United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 12, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20778
RICHARD FIESS AND STEPHANIE FIESS,
Plaintiffs-Appellants,
versus
STATE FARM LLOYDS
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In June 2003, a federal district court granted summary
judgment in favor of the defendant, State Farms Lloyds, holding,
inter alia, that the Fiesses’ Homeowners Form B (HO-B) policy did
not cover mold contamination. The Fiesses appealed, claiming that
the ensuing-loss provision did cover such mold contamination, and
urging that, in any event, the mold contamination was also covered
by an exclusion-repeal provision for plumbing and HVAC leaks.
On December 7, 2004, this court declined to consider the
Fiesses’ exclusion-repeal argument, noting that we lacked
jurisdiction to address the issue due to a defect in the Fiesses’
Notice of Appeal.1 In that same opinion, this court certified the
ensuing-loss question to the Supreme Court of Texas, thus:
Does the ensuing loss provision contained in Section I-
Exclusions, part 1(f) of the Homeowners Form B (HO-B)
insurance policy as prescribed by the Texas Department of
Insurance, effective July 8, 1992 (Revised January 1,
1996), when read in conjunction with the remainder of the
policy, provide coverage for mold contamination caused by
water damage that is otherwise covered under the policy?
On August 31, 2006, the Supreme Court of Texas issued its opinion
in response to our certified question, holding that the ensuing-
loss provision did not provide coverage for mold contamination.2
In light of this decision by the Supreme Court of Texas, the
judgment of the district court is
AFFIRMED.
1
The factual circumstances and procedural history of this case are fully
recounted in our published opinion certifying the question. Fiess v. State
Farm Lloyds, 392 F.3d 802 (5th Cir. 2004).
2
See Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006).
2