Not Up for Interpretation: Court of Appeals Affirms SWP Motion for Summary Judgement in Liberty Case


SWP Attorneys Mark Kressenberg, Richard Sheehy and Shelley Rogers received a favorable ruling from the U.S. Court of Appeals for the 5th Circuit in a case involving breach of contract and violations of the Texas Insurance Code.

In 2017, Plaintiffs Balfour and Beatty Construction and Milestone Metals Inc. filed a claim for damage caused by welding slag that fell down a building causing $690,000 of damage to windows. The damage, resulting from an act of construction, was excluded as stated in their Policy and the claim was denied.

Balfour and Milestone sued Liberty, claiming that though their policy does not cover construction losses, the exception to the exclusion covers a defect resulting in a ‘covered peril’. The plaintiffs claim disregarded the Exclusion in favor of the Exception and ignored the plain wording of the Policy for their own interpretation.

The SWP team, after removing the case to federal court, successfully argued that the Exception does not apply under its plain language and interpretation of Exception negates the Exclusion, resulting in a Texas federal district Court granting motion for summary judgment. Monday August 4, 2020 the US Court of Appeals for the Fifth Circuit affirmed the decision, siding with the district court that Policy is not interpreted in favor of coverage as the Plaintiffs urged, but instead interpreted under its terms.