FIFTH CIRCUIT WITHDRAWS JUNE 2012 EWING OPINION, CERTIFIES QUESTIONS TO TEXAS SUPREME COURT

In a June 15, 2012 opinion, Ewing Construction Company, Incorporated v. Legacy of Amerisure Insurance Company --- F.3d ----, 2012 WL 2161134 (5 Cir. June 15, 2012), a divided panel of Fifth Circuit initially affirmed the district court’s judgment holding that Amerisure had no duty to defend and, vacated the district court’s judgment with respect to the duty to indemnify and the Prompt Payment of Claims Act.  Ewing petitioned for rehearing.

On August 8, 2012, in a per curium opinion, the panel withdrew its prior opinion to certify questions to the Texas Supreme Court.  Ewing Const. Co., Inc. v. Amerisure Ins. Co., -- F.3d ---, 2012 WL 3205557, No. 11-40512 (5th. Cir. August 8, 2012).  The Court explained that because the case involved important and determinative questions of Texas law to which there is no controlling Texas Supreme Court precedent, the panel certified the following questions to the Texas Supreme Court: (1) Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, assume liability for damages arising out of the contractor's defective work so as to trigger a contractual liability exclusion in a CGL insurance policy; and (2) if the exclusion is triggered, do the allegations in the underlying lawsuit alleging that the contractor violated its common law duty to perform the contract in a careful, workmanlike, and non-negligent manner fall within the exception to the contractual liability exclusion for "liability that would exist in the absence of contract."

Editor’s note: We will continue to monitor this significant case and will report on any new developments.