Arch Insurance Company, as Subrogee and Indemnifier of Linbeck Group, LLC v. Soprema, Inc. ( 2022 )

AFFIRMED and Opinion Filed February 24, 2022
In The
Court of Appeals
Srttth Aratrict of Cexas at Dallas
No. 05-20-00586-CV
ARCH INSURANCE COMPANY, AS SUBROGEE AND INDEMNIFIER
OF LINBECK GROUP, LLC, Appellant
V.
SOPREMA, INC., Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-17759
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
Appellant Arch Insurance Company, as subrogee and indemnifier of Linbeck
Group, LLC, appeals the trial court’s order granting appellee Soprema, Inc.’s motion
for summary judgment. The central issue in this appeal is whether the waiver-of-
subrogation paragraph contained in the construction contract was triggered when
Arch funded a settlement, under a commercial general liability (CGL) insurance
policy, to pay for the repair or replacement of the building’s damaged roof allegedly
caused, in part, by a defective roofing membrane supplied by Soprema, a sub-
subcontractor on the construction project. Because we conclude that the damages to
the roof were covered by “property insurance applicable to the Work” as evidenced
by Arch’s payment under the CGL policy covering property damage, we affirm the
trial court’s order granting summary judgment for Soprema.
Background
The Dallas Center for the Performing Arts Foundation, Inc. (DCPAF)
contracted with Linbeck in September 2006 to build the Margot and Bill Winspear
Opera House, now known as the AT&T Performing Arts Center (PAC), in the Dallas
Arts District. Linbeck served as the general contractor on the project and
subcontracted out parts of the project, including the roofing installation. The roofing
subcontractor, Anchor Roofing Systems, Ltd. (who is no longer a party to this appeal
because the parties reached a settlement agreement while the appeal was pending),
contracted with Soprema to supply the roofing membrane.
After the PAC opened in October 2009, the DCPAF discovered blistering on
the roof, which had resulted in water intrusion and leaks during weather events.
Expert analysis determined that the roof needed to be replaced and opined that
Anchor’s poor workmanship and Soprema’s defective membrane were the causes of
the roof damage.
Arch, as Linbeck’s CGL insurer, paid $1.6 million to the DCPAF to repair or
replace the roof and for a release of Linbeck. Arch then filed suit against Anchor
and Soprema to recover damages from the alleged construction defects. In
Soprema’s answer, it asserted that Arch was barred from recovery due to the
following subrogation clause in the general conditions of the construction contract:
12.7 DCPAF and Contractor waive all rights against the City, each other and any of their
Subcontractors, Sub-Subcontractors, agents and employees, each of the other, if any, for
damages caused by fire or other causes of loss to the extent covered by property insurance
obtained or required to be obtained by Contractor (excluding deductibles) pursuant to this
Article 12.7, or other property insurance applicable to the Work, except such rights as they
have to proceeds of such insurance held by Contractor as fiduciary. The Contractor, as
appropriate, shall require of the Subcontractors, Sub-Subcontractors, agents and
employees of any of them, by appropriate agreements, written where legally required for
validity, similar waivers of each in favor of other parties enumerated herein. The insurance
policies obtained by Contractor pursuant to this Article 12.7 shall be endorsed to provide a
waiver of subrogation in favor of Contractor, DCPAF, the City, Subcontractors and Sub-
Subcontractors. The City is a third-party beneficiary of this Article 12.7.
Soprema moved for summary judgment on this affirmative defense, and Arch moved
for a partial summary judgment asserting that the waiver of subrogation was not
triggered by payment under a CGL policy.
Soprema argued that the insurance policy, under which Arch paid the
settlement, contained “property insurance applicable to the Work” because it
covered property damage and the roofing system was part of the construction
project—the Work; thus, the subrogation waiver applied. Arch responded that the
claim was paid under liability insurance, not property insurance, so the subrogation
waiver did not apply. Specifically, Arch alleged that the claim was paid pursuant to
the products-completed operations coverage of the CGL policy. Arch argued that
the builder’s risk insurance, which Linbeck was required to maintain under the
contract, was the “property insurance” contemplated by the waiver-of-subrogation
paragraph.
After a hearing, the trial court granted Soprema’s motion. The trial court
denied Arch’s partial motion for summary judgment after a separate hearing and,
although Arch stated it intended to appeal from the tral court’s orders on both
motions in its notice of appeal, Arch’s brief challenges only the trial court’s order
granting Soprema’s motion.
Summary Judgment Standard of Review
We review a summary judgment de novo. 7rial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). A traditional motion for summary judgment requires the moving
party to show that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. TEX. R. Civ. P. 166a(c); Lujan v. Navistar, Inc., 555
S.W.3d 79, 84 (Tex. 2018). If the movant carries this burden, the burden shifts to
the nonmovant to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84.
We take evidence favorable to the nonmovant as true, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Ortiz v. State
Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).
Waiver-of-Subrogation Paragraph Was Triggered
Soprema had the burden to conclusively prove its affirmative defense of
waiver of subrogation. The waiver-of-subrogation paragraph contains two operative
clauses: (1) “property insurance obtained or required to be obtained by [Linbeck]
(excluding deductibles) pursuant to this Article 12.7”; or (2) “other property
insurance applicable to the Work.” Thus, Soprema had to prove that (1) the damage
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was covered by “property insurance” that (2) was obtained or required to be obtained
pursuant to Article 12.7 or was “applicable to the Work.”
We review the construction of a contract, including whether it is ambiguous,
de novo. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). We must
ascertain the true intentions of the parties as expressed in the agreement itself.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333
(Tex. 2011). In doing so, we “examine and consider the entire writing in an effort
to harmonize and give effect to all the provisions of the contract so that none will be
rendered meaningless.” J.-M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.
2003). Generally, “the instrument alone will be deemed to express the intention of
the parties for it is objective, not subjective, intent that controls.” Matagorda Cty.
Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per curiam) (citation
omitted). “We give terms their plain, ordinary, and generally accepted meaning
unless the instrument shows that the parties used them in a technical or different
sense.” Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).
Ambiguity does not exist simply because the parties disagree over a term’s meaning
and present different interpretations of the agreement. Dynegy Midstream Servs.,
Ltd. P’ship v. Apache Corp., 294 S$.W.3d 164, 168 (Tex. 2009); DeWitt Cty. Elec.
Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999).
Property Insurance
Arch contends that Soprema failed to meet its burden because it offered
evidence only that “some” insurance policy paid the claim, not that the claim was
paid by “property insurance” as required by the contract provision. Arch argues that
CGL insurance, a liability policy, is not property insurance. Soprema maintains that
the CGL policy contained property insurance coverage and that Arch’s payment
under the CGL was based on such coverage; it paid for property damage to the roof.
The term “property insurance” is not defined in the contract, nor are any of
the types of insurance coverage that Linbeck was required to maintain in accordance
with the contract titled, “property insurance,” although several required coverage for
property damage or loss, such as the CGL policy, the builder’s risk policy, and the
all-risk property policy. Thus, the contract does not suggest that the parties used the
term “property insurance” in a technical manner or in a different manner than its
plain, ordinary meaning. See Heritage Res.,939 S.W.2d at 121.
The term “property insurance” is defined by Merriam-Webster as “insurance
against direct loss or damage, consequential loss, loss due to liability for damages,
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or loss due to dishonesty or failure of others to perform their duty.” Property
Insurance, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-
webster.com/dictionary/property%o20insurance (last visited Feb. 16, 2022).
Black’s Law Dictionary defines “property insurance” as “[a]n agreement to
indemnify against property damage or destruction . . . [a]lso termed property-
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damage insurance.” Property Insurance, BLACK’S LAW DICTIONARY (11th ed.
2019).
Applying the plain meaning of the word “property insurance,” we conclude
that the CGL policy, or at least the portion under which Arch funded the settlement,
was a form of property insurance in this case. According to the contract, Linbeck
was required to maintain CGL coverage as follows:
12.2.4 Contractor shall maintain commercial general liability (CGL) insurance covering
all operations by or on behalf of the Contractor on an occurrence basis against claims for,
but not limited to:
Premises Operations;
Products and Completed Operations;
Independent Contractors;
Contractual Liability;
Personal Injury (including contractual liability);
Advertising Injury (including contractual liability);
Fire Damage Legal Liability;
Broad Form Property Damage (including completed operations);
Extended Bodily Injury;
Work Performed by Subcontractors;
Severability of Interests;
Incidental Medical Malpractice;
Work for municipalities;
Host Liquor Liability Coverage
The CGL policy specifically included insurance for property damage to completed
operations and, thus, was “property insurance” under the plain meaning of the term.
Arch argues that the insurance industry, Texas Legislature, and the courts
recognize that “property insurance” means a first-party policy covering an owner’s
property and does not include a liability policy that covers the insured’s liability for
damage to a third-party’s property. But our interpretation of “property insurance”
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must first be governed by an examination of the entire writing in which the term
appears. See J.M. Davidson, 128 S.W.3d at 229. The construction contract at issue
here did not require the owner, DCPAF, to purchase first-party insurance covering
its property. In fact, the owner was not required to purchase any insurance under the
construction contract. Instead, the construction contract required Linbeck and its
subcontractors to purchase various insurance policies, including the CGL policy.
This is significantly different from the contracts and waiver provision that have been
previously interpreted by the courts, and relied on by Arch, because the contract and
provision at issue here are not the standard contract and clause provided by the
American Institute of Architects, which requires the owner to purchase property
insurance. See, e.g., Am. Zurich Ins. Co. v. Barker Roofing, L.P., 387 S.W.3d 54,
61-62, 64-65 (Tex. App.—Amarillo 2012, no pet.); Walker Eng’g, Inc. yv.
Bracebridge Corp., 102 S.W.3d 837, 840-44 (Tex. App.—Dallas 2003, pet. denied);
Temple EasTex, Inc. v. Old Orchard Creek Partners, Ltd., 848 S.W.2d 724, 729-31
(Tex. App.—Dallas 1992, writ denied).
Additionally, we find Arch’s argument that “property insurance” meant
“builder’s risk insurance” unpersuasive. Section 12.8 of the general conditions,
the section immediately following the waiver-of-subrogation paragraph,
specifically provides that if an event occurs which is covered by “builder’s risk
insurance” and other conditions are met, the DCPAF and Linbeck agree to enter
into a Change Order to increase the Guaranteed Maximum Price. Thus, if the
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parties meant for “property insurance” to mean only builder’s risk insurance, they
would have used the term “builder’s risk insurance” as they did in section 12.8
instead of the term “property insurance.”
We conclude that the term “property insurance” as used in the contract here
includes the CGL coverage under which Arch funded the settlement agreement with
DCPAF.
Applicable to the Work
We next look to whether the “property insurance” was “obtained or required
to be obtained by [Linbeck] . . . pursuant to this Article 12.7” or was “applicable to
the Work.” We conclude that the CGL coverage was “applicable to the Work.”
Arch argues that the Work means ongoing construction, not completed
construction. We disagree. The construction contract provides that “[t]he Work
shall consist of all labor and materials required for the construction of the Project in
accordance with the Contract Documents, including, without limitation, all of the
items described in Article 1.1.14 of the General Conditions, together with all such
other items as are reasonably inferable from the Contract Documents to complete
the Work.” The “Project” is the PAC. The general conditions required that Linbeck
provide certificates of insurance to the DCPAF to evidence that Linbeck had
acquired the mandatory insurance, such as the CGL policy, before proceeding with
any Work. The CGL policy was thus “applicable to the Work” not only because it
was required before any Work could be performed but also because it covered
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damages associated with the Work, including property damage to Work that had
been completed and Work performed by subcontractors. Regardless of whether the
Work had been completed, the labor and materials necessary to construct the roof as
part of the Project were necessarily part of the Work. And, thus, because Arch paid
for the roof to be repaired or replaced under the CGL policy due to damage to the
roof alleged to be caused by poor workmanship and a defective roof membrane—
labor and materials provided for the construction of the Project—the insurance was
“applicable to the Work.”
Our interpretation that the parties intended to extend the application of the
subrogation waiver beyond the construction period is consistent with the public
policy underlying subrogation waivers in that it continues to preserve economic
relations, anticipates risks, and affords contracting parties certainty as to liability.
See TX. C.C., Inc. v. Wilson/Barnes Gen. Contractors, Inc., 233 S.W.3d 562, 571
(Tex. App.—Dallas 2007, pet. denied).
Soprema conclusively established that Arch’s subrogation claims were
waived under the contract. Because the waiver-of-subrogation paragraph is not
ambiguous, Arch failed to raise a genuine issue of material of fact. See id. at 567(the interpretation of an ambiguous contract is an issue of material fact). Therefore,
the trial court did not err by granting Soprema’s traditional motion for summary
judgment. We overrule Arch’s sole issue on appeal.
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Conclusion
We affirm the trial court’s summary judgment in favor of Soprema.
/Craig Smith/
CRAIG SMITH
JUSTICE
200586F P05
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Court of Appeals
Srttth Aratrict of Cexas at Dallas
JUDGMENT
ARCH INSURANCE COMPANY, On Appeal from the 101st Judicial
AS SUBROGEE AND District Court, Dallas County, Texas
INDEMNIFIER OF LINBECK Trial Court Cause No. DC-17-17759.
GROUP, LLC, Appellant Opinion delivered by Justice Smith.
Justices Pedersen, HI and Goldstein
No. 05-20-00586-CV V. participating.
SOPREMA, INC., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee SOPREMA, INC. recover its costs of this
appeal from appellant ARCH INSURANCE COMPANY, AS SUBROGEE AND
INDEMNIFIER OF LINBECK GROUP, LLC.
Judgment entered February 24, 2022.
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