law-construction (contractors) | insurance coverage | duty to defend construction defect suits
Construction Law Decisions from the Texas Supreme Court (Tex. 2008)
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.