Following this letter are links to three papers.  Two of them are from The Texas Lawyer and the third was authored in house.  All three deal with pertinent Texas insurance law issues.

The first article, "Proving an Insurance Policy Covers a Claim," addresses two important recent developments regarding the "trigger" for property damage claims.  Formerly, the trigger was the date when the damage manifested itself.  Recent changes in the law, however, now establish that the trigger is when the damage actually occurred. This is an important consideration for an Insured when seeking to invoke the correct policy and when determining the date on which the Statute of Limitations will run.
 
The second article, which is entitled "Questions Persist in Standard CGL Policies," deals with some of the same questions as the first article.  It also includes an analysis of the Texas Supreme Court's decision regarding the application of the "contract exclusion" provision of the CGL,and the application of that exclusion to deny coverage of a claim for defense and indemnity by an insured pursuant to a construction contract.  That contract provided for the assumption of liability - a very common provision in Texas construction contracts.

The third paper discusses whether the waiver of subrogation clause of the Standard AIA 201 (1997) bars subrogation for damages to property that was paid on the General Contractor's Commercial General Liability policy. It appears to us that some Texas and other state courts are holding, mistakenly in our opinion, that payments on behalf of contractors by their CGL policies cannot be "subrogated" in the face of the waiver clause of the A201. This has always been true with regard to Property policies maintained for the project or for property policies maintained by the Owner.  We argue, however, that a substantially different analysis should be considered before applying the property insurance rule to bar subrogation under a comprehensive general liability policy. As it is pertinent to the question, this article also includes an analysis of coverage under a Builders Risk policy.

We hope that these articles are helpful. Please feel free to forward them to anyone who might be interested. Please feel free to call us if you have any questions.

Sincerely,


Peter Martin

 

 

 

 

 

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