Westminster Falcon/Trinity L.L.P. v. Chong Shin ( 2012 )

NO. 07-11-0038-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 23, 2012
______________________________
AMERICAN ZURICH INSURANCE COMPANY, AS SUBROGEE OF THE VARSITY
GOLF CLUB, LTD D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB, APPELLANT
V.
BARKER ROOFING, L.P, APPELLEE
_________________________________
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-GN-10-001903; HONORABLE SUZANNE COVINGTON, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
This is an appeal from an order granting summary judgment in favor of Appellee,
Barker Roofing, L.P. (Barker) in a subrogation lawsuit filed by Appellant, American
Zurich Insurance Company (AZIC), as Subrogee of the Varsity Golf Club, Ltd d/b/a The
University of Texas Golf Club (UT), seeking to recover damages suffered by its insured,
UT, due to a fire allegedly caused by Barker. The trial court granted summary judgment
based upon the affirmative defense of waiver. By five issues, AZIC asserts the trial
court erred because (1) two clauses in the subcontract between Barker and the prime
contractor, Harvey-Cleary Builders (HCB) modified or were controlling over the
contractual waiver of subrogation provision in the general contract between UT and
HCB, and (2) the contractual waiver provision did not apply to either the business
interruption losses reimbursed by AZIC, or (3) the uninsured business interruption
losses suffered by UT. AZIC also asserts the trial court erred by (4) denying AZIC’s no-
evidence motion for partial summary judgment on Barker’s affirmative defense of waiver
because neither UT nor AZIC waived their subrogation rights, and (5) granting summary
judgment in favor of Barker on AZIC’s breach of contract claims because those claims
were not addressed by Barker’s summary judgment motion. We affirm.
Background
The cause underlying this appeal is AZIC’s subrogation claim for losses resulting
from a fire allegedly caused by Barker’s negligence during the construction of a
clubhouse for the benefit of UT. Barker contends that because those claims are
derivative from UT’s claims, they were waived by a contractual waiver of subrogation
contained in the original construction contract between UT and HCB.
AZIC’s Coverage
UT was insured under a commercial insurance policy issued by AZIC. Under the
policy’s Commercial Property Coverage Part Declarations, AZIC insured UT against,
among other things, real and personal property damage including business income loss.
The policy period ran from December 1, 2007 to December 1, 2008 and coverage was
subject to a $5,000 property deductible applicable to all loss, damage, cost or expense.
2
The Commercial Property Coverage contained a Business Income Coverage Form that
insured UT against an actual loss of business income sustained due to a necessary
suspension of its operations. To be covered, however, the suspension “[was required
to] be caused by direct physical loss of or damage to property at a ‘premises.’” 1
The Business Income Coverage also provided that “[i]f any person or
organization for whom we make payment under this Commercial Property Coverage
Part has rights to recover damages from another, those rights are transferred to us to
the extent of our payment.” It further provided that UT could, “without restricting [its]
coverage waive [its] rights against another party in writing [p]rior to a loss.”
UT/HCB Contract -- Builder’s Risk Insurance
In February 2007, UT and HCB executed a general contract for the construction
of the UT Phase 2 Clubhouse Improvements with a stipulated contract sum of
$5,767,055. Under the contract, the “Work” comprised “the completed construction
required by the Contract Documents, and include[ed] all labor and services necessary
to produce construction of, and all materials and equipment incorporated or to be
incorporated in the construction of, the improvements, set forth in the Contract
Documents.”
Per the Conditions of the Contract, UT was required to “purchase and maintain
property insurance written on a builder’s risk “all-risk” or equivalent policy form in the
amount of the Initial Contract Sum . . . comprising total value for the entire Project at the
1
Under the Commercial Property Coverage Part, “Premises #1” was defined as 2200 University Club
Drive, Austin, Texas, i.e., the address of the UT clubhouse destroyed by fire.
3
site on a replacement cost basis without optional deductibles.” In the event of a
covered loss, Article 11 of the Conditions entitled Insurance and Bonds provided that
UT would be responsible for any deductible that might apply “except for the first
$5,000.00 of the cost of any deductibles, which [would] be paid by [HCB].” The
Conditions further provided that the property insurance must “include [the] interests of
Owner, Contractor, Subcontractors and Sub-subcontractors in the Project” and “include
without limitation, insurance against the perils of fire (with extended coverage) and
physical loss or damage . . . .”
Paragraph 11.2.1.6 of the Conditions contained a waiver of subrogation 2 stating
as follows:
The Owner and Contractor waive all rights against each other and the
Architect . . . and any of their Subcontractors . . . for damages caused by
fire or other perils to the extent covered by property insurance obtained
pursuant to this Article or any other property insurance applicable to the
Work, except such rights as they may have to the proceeds of such
insurance held by the Owner as fiduciary but only to the extent of actual
recovery of insurance proceeds under or pursuant to property insurance
applicable to the Work.
(Emphasis added).
Exhibit B to the contract’s Supplementary Conditions entitled Insurance
Addendum, required HCB and its subcontractors to protect UT’s interests by purchasing
worker’s compensation insurance, commercial general liability insurance, automobile
liability insurance and umbrella excess liability insurance. The Supplementary
Conditions further provided that all insurance policies “in any way related to the Work . . .
that are secured and maintained by [HCB] and all tiers of Subcontractor, shall contain
2
Throughout the remainder of this opinion we will refer to this contractual provision simply as the “waiver
clause.”
4
the waiver contained in Paragraph 11.2.1.6 of the Conditions of the Contract” and
“name [UT] as an additional insured.”
UT subsequently obtained property insurance on a “Builder’s Risk Declaration”
from Fireman’s Fund Insurance with a deductible of $5,000 and policy limits of
$5,800,000. The policy insured against “risks of direct physical loss of damage from
External causes” and expressly excluded losses due to “[d]elay, or any loss of market
for the covered property that occurs from the interruption of business; or any
consequential loss that is beyond the direct physical loss of the covered property.”
Barker’s Subcontract
In March 2007, HCB entered into a subcontract with Barker to complete the roof,
vinyl siding and flashing at UT’s clubhouse for a contract price of $293,467. The
subcontract required Barker to obtain a commercial general liability insurance policy
with a limit of not less than $1,000,000 each occurrence with a $2,000,000 aggregate
and include UT as an insured. The subcontract also provided that UT or HCB would
provide builders risk insurance for the entire Project, insuring against risks of direct
physical loss or damage to materials. In accordance with the UT/HCB contract, Barker
waived his right to subrogation against UT, HCB, “and any party as required in the
General Contract, for damages caused by fire or other causes of loss to the extent
covered by the builders risk insurance.”
The subcontract also contained two indemnification provisions whereby Barker
agreed to “indemnify, defend and save Contractor and Owner harmless from any liability
for all claims, causes of action, losses, costs, expenses, damages, liabilities and
5
judgments” due to any delay in performance or Barker’s failure to properly pursue the
subcontract work or comply with the terms of the subcontract. Barker also agreed to
indemnify UT and HCB against all claims relating to his performance, or lack thereof,
arising from the subcontract work.
Before Barker completed performance under the subcontract, there was a
catastrophic fire at UT’s clubhouse. A fire marshal’s investigation indicated the fire
originated in the exterior roof covering, ignited by a “spark, ember or flame,” with a
contributing factor of high wind. Two of Barker’s employees working on the roof when
the fire occurred later described to the fire marshal how the fire started in roofing
material while they were using a small propane torch to make repairs. UT’s estimated
loss for the building was $8,000,000 plus $930,000 for its contents. Fireman’s Fund
Insurance Company provided insurance coverage of $5,800,000 plus $930,000 for the
contents. AZIC paid business interruption damages to UT totaling $500,000.
Proceedings
In February 2009, AZIC filed a subrogation action against Barker alleging the
roofer was negligent in the performance of its work and services at the UT clubhouse
resulting in a fire that caused UT’s business interruption damages. AZIC’s petition
disclaimed any representation of UT or authorization to accept service, pleadings or
discovery on UT’s behalf. AZIC alleged a claim against Barker for negligence and
sought UT’s business interruption damages plus any deductible paid by UT. Barker
subsequently filed a traditional motion for summary judgment asserting UT contractually
waived AZIC’s subrogation rights per the waiver clause in the UT/HCB contract and
6
sought severance. AZIC subsequently filed a no-evidence summary judgment motion
on Barker’s affirmative defense of waiver.
In May 2010, AZIC filed its Third Amended Original Petition asserting a
contractual indemnity claim under Barker’s subcontract with HCB for UT’s uninsured
losses. Following a hearing, the trial court granted Barker’s motion, denied AZIC’s
motion, and severed the parties from the pending action. This appeal followed.
Discussion
AZIC asserts its subrogation claim is not barred by the UT/HCB contract because
the waiver clause does not mention Barker by name and the indemnification provisions
in Barker’s subcontract negate the waiver clause’s effect. AZIC also contends that UT’s
business interruption damages are not subject to its subrogation waiver because its
damages were not within the scope of the “Work” defined by the UT/HCB contract and
its business interruption coverage with UT was not “property insurance” or insurance
against “property damages.” AZIC next asserts the trial court erred by granting Barker’s
motion for summary judgment because Barker did not appear for the hearing on AZIC’s
motion and failed to amend its motion to seek summary judgment on AZIC’s claim for
contractual indemnity. We disagree.
I. Standard of Review
We review the trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Traditional summary judgment is proper
only if the movant establishes there is no genuine issue of material fact and that the
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movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). See
Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2003). In our
review of a trial court’s grant of summary judgment, we take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Provident Life and
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
A defendant moving for traditional summary judgment must conclusively negate
at least one essential element of each of the plaintiff’s causes of action or conclusively
establish each element of an affirmative defense. Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010); Sci. Spectrum Inc. v. Martinez, 941 S.W.2d 910, 911
(Tex. 1997). 3 The trial court is required to grant the motion unless the nonmovant
produces summary judgment evidence that raises a genuine issue of material fact. Tex.
R. Civ. P. 166a(b). Moreover, if, as here, a trial court’s granting of summary judgment
does not specify the basis for the trial court’s ruling, the summary judgment will be
affirmed if any of the theories advanced by the movant are meritorious. Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
When interpreting a contract, 4 our primary concern is to ascertain and give effect
to the intent of the parties as expressed in the contract. In re Service Corp. Int’l, 355
S.W.3d 655, 661 (Tex. 2011) (citing Seagull Energy E & P, Inc. v. Eland Energy, Inc.,
3
A matter is conclusively established if reasonable people could not differ as to the conclusion to be
drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
4
The interpretation of an insurance contract is generally subject to the same rules of construction as other
contracts. Chrysler Ins. Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex. 2009);
Yorkshire Ins. Co., LTD. v. Diatom Drilling Co., 280 S.W.3d 278, 282 (Tex.App.—Amarillo 2007, pet.
denied).
8
207 S.W.3d 342, 345 (Tex. 2006)). To discern this intent, we examine and consider the
entire writing in an effort to harmonize and give effect to all the contractual provisions so
that none will be rendered meaningless. See Brent v. Field, 275 S.W.3d 611, 617
(Tex.App.—Amarillo 2008, no pet.). No single provision taken alone will be given
controlling effect; rather, all the provisions must be considered with reference to the
whole instrument. Id.
Where the language is plain and unambiguous, we construe the contract as a
matter of law; Coker v. Coker, 659 S.W.2d 391, 393 (Tex. 1983), and enforce the
contract as made by the parties. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 753
(Tex. 2006). We “cannot make a new contract for them, nor change what they had
made under the guise of construction.” Id. However, if the contract’s language is
susceptible to two or more reasonable interpretations, an ambiguity exists. Am. Mfrs.
Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Whether a contract is
ambiguous is a question of law; id., however, a contract is not ambiguous simply
because the parties offer conflicting interpretations. Gilbert Tex. Constr., L.P. v.
Underwriters at Lloyd’s London, 327 S.W.3d 118, 133 (Tex. 2010). If a contract as
written can be given a clear and definite legal meaning, then it is not ambigious as a
matter of law. Id.
II. Subrogation Waiver
Although an insurer acquires a right to be subrogated to any cause of action an
insured may have against the offending party upon payment of the loss, the insurer’s
right to subrogation derives from the insured’s right against the offending party and is
9
limited to those rights. TX. C.C., Inc. v. Wilson/Barnes Gen. Contractors, Inc., 233
S.W.3d 562, 566 (Tex.App.—Dallas 2007, pet. denied) (citing Nat’l Union Fire Ins. Co.
of Pittsburgh, Pa. v. John Zisk Co., 972 S.W.2d 839, 843 (Tex.App.—Corpus Christi
1998, pet. denied)). An insured, however, can affect a subrogated insurer’s rights by
releasing claims the insured has against third parties. Austin Indep. Sch. Dist. v. H. C.
Beck Partners, Ltd., No. 03-07-00228-CV, 2009 Tex. App. LEXIS 1756, at *7
(Tex.App.—Austin 2009, pet. denied) (mem. op.). While this may or may not be a
breach of the insurance contract, id., Paragraph Q of the Commercial Property
Conditions of AZIC’s policy permitted UT to waive its rights against another party
without restricting its coverage if the waiver was executed, as it was here, prior to a
covered loss.
The waiver clause here is well known and often used in the construction industry.
See TX. C.C., Inc., 233 S.W.3d 562, 565 (waiver of subrogation commonly used in
construction industry). In its brief, AZIC acknowledges that the waiver clause is the
standard clause recommended by the American Institute of Architects; see TX. C.C.,
Inc., 233 S.W.3d at 565; Trinity Universal Ins. Co. v. Bill Cox Constr., Inc., 75 S.W.3d 6,
9 (Tex.App.—San Antonio 2003, no pet.); Walker Eng’g, Inc. v. Bracebridge Corp., 102
S.W.3d 837, 838 (Tex.App.—Dallas 2003, pet. denied), that has been in use for at least
twenty years. See, e.g., E.C. Long v. Brennan’s of Atlanta, Inc., 148 Ga. App. 796, 252
S.E.2d 642, 645-46 (Ga. Ct. App. 1979).
The waiver clause provided that UT waived all rights against HCB and Barker for
damages caused by fire or other perils to the extent covered by property insurance
obtained pursuant to the UT/HCB contract “or any other property insurance applicable
10
to the Work.” The UT/HCB contract provided that UT would purchase property
insurance upon the entire Work at the site to the full insurable value thereof and would
include the interests of UT, HCB, and Barker in the Project and insure against the perils
of fire. “A review of the Contract [the construction contract between the Owner and the
General Contractor containing the waiver of subrogation clause] and applicable case
law interpreting similar AIA contract provisions reveals the parties agreed [the Owner’s]
property coverage would protect all parties from property loss.” Walker Eng’g, Inc., 102
S.W.3d at 840. Courts reviewing this allocation of risks and the waiver of subrogation
provision have concluded the purpose of these provisions is to eliminate the need for
lawsuits by protecting all contracting parties from property loss by way of the owner’s
property insurance. Id. at 841.
Where a waiver clause identical to the UT/HCB contract was upheld under
similar circumstances, the court stated as follows:
A waiver of subrogation clause is a risk-shifting provision premised upon
the recognition that it is economically inefficient for parties to a contract to
insure against the same risk. [Citation omitted]. A subrogation waiver
encourages the parties to anticipate the risks and to procure insurance
covering those risks and also facilitates and preserves economic relations
and activity. [Citation omitted]. Because a property owner can generally
acquire insurance to protect property against fire and other perils, in the
context of a construction contract, the waiver of subrogation clause shifts
the ultimate risk of loss resulting from such perils to the owner to the
extent damages are covered by insurance. [Citation omitted]. The intent
is to avoid disruption during construction and provide certainty and
eliminate litigation by having the contracting parties look only to the
owner’s insurance for protection in the event of loss resulting from fire or
other perils. [Citation omitted]. In other words, a waiver of subrogation
clause substitutes the protection of insurance for the uncertain and
expensive protection of liability litigation. [Citation omitted].
11
TX. C.C., Inc., 233 S.W.3d at 567-68. See Walker Eng’g, 102 S.W.3d at 842; Trinity
Universal Ins. Co., 75 S.W.3d at 13; Temple Eastex, Inc. v. Old Orchard Creek
Partners, 848 S.W.2d 724, 731 (Tex.App.—Dallas 1992, writ denied).
Further, the waiver clause applies whether the owner purchased the property
insurance used to pay the loss before executing the construction contract or afterwards.
See TX. C.C., Inc., 233 S.W.3d at 571. As long as the owner’s property insurance
covers the damages to the structure, whether completed or not, the waiver applies. Id.
This is consistent with the plain meaning of “other property insurance applicable to the
Work,” i.e., property insurance other than that required to be purchased by the owner
under the construction contract. Id.
Given the plain meaning of the phrase “other property insurance applicable to the
Work,” as well as the lengthy period of time this standard AIA clause has been in use,
and its ultimate purpose; see Frost Nat’l Bank, 165 S.W.3d at 312 (contracts are
construed “from a utilitarian standpoint, bearing in mind the particular business activity,”
while avoiding unreasonable constructions), we conclude the parties intended claims
against HCB and its subcontractors (and resultantly any subrogation claims) be waived
if UT had already purchased, or later obtained property insurance, that otherwise
covered any damage to UT’s clubhouse resulting from fire and/or other perils. See
Trinity Universal Ins. Co., 75 S.W.3d at 13 (scope of a waiver provision in a standard
AIA contract is determined by whether the owner’s policy provided coverage for the
losses arising from the damage to the property). Because AZIC’s policy covered
damages resulting from the destruction of UT’s property, we conclude that UT waived
all rights against Barker for damages caused by the fire, and, because AZIC’s rights
12
were limited by UT’s rights, the trial court properly held that AZIC’s subrogation claim
was barred as a matter of law. See TX. C.C., Inc., 233 S.W.3d at 571 (“as long as
property insurance cover[s] the damages to the structure, . . . the waiver applies”). See
also Trinity Universal Ins. Co., 75 S.W.3d at 13.
A. Third Party Beneficiary
AZIC correctly points out that, generally, only parties to a contract have the right
to complain of its breach; Carson Energy v. Riverway Bank, 100 S.W.3d 591, 600
(Tex.App.—Texarkana 2003, pet. denied), and a presumption exists against conferring
third-party beneficiary status on non-contracting parties. S. Tex. Water Auth. v. Lomas,
223 S.W.3d 304, 306 (Tex. 2007). An exception exists, however, when one who is not
a party to the contract shows that the contract was actually made for his or her benefit
and that the contracting parties intended that he or she benefit by it. Id.
Here, the inclusion of the word “sub-contractor” in the waiver clause indicates
that “a considerable depth of parties was contemplated and that the waiver was not
meant to be limited only to those who contracted directly with the owner and prime
contractor.” Temple Eastex, Inc., 848 S.W.2d at 730 (citing Crow-Williams, I v. Federal
Pac. Elec. Co., 683 S.W.2d 523, 524 (Tex.App.—Dallas 1984, no writ)). The language,
“[t]he Owner and Contractor waive all rights against each other and the Architect,
Architect’s consultants, separate contractors, and any of their Subcontractors, sub-
Subcontractors, agents and employees, for damages caused by fire or other perils to
the extent covered by property insurance obtained pursuant to this Article or any other
property insurance applicable to the Work,” in the waiver clause reveals UT’s and
13
HCB’s intent that the waiver provision extend to subcontractors. Id. Therefore, Barker,
as HCB’s subcontractor, is entitled to benefit from the waiver provision as a third-party
beneficiary and may rely on, and enforce, the waiver provision.
B. Indemnification
AZIC contends the indemnification clause in Barker’s subcontract required
Barker to indemnify UT for losses it sustained due to the fire despite the waiver clause.
Under the general indemnity clause in Section 7(a) of the subcontract, Barker agreed to
indemnify UT against all claims, causes of action, and damages arising out of
performance of the subcontract. 5
Because Barker’s subcontract defines the “Contract Documents” to include not
only the subcontract but also the UT/HCB contract, we cannot look at the contested
clauses in a vacuum but must read them in the context of the entire contracts. In re
Service Corp. Int’l, 355 S.W.3d at 661; Brent, 275 S.W.3d at 617. See Tribble &
Stephens Co. v. RGM Constructors, L.P., 154 S.W.3d 639, 663 (Tex.App.—Houston
[14th Dist.] 2004, pet. denied) (“When a document is incorporated into another by
reference, both instruments must be read and construed together.”) Further, in
construing their provisions, we must avoid an interpretation that renders any of the
contract provisions meaningless. In re Service Corp. Int’l, 355 S.W.3d at 661.
5
The indemnification clause in Section 6 of the subcontract is not a general liability indemnification clause
but expressly pertains to claims or losses incurred due to delay in Barker’s performance of the
subcontract work as directed by HCB or in accordance with the subcontract’s terms due to inadequate
staffing; delay in preparation, procurement or purchasing; correction of defective work; sub-subcontractor
delay, labor issues, and insolvency. As such, we find Section 6 does not modify the waiver clause
pertaining to property insurance.
14
The waiver clause is contained in Article 11 of the UT/HCB contract entitled
“Insurance and Bonds” and it details the insurance UT, as owner, is obligated to supply.
The property insurance provision requires UT to purchase and maintain a builder’s all-
risk policy in the full amount of the contract sum. UT’s property insurance is also
required to include its interests as well as the interests of HCB and Barker. The waiver
clause expressly applies to damages caused by fire “to the extent covered by [the
builder’s risk policy required by the] Article or any other property insurance applicable to
the Work.” (Emphasis added).
Section 7(a) of the subcontract entitled “Indemnification,” on the other hand, does
not reference the waiver clause or mention any specific type of damages or insurance to
which it might apply. Section 8 of the subcontract entitled “Insurance,” however, lists all
the types of insurance policies for which Barker is responsible for purchasing, i.e.,
compensation and third-party liability policies such as general liability insurance,
business auto liability insurance, and workers’ compensation insurance. The sole
reference to property insurance in Section 8 addresses UT’s responsibility under the
UT/HCB contract to purchase builder’s risk insurance and also contains a waiver of
subrogation that is similar to, and required by, the UT/HCB contract. 6
A reasonable interpretation of the subcontract’s indemnification clause(s) that is
in harmony with UT’s property insurance procurement requirement and waiver clause is
that the subcontract’s general indemnification clause refers to compensation and liability
losses not covered by property insurance. This interpretation is consistent with the
6
Barker’s waiver in Section 8(g) of the subcontract states: “Subcontractor waives its right of subrogation
against Owner, Contractor, . . . and any other party as required by the General Contract, for damages
caused by fire or other causes of loss to the extent covered by the builders risk insurance.”
15
parties’ intent, as manifested by the property insurance requirement and waiver clause,
i.e., to shift the risk of each other’s loss to the insurer to the extent the loss is covered
by the owner’s property insurance. To the extent the loss is for compensation and
liability to third parties, the indemnification clause shifts the loss from UT, as owner of
the property, to Barker. Moreover, in light of Texas’s history of enforcement of the
waiver clause; TX C.C., Inc., 233 S.W.3d at 571; Walker Eng’g, Inc., 102 S.W.3d at
843-44; Trinity Universal Ins. Co., 75 S.W.3d at 841-43; Temple Eastex, Inc., 848
S.W.2d at 730-31, which has been used extensively in the construction industry
nationwide for many years, a reasonable person would assume that if the parties
wished to nullify it, they would have amended the text of the waiver itself, not included it
at all, or included a statement of nullification that referred to it specifically in either or
both contracts.
Accordingly, we hold that the indemnification clause(s) in Barker’s subcontract do
not modify, or conflict with, the waiver clause. As a result, AZIC’s subrogation claims
against Barker are barred as a matter of law by Barker’s affirmative defense of waiver of
subrogation. The trial court did not err by granting Barker’s traditional motion for
summary judgment on AZIC’s subrogation claim. AZIC’s first issue is overruled.
III. Business Interruption Losses
By its second issue, AZIC asserts that UT’s business interruption damages were
not subject to the waiver clause because the damages were not within the scope of the
“Work” and its policy does not constitute “property insurance.” As a corollary, by its
16
fourth issue, AZIC asserts that neither it nor UT waived their subrogation rights as
applied to this case. We disagree.
The waiver clause waived “all rights . . . for damages caused by fire or other
perils to the extent covered by property insurance . . . applicable to the Work.” Texas
courts recognize that a majority of jurisdictions interpreting this waiver clause have held
that waived claims are not defined by what property is harmed, but by the source of any
insurance proceeds paying for the loss. TX. C.C., Inc., 233 S.W.3d at 571. 7 “As long
as [the owner’s] property insurance cover[s] the damages to the structure, . . . the
waiver applies.” Id. See Walker Eng’g, 102 S.W.3d at 844 (rejecting an insurer’s
contention that the property insurance policy was not applicable to “the Work”, the court
held that “to the extent the property damage at issue was covered by [the plaintiff’s]
insurance, [the plaintiff] waived its right to sue [the contractor”); Trinity Universal Ins.
Co., 75 S.W.3d at 13, 15 (court held the scope of the waiver clause in the standard AIA
contract was determined by whether the owner’s policy provided coverage for losses
arising from damage to the property, not whether the injury was to “Work” or “non-
Work.”) Neither party disputes the fact that UT’s business interruption damages were
caused by the fire and AZIC’s policy covered those damages. Thus, we find AZIC’s
7
Under the majority approach, no distinction is drawn between “Work” and “non-Work,” but instead, the
scope of the waiver is limited to the proceeds of the insurance provided under the contract between the
owner and contractor whether the property owner chooses to rely on existing insurance in place at the
time of construction or purchase insurance after entering into a construction contract. See TX. C.C., Inc.,
233 S.W.3d at 564 (owner acquired policy after entering into construction contract); Trinity Universal Ins.
Co., 75 S.W.3d at 8 (owner acquired policy before entering into construction contract). Moreover, that,
here, there were two property insurance policies—AZIC’s policy, entered into prior to the UT/HCB
contract, and Fireman Fund’s policy entered into after the construction contract was consummated—is of
no moment. See Walker Eng’g, 102 S.W.3d at 838-844. In Walker, although the owner had purchased a
separate builder’s risk policy insuring the “Work” in accordance with the contract in addition to existing
property insurance, the scope of the waiver of subrogation was not limited to the builder’s risk policy
purchased pursuant to the contract. Id. at 844. By agreeing to the waiver of subrogation clause, the
parties agreed that they would all be “protected from property loss under the owner’s insurance,”
regardless whether it was the policy required by the contract or other property insurance. Id.
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policy was “applicable” to the Project at the address it insured, 2200 University Club
Drive, Austin, Texas.
We also find that UT’s business interruption losses were a component of the loss
suffered by UT due to the fire and AZIC’s business interruption coverage was a part of
UT’s “property insurance” coverage on the clubhouse. The interruption of an owner’s
business is a proper element of property damages. See Goose Creek Consol. Indep.
Sch. Dist. v. Jarrar’s Plumbing, Inc., 74 S.W.3d 486, 496-97 (Tex.App.—Texarkana
2002, pet. denied) (“[E]ven if a plaintiff is not physically deprived of the property, if the
injury causes the property to be unfit for the purpose for which the plaintiff had used or
had intended to use it, loss of use may be an available remedy.”) See also Berry
Contracting, Inc. v. Coastal States Petrochemical Co., 635 S.W.2d 759, 761
(Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). Further, AZIC’s Business Income
Coverage Form is listed under the “PROPERTY PORTFOLIO PROTECTION FORMS
AND ENDORSEMENTS” of AZIC’s policy and Commercial Property Coverage Part
Declarations for Premises #1, i.e., UT’s clubhouse. The Business Income Coverage
Form also insured UT’s loss from business interruption only if the loss was “caused by
direct physical loss or damages to property at a ‘premises.’” (Emphasis added). Thus,
although AZIC’s policy contained both general liability coverage and property coverage,
we find that AZIC’s business income coverage represented property insurance for
losses caused by fire damage to UT’s clubhouse.
Our finding is compatible with the notion that property insurance policies are
“intended solely to indemnify the insured for his actual monetary loss by the occurrence
of the disaster”; Highlands Ins. Co. v. The City of Galveston, 721 S.W.2d 469, 471
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(Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (quoting 4 J. Appleman,
Insurance Law & Practice § 2107 (rev. 1969)), while liability policies “insure against loss
arising out of legal liability, usually based upon the assured’s negligence.” Id.
(Emphasis added). Furthermore, “[p]roperty loss coverage is typically under a first-party
insurance policy [as here] while tort liability coverage is under a third-party policy.”
Warrilow v. Norrell, No. 13-88-437-CV, 1990 Tex. App. LEXIS 863, at *2-5 (Tex.App.—
Corpus Christi 2009, writ denied).
In discussing the differences between property and liability insurance, the
Warrilow court stated the following:
Coverage in a property policy is commonly provided by reference to
causation, such as ‘loss caused by . . .” certain enumerated forces.
[Citation omitted]. It is precisely these physical forces that bring about the
loss. [Citation omitted]. Frequently, as in the cases cited to us by
Warrilow, property losses occur from more than one legally significant
physical force: poultry house destroyed by wind and snow in McKillip;
home rendered uninhabitable by contamination and an exterminator’s
negligence in Auten; and building damaged by rain and wind in
Matchoolian. In Texas, if one force is covered and one force is excluded,
the insured must show that the property damage was caused solely by the
insured force, or he must separate the damage caused by the insured
peril from that caused by the excluded peril. [Citation omitted]. The
coverage analysis in the property insurance context examines the
relationship between perils, those that are covered under the policy and
those that are excluded, focusing on the exclusions that limit loss
coverage. [Citation omitted].
Id. at *3. (Emphasis supplied).
Given the plain meaning of the phrase “other property insurance applicable to the
Work,” we conclude the parties intended subrogation claims to be waived if UT
obtained, or had existing, property insurance that covered any damages to the
clubhouse resulting from fire and/or other perils. Because AZIC’s policy covered
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damages resulting from the destruction of the clubhouse by fire, we conclude UT
waived all rights against Barker for damages caused by the fire and, because AZIC’s
rights were limited to UT’s rights, AZIC’s subrogation claim is barred as a matter of law.
See TX. C.C., Inc., 233 S.W.3d at 571. Issue two is overruled and issue four is
pretermitted. See Tex. R. App. P. 47.1.
IV. UT’s Uninsured Losses
By its third issue, AZIC next contends that, even if the waiver clause applies to
the $500,000 in damages reimbursed by AZIC, the waiver clause does not waive AZIC’s
claim for UT’s uninsured losses or deductible.
AZIC’s policy requires that, “[i]f any person or organization to or for whom we
make payment under this Commercial Property Coverage Part has rights to recover
damages from another, those rights are transferred to us to the extent of our payment.”
As a general rule, “’subrogation gives indemnity and no more.’” American Centennial
Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 485 (Tex. 1992) (Hecht, J., concurring)
(quoting Phipps v. Fuqua, 32 S.W.2d 660, 663 (Tex.Civ.App.—Amarillo 1930, writ
ref’d)). See Interfirst Bank Dallas v. United States Fidelity & Guar. Co., 774 S.W.2d
391, 399 (Tex.App.—Dallas 1989, writ denied) (subrogee limited to recovery of amount
paid); McAllen State Bank v. Linbeck Constr. Corp., 695 S.W.2d 10, 24 n.5 (Tex.App.—
Corpus Christi 1985, writ ref’d n.r.e.) (under both law and the parties’ agreement,
subrogee subrogated only to the extent of its payment).
Thus, AZIC’s subrogation rights are limited to the amount of UT’s losses paid by
AZIC up to the policy limits. That AZIC’s policy makes provisions for a distribution to UT
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if there is a recovery as a result of subrogation proceedings arising out of a covered loss
does not confer on AZIC the ability to expand its subrogation rights. See McAllen State
Bank, 695 S.W.2d at 24 n.5. There is no evidence of record that UT was a party to the
action below, assigned any cause of action, or paid any deductible to AZIC. To the
contrary, AZIC’s Third Amended Original Petition expressly states that AZIC “does not
represent [UT] and is not authorized to accept service, pleadings or discovery on its
behalf.” AZIC’s third issue is overruled.
IV. Breach of Contract
Finally, by its fifth issue, AZIC asserts the trial court erred by disposing of its
claims for breach of contract. Prior to the court’s order granting summary judgment in
Barker’s favor, AZIC amended its complaint to assert claims for breach of contract, i.e.,
Barker breached its subcontract with HCB by failing to indemnify UT, and Barker did not
amend its summary judgment motion to include those “newly” asserted claims. This
failure to amend, however, is not fatal to Barker’s position that the trial court had the
authority to grant summary judgment as to those claims. “In a nod to reality, summary
judgment may be properly granted on later-pleaded causes of action if the grounds
actually asserted show that the plaintiff could not recover on the later-pleaded cause of
action.” See Owens v. McLeroy, Litzler, Rutherford, Bauer & Friday, P.C., 235 S.W.3d
388, 391 (Tex.App.—Texarkana 2007, no pet.) (citing Ortiz v. Collins, 203 S.W.3d 152,
162 (Tex.App.—Houston [14th Dist.] 2006, no pet.)). “Even when a later-filed claim is
involved, if the motion for summary judgment is sufficiently broad to encompass that
claim, then the movant need not amend his motion.” Zarzana v. Ashley, 218 S.W.3d
152, 161 (Tex.App.—Houston [14th Dist.] 2007, no pet.). Based on the arguments set
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forth hereinabove, Barker’s affirmative defense of waiver clearly applies to all AZIC’s
theories of recovery, including its breach of contract claim asserting UT’s rights, if any,
to indemnity under the subcontract. AZIC’s fifth issue is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
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