Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London
Supreme Court of Texas
October 6, 2009, Argued; December 17, 2010, Opinion Delivered
[*121] We deny Gilbert Texas Construction's motion for rehearing. We withdraw our opinion of June 4, 2010 and substitute the following in its place.
During a Dallas Area Rapid Transit Authority (DART) construction project, unusually heavy rains resulted in water damage to a building adjacent to the construction site. The owner of the building sued DART and its contractors, alleging that construction activities caused the water damage. The building owner sued the general contractor in tort and for breach of contract. In the breach of contract claim, the building owner alleged that the general contractor assumed liability for the damage under its contract with DART. Except for the breach of contract claim, the trial court granted summary judgment for the general contractor on the basis of governmental immunity. The general contractor later settled the breach of contract claim and sought indemnity from its insurers. The excess insurer denied coverage.
We address two issues. The [**2] first is whether the contractual liability exclusion in a Commercial General Liability (CGL) policy excludes coverage for property damage when the only basis for liability is that the insured contractually agreed to be responsible for the damage, and if so, whether an exception to the exclusion operates to restore coverage. We hold that the exclusion applies, the exception does not, and there is no coverage. The second issue is whether Gilbert is entitled to recover its settlement payment under an estoppel theory. We hold it is not.
A. The Underlying Suit
In 1993, DART contracted with Gilbert Texas Construction, L.P., as general contractor, [*122] to construct a light rail system. One part of the contract required Gilbert to protect the work site and surrounding property:
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327 S.W.3d 118 *; 2010 Tex. LEXIS 965 **; 54 Tex. Sup. J. 367
GILBERT TEXAS CONSTRUCTION, L.P., PETITIONER, v. UNDERWRITERS AT LLOYD'S LONDON, RESPONDENT
Prior History: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS.
Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 2010 Tex. LEXIS 407 (Tex., 2010)
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