Balandran v. Safeco Insurance Co. of America

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-50013

JOE BALANDRAN; DOLORES BALANDRAN,

Plaintiffs-Appellants,

VERSUS

SAFECO INSURANCE COMPANY OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas

July 24, 1998
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL, District
Judge.*
PER CURIAM:

In October 1996, this case was tried to a jury in the United

States District Court for the Western District of Texas. The jury

found that the damage to the Balandran home was caused by a leaky

sewer line and awarded the Balandrans $66,500. Shortly thereafter,

Safeco moved for judgment as a matter of law asserting that the

*
District Judge for the Southern District of Texas,
sitting by designation.
Balandrans’ claim was excluded from coverage under Subsection (h)

of the insurance policy in question. The district court granted

the motion and entered judgment in favor of Safeco. The Balandrans

appealed, claiming that Subsection (h) does not exclude from

coverage losses that fall within the accidental discharge peril.

On November 18, 1997, this Court certified the following

question to the Supreme Court of Texas.

Whether the exclusion in Subsection (h) of the
1991 Texas Standard Homeowner Policy--Form B
excludes from coverage damage to a dwelling caused
by a movement of its foundation that was caused by
an underground plumbing leak?

The factual circumstances and procedural background involved in

this controversy are fully described in our published opinion

certifying this question. Balandran v. Safeco Ins. Co. of America,

129 F.3d 747 (5th Cir. 1997).

On July 3, 1998, the Supreme Court of Texas issued its opinion

and judgment in response to our certified question, holding that:

1) Exclusion 1(h) of the 1991 Texas Standard
Homeowner Policy--Form B does not exclude from
coverage damage to a dwelling caused by a
movement of its foundation that was caused by
an underground plumbing leak.

2) Joe Balandran and Delores Balandran shall
recover from Safeco Insurance Company of
America, which shall pay the costs in this
Court.

See Balandran v. Safeco Ins. Co. of America, No. 97-1093, 1998 WL

352968 (Tex. S. Ct. July 3, 1998).

In light of the decision of the Supreme Court of Texas, we now

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vacate the judgment entered by the district court in favor of

Safeco; and remand this case to the district court for entry of

judgment on the jury verdict consistent with the decision of the

Supreme Court of Texas.

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