First Mercury Insurance Company v. Miller Roofing Enterprises, WDWA Case No. 2:11-cv-00105-JCC, Dkt. No. 51, Order on summary Judgment (February 22, 2013)
This coverage action arises out of a construction defect claim alleging water intrusion due to roofing repairs made on an EIFS clad building. The Roofer’s insurer, First Mercury, defended the roofer in the underlying construction defect suit under a reservation of rights and then filed a declaratory judgment action seeking a determination of no coverage. The insurance policy at issue contains the following EIFS exclusion:
This insurance does not apply to . . . “property damage” included in the “products-completed operations hazard” and arising out of “your work” described as . . . [a]ny work or operation with respect to any exterior component, fixture or feature of any structure if any “exterior insulation and finish system” is used on any part of that structure.
First Mercury moved for summary judgment that the policy did not cover the breach-of-oral-contracts damages Miller Roofing allegedly owes McClincy Brothers and Tim McClincy in the underlying construction defect action. The court did not hesitate in finding that the EIFS exclusion applied to bar coverage:
“The EIFS exclusion bars coverage. Defendants do not contest that the alleged breach-of-oral-contracts damages are for “property damage” arising out of Miller Roofing‟s “work” on the roof. They do not contest that “exterior insulation and finish system‟ is used on any part of th[e] [building].” And they do not contest that the roof is “an exterior component, fixture or feature of . . . that [building].” Under the plain language of the EIFS exclusion, there is no coverage. See, e.g., Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 292 S.W.3d 48, 62–63 (Tex. Ct. App. 2006), reversed in part on other grounds, 279 S.W.3d 650 (Tex. 2009).”
Defendants argued that the EIFS exclusion did not apply because the leak was the result of “defective workmanship to the roof itself,” and “Miller Roofing did not install the EIFS on the building, nor did it undertake to make any repairs to the EIFS itself.” The court stressed that “[e]ven if that is true, it is irrelevant. The exclusion applies not only to property damage arising from EIFS-related work by the insured; it applies to property damage arising from “any” work by the insured on an exterior component, fixture, or feature of a structure, as long as “exterior insulation and finish system‟ is used on any part of that structure.” Those conditions are met here.”