IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-10465 F I L E D
September 13, 2007
FOX ELECTRIC I LTD
Charles R. Fulbruge III
Clerk
Plaintiff - Appellant
v.
AMERISURE INSURANCE COMPANY
Defendant - Third-Party-Plaintiff-Appellee - Appellant
v.
THE TRAVELERS LLOYDS INSURANCE COMPANY
Third-Party Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Fox Electric I, Ltd. (“Fox”) was the electrical subcontractor for a
condominium project that was the subject of a lawsuit brought by the
condominium owners against the developer and the general contractor. The
condominium owners alleged structural problems and faulty workmanship. The
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-10465
developer brought Fox into the suit through a third-party petition. Fox then filed
a third-party petition against Amerisure Insurance Company (“Amerisure”),
contending that Amerisure owed it a duty to defend in the suit by the developer,
under Fox’s Commercial General Liability Coverage (“CGL”). Amerisure
removed to the federal district court on the basis of diversity. Amerisure and
Fox filed cross motions for summary judgment. Fox appeals the district court’s
grant of summary judgment in favor of Amerisure. Because the injuries alleged
are excluded under the “your work” and “impaired work” exclusions of Fox’s CGL
policy, we AFFIRM.
Fox raises several issues in this appeal. It contends that the district court
erred in its interpretation of Texas’s eight-corners rule by not determining
Amerisure’s duty to defend on the basis of the pleadings in the original suit by
the condominium owners. Fox argues that, under Texas law, including the
Texas Supreme Court’s recent opinion in Lamar Homes Inc. v. Mid-Continent
Cas. Co., No. 05-0834, slip op. 2007 WL 2459193, Aug. 31, 2007 (Tex.), the
underlying petitions alleged a covered “occurrence” of “property damage” under
the terms of the CGL policy. Even assuming these arguments are correct, the
district court did not err, because the only allegations in the underlying petitions
are excluded under the “your work” or “impaired property” exclusions.
Fox’s CGL policy excludes coverage for damage to another’s property
arising out of work or operations performed by Fox (“your work”) and property
that cannot be used because it incorporates Fox’s work or can be restored by
repair of Fox’s work (“impaired property”). The allegations in the underlying
petitions are that Fox negligently performed its contract. The damages alleged
involve either Fox’s own defective work, such as uncaulked penetrations through
fire-rated walls, or caused by Fox’s defective work, such as damage to metal stud
framing and potential loss of use to repair the damage. Amerisure’s duty to
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No. 06-10465
defend is not triggered because even the allegations in the original complaint are
excluded by the “your work” and “impaired property” exclusions.
The district court’s grant of summary judgment is AFFIRMED. The
motions accompanying this appeal to take judicial notice and to dismiss
arguments not considered below are DISMISSED as moot.
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