion,

insured was entitled to judgment on duty to defend).

b. Duty to Indemnify/Insurance Code Violations/Attorney’s Fees

United moved for summary judgment on the duty to indemnify based on its

assertion that the allegations in the Third-Party Petition did not state factual

allegations sufficient to invoke the duty to defend. “If the underlying petition does not

state factual allegations sufficient to invoke the duty to defend, then even proof of all

those allegations could not invoke the insurer’s duty to indemnify.” Lair v. TIG Indem.

Co., No. 02-11-00241-CV, 2011 WL 6415163, at *1 (Tex. App.—Fort Worth Dec. 22,

2011, no pet.) (mem. op.). Having held that the pleadings do make allegations

sufficient to raise the duty to defend, we further hold that summary judgment for

United on the duty to indemnify was improper. See Burlington, 334 S.W.3d at 220.

Likewise, United moved for summary judgment on Tejas’s claims for violations of the

27
Texas Insurance Code and for attorney’s fees under Texas Civil Practice & Remedies

Code Chapter 38 on the ground that it had no duty to defend and indemnify Tejas

under the insurance policy. For the same reason, the trial court’s order granting

summary judgment on those claims was also improper.

IV. Conclusion

We sustain Tejas’s five issues that the trial court erred in granting summary

judgment for United on the duty to defend, the duty to indemnify, and the

extracontractual claims and that the trial court erred in denying Tejas’s Partial Motion

for Summary Judgment. We overrule United’s Cross-Points that: 1) Tejas failed to

meet its burden to prove a duty to defend under United’s policy or an exception to

the Montrose exclusion, 2) the trial court’s order denying Tejas’s Motion for Partial

Summary Judgment is not appealable, and 3) Tejas is not entitled to partial summary

judgment if the judgment for United is reversed. Cross-Point 4 is moot in light of the

relief granted. See Tex. R. App. 47.1.

We reverse the trial court’s judgment granting United’s Motion for Summary

Judgment and denying Tejas’s Motion for Partial Summary Judgment as to United,

and we render judgment in favor of Tejas that United had a duty to defend Icon’s

Third-Party Petition and that United breached that duty by failing to defend Tejas

when requested. We remand this case to the trial court for further proceedings

consistent with this opinion.

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 /s/ Mike Wallach
Mike Wallach
Justice
Delivered: June 3, 2021

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