SAN ANTONIO – A construction company is seeking denial of an appeal certification filed by an insurer in a case over property damage allegations.
Defendant Huser Construction filed the certification Sept. 18 in the San Antonio Division of the Western District of Texas in response to an appeal filed by Mt. Hawley Insurance.
Mt. Hawley is appealing the Aug. 15 court ruling that ordered that it had the duty to defend Huser in a lawsuit in which both entities are parties. The construction company was a subcontractor in a project and Mt. Hawley refused to defend the company in that litigation.
As stated in the response, "in Texas an insurer may ultimately owe a duty to indemnify even where it owes no duty to defend." The response also pointed that Mt. Hawley "argues that Huser 'wants it both ways' because Huser opposes Mt. Hawley’s attempt to appeal an order with which Mt. Hawley has never complied."
Huser also alleged that if the court order is "is an injunction, and Mt. Hawley continues to defy it, Mt. Hawley is not only 'flirting' with contempt. Mt. Hawley is in contempt," the response said.
Mt. Hawley alleged single policy exclusion for not defending Huser in the case. In that light, Huser's attorneys pointed in the response that "the court’s application of a single policy exclusion to a single underlying lawsuit does not present the type of controlling question of law that is appropriate for review under Section 1292(b)," adding that the court "held that Mt. Hawley has a duty to defend."
The insurance company, per the response, argued there was "substantial ground for difference of opinion" that led to a disagreement with the court order. Citing other similar cases, Huser's response stated that "none of these arguments correctly state the holding of this court, and none form the basis for a substantial disagreement."
The response also stated that Mt. Hawley was "correct that an exception to an exclusion does not create coverage that is not initially created by the policy’s grant of coverage," adding that "it excepts certain types of property damage from the scope the exclusion, thereby preserving coverage."
In response, Huser stated in the response that "despite Mt. Hawley’s argument to the contrary, this court did not hold that the subcontractor exception to the 'your work' exclusion creates coverage that would otherwise be excluded by the breach of contract exclusion."
Huser is represented by attorneys Travis Brown, Patrick Wielinski, and Stephanie O'Rourke of Cokinos Young of San Antonio and Irving.
San Antonio Division of the Western District of Texas case number 5:18-cv-00252-OLG