United States Court of Appeals
Fifth Circuit
F I L E D
May 19, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_______________________ Clerk
No. 02-50028
_______________________
U.E. TEXAS ONE-BARRINGTON, LTD., ET AL.
Plaintiffs
U.E. TEXAS ONE-BARRINGTON, LTD.
Plaintiff - Appellant
versus
GENERAL STAR INDEMNITY COMPANY; FIREMAN’S FUND INSURANCE COMPANY OF
OHIO,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JONES, SMITH and SILER1, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant U.E. Texas One-Barrington, Ltd. (“Texas One”)
appeals the district court’s grant of summary judgment in favor of
appellees General Star Indemnity Company (“General Star”) and
1
Judge of the United States Court of Appeals for the Sixth
Circuit, sitting by designation.
1
Fireman’s Fund Insurance Company (“Fireman’s Fund”) on its claims
for insurance coverage relating to damage to the Oak Meadow
Apartment complex caused by water leaking from the plumbing system.
On appeal, Texas One argues that the district court erred in
holding that (1) General Star is not liable for access costs
because the damage caused by long-term water leaks are not covered
water damage under the General Star policy and (2) the plumbing
leaks under each building are, as a matter of law, “separate
occurrences” for purposes of determining deductibles under the
Fireman’s Fund excess coverage policy. Finding no reversible
error, we affirm.
BACKGROUND
Texas One, at all times relevant to this suit, owned the
Oak Meadow Apartments complex (“Oak Meadows”) in San Antonio,
Texas. Oak Meadows, built in 1974, consists of thirty residential
buildings, three office buildings, and other facilities. Each
residential building contains at least four separate apartments.
General Star insured Oak Meadow pursuant to a commercial property
policy effective from October 21, 1995 to October 21, 1996.
Fireman’s Fund provided excess coverage pursuant to a commercial
excess property policy effective from October 21, 1995 to October
21, 1996. Around October 1, 1996, Texas One discovered that
several of the buildings had suffered foundation movement and above
ground damage. The foundation movement and damage resulted from
2
moisture changes in the soil beneath the foundations. Although the
cause of these moisture changes remains disputed, tests revealed
that nineteen buildings in the complex had experienced plumbing
leaks. Texas One admits that it does not know when any of the
leaks began. The parties agree that the leaks existed continuously
and repeatedly for more than 14 days prior to discovery of the
damage. The parties also stipulated that the leaks under any
particular building foundation at the property only affected the
foundation of that particular building and did not contribute to
the movement of any other building foundation at the property nor
did they cause any other plumbing leaks.
In November 1999, Texas One filed suit in Texas state
court against General Star and Fireman’s Fund for breach of
contract arising out of the insurers’ refusal to pay on Texas One’s
claims. General Star and Fireman’s Fund removed the case to
federal court and subsequently moved for summary judgment.
STANDARD OF REVIEW
We review a district court's grant of summary judgment de
novo. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.
1995) (en banc). Summary judgment is appropriate when, viewing the
evidence and all justifiable inferences in the light most favorable
to the non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Hunt v. Cromartie, 526 U.S. 541, 552, 119 S. Ct. 1545, 1551-52, 143
3
L. Ed. 2d 731 (1999); see also Fed. R. Civ. P. 56(c). If the
moving party meets its burden, the non-movant must designate
specific facts showing there is a genuine issue for trial. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
DISCUSSION
General Star
Texas One argues that General Star was obliged to pay for
costs incurred by Texas One in accessing the plumbing system for
repair. Texas One raises two arguments in support of its claim:
(1) that the language of the General Star policy requires payment
of Texas One’s access costs even though payment for the damage
caused by the leaks is barred under an exclusionary clause and (2)
that General Star admitted that it was obliged to pay for the
access costs because it made a partial payment on Texas One’s
access cost claims. Texas One’s arguments are without merit. This
court recently addressed Texas One’s arguments in a case
interpreting policy language identical to the language at issue in
this case and held that access costs were not recoverable. See Gen.
Accident Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d 651,
656 (5th Cir. 2002).
Fireman’s Fund
4
Texas One also contends that the district court erred in
determining that the damage to each of the nineteen buildings is a
separate occurrence under the Fireman’s Fund excess coverage policy
for which Texas One must pay nineteen deductibles. Texas One
argues that although each building was damaged by different leaks,
there is still only one occurrence for purposes of the Fireman’s
Fund policy. Texas One’s argument rests upon its contention that
all of the leaks can be traced back to defects in the materials and
installation of the underground plumbing system. The Fireman's
Fund policy, in pertinent part, provides:
This Company shall be liable in respect of each and
every loss occurrence, irrespective of the number and
kinds of risks involved, for 100% of the ultimate net
loss excess over and above $1,000,000 ultimate net loss
to the Insured in each and every loss occurrence.
* * *
The term loss occurrence means the total loss by
perils insured against arising out of a single event.
When the term applies to loss or losses from the perils
of tornado, cyclone, hurricane, windstorm, hail, flood,
earthquake, volcanic eruption, riots, riots attending a
strike, civil commotion, and vandalism and malicious
mischief, a single event means all losses whenever
occurring which directly results from such perils during
a continuous period of 72 hours.
The policy provides for a maximum payout of $13,267,000 per
occurrence.
The damage to the nineteen buildings resulted in more
than $1,000,000 net loss to Texas One. However, the damage to any
one building did not exceed $1,000,000. Thus, we are called upon
to interpret the term “occurrence” and determine whether the damage
5
to the nineteen buildings constitutes one occurrence (resulting in
one deductible) or nineteen occurrences (resulting in nineteen
deductibles).
Neither party contends that "occurrence" is ambiguous in
this contract nor that our determination of the number of
occurrences hinges on resolution of a factual dispute. Thus, the
interpretation of “occurrence” as used in the contract is a
question of law. Ran-Nan Inc. v. General Accident Ins. Co., 252
F.3d 738, 739 (5th Cir. 2001) (per curiam). Under Texas law, “the
proper focus in interpreting ‘occurrence’ is on the events that
cause the injuries and give rise to the insured’s liability, rather
than on the number of injurious effects.”2 Id. at 740 (quoting
2
The dissent goes to substantial effort to distinguish cases
defining “occurrence” in general liability policies from
“occurrence” in property loss policies. Even if the dissent’s
policy arguments are correct, however, this court has already
rejected any such distinction. In Ran-Nan Inc., we stated that
General Accident contends that decisions utilizing
"cause" analysis such as H.E. Butt and Maurice Pincoffs
are distinguishable as construing general liability
insurance policies instead of employee dishonesty
insurance policies. Not only does the company neglect to
cite any authority supporting this contention, but it
also fails to explain why, in determining the number of
"occurrences", employee dishonesty policies are different
than general liability policies. It is true that no Texas
case specifically applies "cause" analysis to employee
dishonesty policies, but this widely accepted method for
calculating the number of "occurrences" is consistent
with the general principles of Texas law.
252 F.3d at 740. For present purposes, employee dishonesty
policies are indistinguishable from property loss policies.
6
H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co., 150 F.3d 526,
530 (5th Cir. 1998)).
In understanding how to apply this test, we are guided by
a prior decision applying Texas law to a policy containing language
similar to that found in the Fireman’s Fund policy. Goose Creek
Consol. I.S.D. v. Cont’l Cas. Co., 658 S.W.2d 338 (Tex. App. --
Houston [1st Dist.] 1983, no writ) dealt with two fires occurring
at two different schools at different locations and at different
times. The insurance policy in Goose Creek stated that a “loss
occurrence” referred to “the total loss by perils insured against
arising out of a single event.” Id. at 340. This is the same
definition found in the Fireman’s Fund policy. Hoping to pay only
one deductible, the school district sought to prove that the
damages arose from the work of a single arsonist on a single
morning. The court held that regardless of the presence or absence
of a single arsonist, there were two "occurrences" as a matter of
law due to "the fact that two fires distinguishable in space and
time occurred and that one did not cause the other." Id. at 341.
Similarly, Texas One's property experienced multiple leaks
distinguishable in space and time.3
3
And as noted previously, the parties have stipulated that the
damage to each building was caused by leaks under that particular
building and that each leak had no effect on any other building.
7
Goose Creek instructs us not to look to any overarching
cause, but rather to focus on the event that gave rise to Fireman’s
Fund’s liability under the policy. For example, in Goose Creek the
court did not look to the existence of a single arsonist, but
rather to the number of fires that caused the buildings to burn.
Thus, in determining the number of "occurrences" under the
Fireman’s Fund policy, we should not focus on the alleged
overarching cause, but rather on the specific event that caused the
loss. In this case the losses arose when the pipes broke, not when
they were installed. The parties have stipulated that a different
leak was responsible for the damage to each building, and as such
we agree with the district court that each leak constitutes a
separate occurrence as a matter of law.
To point to the installation of the pipes as the single
event which gave rise to the damage to the nineteen buildings
proves too much. Of course it is true that had the plumbing system
never been installed the leaks would not have occurred. In this
sense, it is true that the leaks which independently damaged the
nineteen buildings arose from the same event. However, to look
this far back would render any damage to the complex occurring at
any time related to the plumbing as arising from the same event.
Since no one building suffered a $1,000,000 net loss,
Texas One has not met the $1,000,000 per occurrence threshold to
recover under the Fireman’s Fund policy. Therefore, the district
8
court was correct in granting summary judgment in favor of
Fireman’s Fund.
CONCLUSION
Upon review of the record, we find that summary judgment
in favor of General Star was proper in light of this court’s
decision in Unity. Furthermore, summary judgment in favor of
Fireman’s Fund was proper because the net loss attributable to each
occurrence was less than the deductible under the policy. Finding
no reversible error, we AFFIRM.
AFFIRMED.
9
JERRY E. SMITH, Circuit Judge, concurring in part and dissenting in
part:
Texas One has raised a fact question as to whether the
damage to its buildings constituted one or nineteen loss
occurrences under the Fireman’s Fund excess coverage policy. I
disagree with the majority’s reliance on caselaw involving
liability policies and with the result it reaches by employing this
approach. Accordingly, I respectfully dissent from the portion of
Judge Jones’s excellent and careful opinion that deals with
Fireman’s Fund.
I.
A.
Texas law takes a slightly different approach for determining
the number of “occurrences” under policies designed to protect the
insured from liability to others (“liability policies”) from the
approach it takes for determining the number of “loss occurrences”
under policies designed to protect the insured from damage or loss
to property owned by the insured (“loss policies”). For loss poli-
cies, Texas courts apply a “cause” test, which determines the num-
ber of loss occurrences based on the number of events that caused
the loss or losses at issue. Goose Creek Consol. Indep. Sch. Dist.
v. Continental Cas. Co., 658 S.W.2d 338, 340-41 (Tex. App.SSHouston
[1st Dist.] 1983, no writ). For liability policies, the number of
occurrences is determined by finding the number of “events or inci-
dents for which [the insured] is liable.” Maurice Pincoffs Co. v.
St. Paul Fire & Marine Ins. Co., 447 F.2d 204, 206 (5th Cir. 1971).
This approach has been described as the “liability-triggering
event” test.4
The approach to be employed is determined by the type of
injury at issue. The injury insured against under a loss policy is
direct physical damage to or loss of property, and the number of
occurrences is determined not by the number of losses or types of
damage, but by the number of events that caused loss and/or damage.
Liability policies operate only when the insured has a civil
liability to one or more nonparties. The injury is the liability,
and therefore courts look for the number of events that cause
liability.
The “liability-triggering event” test may be viewed as a
specialized application of the “cause” test. The court still looks
4
H. E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co., 150 F.3d
526, 535 (5th Cir. 1998) (Benavides, J., concurring). Texas state
courts have adopted the Pincoffs approach in liability policy
cases. See, e.g., State Farm Lloyds, Inc. v. Williams, 960 S.W.2d
781, 784-85 (Tex. App.SSDallas 1997, writ dism’d by agr.) (relying
on Pincoffs in finding that three random gunshots fired by one
person constituted three occurrences because they caused three
liability-triggering injuries); but see Foust v. Ranger Ins. Co.,
975 S.W.2d 329, 334 & n.3 (Tex. App.SSSan Antonio 1997, writ
denied) (finding that multiple passes by a crop duster together
formed one occurrence and distinguishing Williams because the
Williams policy did not define occurrence, whereas the definition
of occurrence found in the policy at issue included “repeated
exposure to [the same general] conditions”).
11
to the cause of the injury, but the injury insured against is
liability, not property damage or theft. Whenever an insured party
is liable to other parties for civil damages, there often will be
contemporaneous and related injuries to the insured and to other
parties. The test crafted by Pincoffs focuses the inquiry on the
relevant injury and prevents the court from being distracted by
these other injuries.
Consideration of the facts of Pincoffs elucidates this dis-
tinction. Pincoffs, the insured, bought a large amount of contam-
inated birdseed and sold it to eight dealers, Pincoffs, 447 F.2d at
205, who then sold it to numerous bird owners, killing many pets.
The aggrieved bird owners made claims against their respective
dealers, not against Pincoffs directly. The dealers then made
claims against Pincoffs, which in turn sought coverage under its
liability policy. Id. We concluded that there had been eight
occurrences, because there were eight sales that caused Pincoffs’s
liability for the type of injury protected under the policy.
Because liability was the injury insured against, “[i]f
Pincoffs had destroyed the seed before sale, for instance, there
would be no occurrence at all for which the insured would be li-
able.” Id. at 206. But under a loss policy covering loss or
spoilage of inventory, the destruction of the seed before sale
would not have prevented the occurrence of an insurable event. The
12
loss occurrence would have been the event that contaminated the
birdseed, or, if it was already contaminated before Pincoffs re-
ceived it, the occurrence would have been Pincoffs’s purchase of
the seed. Any subsequent sales of the birdseed would have been
irrelevant to determining the number of loss occurrences.
For the above reasons, cases that determine the number of
occurrences under liability policies have limited applicability
when determining the number of loss occurrences under loss poli-
cies. Characteristics unique to liability policies determine what
losses are relevant. Even under otherwise identical facts, insur-
ance policies, depending on their purposes and definitions em-
ployed, may focus on different losses or interpret the underlying
events differently.5
B.
Twice recently, this court inadvertently has brought confu-
sion to this area by citing caselaw employing both the liability
5
Definitions of “occurrence” under liability policies tend to
be similar to each other and dissimilar to the definitions of “loss
occurrence” under loss policies. These variances in the meanings
of key terms may advise different outcomes to otherwise similar
cases. See Foust, 975 S.W.2d at 334; see also Goose Creek, 658
S.W.2d at 340 (“[B]oth parties have cited numerous cases touching
upon “accident” or “occurrence,” but many of the cases do not
define these terms, and no case has been cited or found which
attempted to define “single event.” We conclude that all cases
cited are distinguishable from the instant case and that no useful
purpose would be served by discussing the holdings of these
cases.”).
13
policy and loss policy approaches, without noting the type of poli-
cy at issue. See H.E. Butt, 150 F.3d at 530 (interpreting a lia-
bility policy); Ran-Nan Inc. v. Gen. Accident Ins. Co. of Am., 252
F.3d 738, 740 (5th Cir. 2001) (per curiam) (interpreting a policy
covering losses caused by employee dishonesty). Neither case,
however, mandates the approach taken by the majority.
In H.E. Butt, 150 F.3d at 528, we considered the number of
occurrences under a liability policy for abuse of children by an
employee of insured’s grocery store. Though the H.E. Butt majority
cited cases employing both approaches, including Pincoffs and Goose
Creek, id. at 530, it appears to have applied a “cause” test. It
determined that there had been two occurrences, because the “im-
mediate cause[s]” of the two injuries were separate incidents com-
mitted on two different days. Id. at 531, 535. The concurring
opinion also found two occurrences, but did so by focusing on the
number of “liability-triggering events,” finding two occurrences
because the claims against H.E. Butt arose from two separate acts
of abuse.6
6
H. E. Butt, 150 F.3d at 535 (Benavides, J., concurring).
Though I agree with most of Judge Benavides’s reasoning, I disagree
with his description of Goose Creek as applying a “liability-
triggering event” test. Id. at 535-36 (citing Goose Creek, 658
S.W.2d at 339). Goose Creek concerned a loss policy, 658 S.W.2d at
339, and never refers to the insured’s liability.
14
Both opinions focused on the same events, but for different
reasons: the majority because those two events caused the injuries
to the child, the concurrence because those events triggered the
civil liability of the insured. Because the third member of the
panel joined in the judgment only, H.E. Butt, 150 F.3d at 535,
neither opinion’s reasoning carries precedential weight.7
Ran-Nan considered the number of occurrences under an employee
dishonesty policy where two employees had separately stolen more
than $30,000 each. See 252 F.3d at 738, 740. As the majority
notes, in Ran-Nan we quoted the H.E. Butt majority’s statement that
the court should look to the events “‘that cause the injuries and
give rise to the insured’s liability[.]’” Id. at 740 (quoting H.E.
Butt, 150 F.3d at 530). We went on, however, to cite Goose Creek
and apply its “cause” test, concluding that there were two occur-
rences because the losses were caused by two different employees in
separate and independent acts of employee dishonesty.8 We made no
7
The majority argued that the two approaches were not
inconsistent. See H. E. Butt, 150 F.3d at 530 n.2. The two
approaches yielded the same result in that case, but would not in
all cases. Though the proper test under liability policies is not
before us, I do believe the concurrence is the better statement of
the law.
8
Ran-Nan was explicit in its endorsement of the “cause” test.
The few Texas cases that have addressed this issue apply
a “cause” analysis in determining whether a set of facts
involves one or several occurrences. This “cause”
(continued...)
15
attempt to determine what events “gave rise to the insured’s lia-
bility.” Such an approach has never been utilized when
interpreting a loss policy, by this court or any Texas court.
II.
A.
Though the majority is correct that Ran-Nan quoted from and
endorsed the “liability-triggering event” test from H. E. Butt and
Pincoffs, this test has no applicability to the facts at issue
here. H.E. Butt and Pincoffs held that the court should look to
the events that gave rise to the liability of the insured to other
parties. The insured here, Texas One, has no liability to anyone.
The only liability at issue is the insurer’s to the insured. As
applied to this case, then, this test points to no events at all.9
Perhaps influenced by the desire to blend the “liability-
triggering event” test with the relevant law as established by
Goose Creek, the majority suggests that “Goose Creek instructs us
8
(...continued)
approach to analyzing the number of “occurrences” is
utilized by the great majority of courts and
jurisdictions nationwide.
Ran-Nan, 252 F.3d at 740 (citations omitted).
9
Similarly, the plaintiffs in Ran-Nan, victims of employee
theft, had no liability to anyone, which explains why this court,
despite citing H.E. Butt and Pincoffs, made no attempt to apply the
“liability-triggering event” test to the facts of that case.
16
. . . to focus on the event that gave rise to Fireman’s Fund’s
liability under the policy.” This looks similar to H.E. Butt’s
admonition to look to the events that “give rise to the insured's
liability,” H.E. Butt, 150 F.3d 530, the difference being, of
course, that Fireman’s Fund is the insurer defendant, not the
insured plaintiff.
The majority’s characterization of Goose Creek creates a test
with no useful meaning. The loss occurrence definition is designed
to help the parties determine the event or events that give rise to
the insurer’s liability. The majority holds that the number of
events that cause the insurer’s liability determines the number of
loss occurrences, creating a circular definition.
B.
Despite the instruction of Ran-Nan and Goose Creek to find the
“cause” of the loss, the majority avoids directly tackling this re-
quirement. It comes closest when it states that “a different leak
was responsible for the damage to each building, and as such . . .
each leak constitutes a separate occurrence[.]” The loss was
caused by the leaks, and, the majority’s statement implies, the
leaks caused the leaks.
The leaks may have happened as a result of the passage of time
and normal wear and tear, eighteen natural occurrences that were
17
not the result of any defect. Or, as the plaintiff contends, they
may have resulted from faulty workmanship or materials. This dis-
pute is not a question of law. We must assume, for summary judg-
ment purposes, that the leaks were caused by a single event: the
installation of faulty plumbing. And we have no undisputed evi-
dence of any intervening cause.10 It is appropriate, in these cir-
cumstances, that a jury resolve the fact question of which event or
events caused the damage.
The majority draws analogy to Goose Creek, where the court
found that two fires could not be considered one event.11 The court
started with the proposition that the setting of the two fires
caused the loss. The setting of the two fires could not be linked
as one event, because the two events were “distinguishable in space
10
Some courts have suggested that an intervening cause might
change the number of occurrences. See Home Indem. Co. v. City of
Mobile, 749 F.2d 659, 662 (11th Cir. 1988) (finding under Alabama
law that “if one cause is interrupted and replaced by another
intervening cause, the chain of causation is broken and more than
one occurrence has taken place”); Appalachian Ins. Co. v. Liberty
Mut. Ins. Co., 676 F.2d 56, 61 (3d Cir. 1982) (stating that under
“cause” test employed in a majority of jurisdictions, “the court
asks if there was but one proximate, uninterrupted, and continuing
cause which resulted in all of the injuries and damage”) (internal
quotation marks and other punctuation omitted).
11
Goose Creek, 658 S.W.2d at 341. As the majority appears to
concede, Goose Creek is the most appropriate case to consider
because it involved a loss policy with a definition of loss
occurrence that is very similar to the one at issue here. 658
S.W.2d at 640 (defining a loss occurrence as “the total loss by
perils insured against arising out of a single event”).
18
and time,” and “one did not cause the other.” Goose Creek, 658
S.W.2d at 641.
We must assume that all of the leaks do share a single cause.
It is not relevant that the leaks did not affect buildings other
than the ones above them.12 Though “one [leak] did not cause the
other,” Texas One contends they were all caused by the pluming
installation, an event not “distinguishable in space and time oc-
curred.” Unlike the two fires in Goose Creek, the plumbing in-
stallation at the nineteen buildings was “part of a process of con-
tinuum.” Id. at 640. The majority notes that the installation was
set apart in time from the manifestation of the damage. Goose
Creek, however, considered the impact of a delay between two causal
events “distinguishable in space and time” from each other, not a
delay between a casual event and the manifestations of damage.
Although it is instinctively appealing to assume that the
lengthy time lag between the plumbing installation and the loss
implies a break in the casual chain, nothing in the policy’s defi-
nition of loss occurrence justifies making this assumption as a
12
These buildings join to form a single apartment complex,
built together with, the plaintiff would contend, a single
defective plumbing system. The buildings are insured together as
a single property, and are not far apart as in Goose Creek. If
this case involved one house, and that faulty plumbing caused
damaging leaks in the kitchen and the bathrooms, would the majority
find multiple loss occurrences if the leaks in the kitchen did not
cause any damage to the bathrooms?
19
matter of law. The Fireman’s Fund definition of “loss occurrence”
contains no requirement that losses caused by a single event must
manifest within a certain time frame compared to each other.
Fireman’s Fund has not even argued that the policy will not
cover the loss if it arose out of an event that occurred many years
earlier.13 Instead, it suggests that the court should pretend that
the event is not relevant, because it took place too long ago.
Without some basis in the language of the policy, I see no reason
to do so. Taking Texas One’s version of the disputed facts to be
true, the damage to the nineteen buildings is rightly viewed as one
loss occurrence.14
13
There is a distinction here between when the losses
manifested and when the event that gave rise to those losses
occurred. It is a different matter whether the policy covers
losses that actually manifest before a certain date. See Am. Home
Assurance Co. v. Unitramp, Ltd., 146 F.3d 311, 314 (5th Cir. 1998)
(holding that an injury becomes manifest when it is apparent or
capable of easy perception). Here, there is no dispute that the
losses all manifested during the policy period.
Consider a hybrid between the facts of Goose Creek and this
case, where an arsonist sets fire to the woods near the Texas One
property, eventually causing eighteen buildings on the property to
burn down. The court would have little difficulty determining that
the fires were all caused by one event, meaning there was one loss
occurrence. The court would be unconcerned with whether one build-
ing caught fire immediately and was consumed in minutes while
another building caught fire hours later and then slowly burned for
two days. It also would not matter whether the fire spread
directly from the trees to all the buildings independently or
whether it had spread from one building to another in a chain.
14
In Unity/ Waterford-Fair Oaks, Ltd. v. Fireman’s Fund Ins.
(continued...)
20
Summary judgment was improper as to this issue. Because it is
still disputed whether the leaks were caused by defective
workmanship or materials, I would reverse and remand for a factual
determination. Accordingly, I respectfully concur in part and
dissent in part.
14
(...continued)
Co., 2001 U.S. Dist. LEXIS 24818 (W.D. Tex. June 20, 2001), the
insured proved nearly identical facts to those alleged by Texas One
here. The court concluded that “the damages arising out of the
failure of the underground plumbing system constitute a single loss
occurrence within the meaning of the Fireman’s Fund policy.” Id. at
*6. The case was appealed, but not as to this holding. See Gen.
Accident Ins. Co. v. Unity/Waterford-Fair Oaks Ltd. P’ship, 288
F.3d 651 (5th Cir. 2002).
21