Dallas Fifth Court of Appeals Affirms Summary Judgment in Favor of Mayer LLP Client in Construction Dispute

The Dallas Fifth Court of Appeals recently affirmed a summary judgment in favor of a firm client in a subrogation lawsuit where the Plaintiff insurance carrier, as the general contractor’s subrogee, alleged that it was entitled to recover a settlement payment made on behalf of the general contractor related to an owner’s construction defect claim.

The construction contract between the general contractor and the owner required the general contractor to maintain “property insurance applicable to the Work.” After a construction defect claim was made, the insurance carrier funded a settlement under a commercial general liability insurance policy (CGL), which provided coverage for completed operations property damage claims and included a waiver of subrogation clause in favor of the parties to the construction contract and the subcontractors and sub-subcontractors.

After hearings on competing motions for summary judgment filed by both parties, the district court granted our client’s motion for summary judgment on its affirmative defense that the Plaintiff was barred from recovery due to the waiver of subrogation clause. The Plaintiff appealed that summary judgment to the Dallas Fifth Court of Appeals, which affirmed the district court’s judgment in a memorandum opinion, holding that the construction defect damages at issue were covered by “property insurance applicable to the Work” as evidenced by the Plaintiff’s payment under the CGL policy covering property damage.

Our client was represented in the trial court by partners Zach T. Mayer and BJ Jones, and associate Andrew J. Upton. Partner Kevin J. Keith and associate Andrew J. Upton represented our client in the appellate court.

The case is Arch Insurance Co., as Subrogee and Indemnifier of Linbeck Group, LLC v. SOPREMA, Inc., No. 05-20-00586-CV, 2022 WL 557473 (Tex. App.—Dallas Feb. 24, 2022, no pet. h.).