law-construction (contractors) | insurance coverage | duty to defend construction defect suits
Construction Law Decisions from the Texas Supreme Court
Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co., No. 06-0867 (Tex. 2009)(Willett)
(insurance coverage dispute, duty to defend not triggered by allegations in suit, residential construction
defects)
Frymire Engineering Co. v. Jomar International, No. 06-0755 (Tex. June 13, 2008)(Willett)
(equitable subrogation standing, construction law, contractors, indemnity)
FRYMIRE ENGINEERING COMPANY, INC. BY AND THROUGH REAL PARTY IN INTEREST, LIBERTY
MUTUAL INSURANCE COMPANY v. JOMAR INTERNATIONAL, LTD. AND MIXER S.R.L.; from Dallas
County; 5th district (05-04-01717-CV, 194 SW3d 713, 05-30-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Don R. Willett delivered the opinion of the Court.
FKM Partnership, Ltd. v. Board of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008)
(Phil Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's
recovery of fees, partial nonsuit)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE
UNIVERSITY OF HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1,
04-14-05) 2 petitions
The Court affirms the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.
Grimes Construction, Inc. v. Great American Lloyds Ins. Co., No. 06-0332 (Tex. 2007)(per curiam)
(liability insurance coverage for defective work by contractor)
GRIMES CONSTRUCTION, INC. v. GREAT AMERICAN LLOYDS INSURANCE COMPANY; from Tarrant
County; 2nd district (02-04-00335-CV, 188 S.W.3d 805, 03/09/06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the
trial court.
This declaratory judgment action concerns the duty to defend and indemnify under a commercial general
liability (CGL) policy. The appeal presents issues similar to those decided in Lamar Homes, Inc. v.
Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007).
PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431 (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation, change in plans for condemned property, jurisdiction of trial court, sanctions)
PR INVESTMENTS AND SPECIALTY RETAILERS, INC. v. THE STATE OF TEXAS; from Harris County;
14th district (14-00-00091-CV, 180 S.W.3d 654, 10/13/05)
The Court affirms the court of appeals' judgment.
Justice Don R. Willett delivered the opinion of the Court.
PETITIONS FOR REVIEW DENIED IN CONSTRUCTION LAW CASES FROM
THE COURTS OF APPEALS
09-0335
H.C. BECK PARTNERS, LTD. v. AUSTIN INDEPENDENT SCHOOL DISTRICT; from Travis County; 3rd
district (03-07-00228-CV, ___ SW3d ___, 03-13-09, pet. denied Sep. 2009)(with dissenting opinion by
Henson)(breach of construction contract claim, subrogation rights)
This is an appeal of a summary judgment in favor of a general contractor in a suit for breach of a
construction contract. The claims in the suit were filed by the property owner. However, what is at issue is
the status of the subrogation rights of the owner's insurer and the effect of certain contractual provisions
on those rights. We reverse the summary judgment and remand for further proceedings consistent with
this opinion.
Appellant Austin Independent School District (AISD) contracted with appellee H. C. Beck Partners, Ltd. for
mold remediation and renovations to an elementary school. In the course of the work, temporary roofing
installed by a subcontractor of H. C. Beck failed to remain watertight during a rainstorm. The cost to repair
the resulting damage to the building and its contents was paid by AISD's insurance carrier, Travelers
Lloyds Insurance Company. AISD filed this suit against H. C. Beck and other parties on August 25, 2003. In
accordance with the insurance policy, Travelers is subrogated with respect to AISD's claims. H. C. Beck
filed a motion for summary judgment asserting that Travelers had no right of subrogation or, alternatively,
if Travelers had a right of subrogation, AISD breached the construction contract by failing to obtain an
insurance policy that included a waiver of subrogation rights, and thereby released or waived its claims
against H. C. Beck. The district court granted H. C. Beck's motion for summary judgment on AISD's claims
against H. C. Beck without specifying a basis. AISD appeals the judgment
09-0398
C. SPRINGS 300, LTD. v. HARTFORD FIRE INSURANCE COMPANY; from Harris County; 1st district
(01-06-00065-CV, 287 SW3d 771, 04-16-09, pet. denied Sep. 2009)(construction law, bonding)
09-0437
ERJS, INC. F/K/A AMERICA'S GREAT HOMES, INC., AMERICA'S GREAT HOMES, LTD. AND SURETEC
INSURANCE COMPANY v. TRUSS WORLD, INC. AND ALL TEX FINANCIAL, INC.; from Montgomery County;
9th district (09-07-00432-CV, 284 SW3d 393, 02-12-09, pet. denied July 2009) (construction law, M&M
lien, derivative claimant, breach of contract)
08-0824
THE DANESHJOU COMPANY, INC. v. JOE GOERGEN; from Travis County; 3rd district
(03-04-00730-CV, ___ SW3d ___, 08-08-08)(construction law)
This appeal involves claims by a general contractor against its subcontractors. The Daneshjou Company,
Inc. ("DCI") was retained to build a house for Sandra Bullock. DCI hired several subcontractors for the
project, including appellees Joe Goergen, CNA Construction, Inc., Modern Design and Construction, Inc.,
Loredo Truss Company, Inc., Loma Excavation, Inc., G. P. Equipment Company, and W. Lee Brown &
Sons, Inc. DCI and Bullock (together with John Bullock) filed suits against each other, and DCI filed
third-party claims against its subcontractors to recover direct damages and for contribution and indemnity
in the event it had to pay damages to the Bullocks. The appellee subcontractors filed motions for summary
judgment and/or to dismiss. The trial court granted the motions in part or in whole, eventually disposing of
all claims between DCI and these subcontractors. The trial court then severed the claims involving these
subcontractors from the other claims in the case, and proceeded to trial on the remaining claims ("the
Bullock trial"). DCI appeals the decisions in the cases involving these subcontractors.
DCI argues (1) that genuine issues of material fact exist, precluding summary judgment; (2) that severing
the claims against the subcontractors while admitting evidence of their allegedly deficient work prejudiced
DCI at the Bullock trial; and (3) that DCI should have been allowed to pursue its claims for contribution and
indemnity against the subcontractors after the Bullock trial.
We find no reversible error in the trial court rulings challenged by DCI on appeal.
08-0824
THE DANESHJOU COMPANY, INC. v. JOE GOERGEN; from Travis County; 3rd district
(03-04-00730-CV, ___ SW3d ___, 08-08-08)(construction law dispute)
This appeal involves claims by a general contractor against its subcontractors. The Daneshjou Company,
Inc. ("DCI") was retained to build a house for Sandra Bullock. DCI hired several subcontractors for the
project, including appellees Joe Goergen, CNA Construction, Inc., Modern Design and Construction, Inc.,
Loredo Truss Company, Inc., Loma Excavation, Inc., G. P. Equipment Company, and W. Lee Brown &
Sons, Inc. DCI and Bullock (together with John Bullock) filed suits against each other, and DCI filed
third-party claims against its subcontractors to recover direct damages and for contribution and indemnity
in the event it had to pay damages to the Bullocks. The appellee subcontractors filed motions for summary
judgment and/or to dismiss. The trial court granted the motions in part or in whole, eventually disposing of
all claims between DCI and these subcontractors. The trial court then severed the claims involving these
subcontractors from the other claims in the case, and proceeded to trial on the remaining claims ("the
Bullock trial"). DCI appeals the decisions in the cases involving these subcontractors.
DCI argues (1) that genuine issues of material fact exist, precluding summary judgment; (2) that severing
the claims against the subcontractors while admitting evidence of their allegedly deficient work prejudiced
DCI at the Bullock trial; and (3) that DCI should have been allowed to pursue its claims for contribution and
indemnity against the subcontractors after the Bullock trial.
We find no reversible error in the trial court rulings challenged by DCI on appeal.
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