is that it is directly contrary to the texas supreme court's reasoning and more homes in the marlins just like here the texas supreme court was not actually addressing the application of your work  because if as mount holly asserts the breach of contract exclusion applies to property damage arising out of any breach of contract by anyone then you've got an exclusion provision in a injury arise out of the insurance breach of contract even standing alone without considering the and how do we know that we can look to other examples of similarly structure you know back door of melt hollies and there are many script indorsement that the two additional issues that i wanted to talk about six are just contention that again the district ironclad rule that it always applies always and forever but what in fact the rule d is that's set forth in the primrose but this court is that endorsement cannot be read what the court was doing was a reading of the policy that found coverage d when an insured had specifically and purchased an endorsement that provided additional coverage so what this is really is is a it's a construed narrowly it's a group of coverage and so we go back to the general rule that an endorsement cannot be read apart from the intolerance and so we have to look at endorsement and even though this exception to an exclusion only applies to these two other provisions section subsection a and the one we are not going to read this this exclusion in such a way that it a pleasing core i think it's only appropriate to begin by saying that every single argument use or is making to this court was specifically considered by judge lake at the trial court level and was specifically rejected by and that's not surprising when you consider the fact as judge lake himself explained in his opinion that the position th case is inconsistent with numerous pronouncements from this court it's inconsistent with a very basic fundamental insurance policy interpretation print and maybe most importantly it's inconsistent with the actual language of the exclusion itself every position that you served in this case no matter how they try to dress it up requires the court to do one of three things either ignore the actual language of the breach of contract exclusion we write the actual language of the breach of contract exclusion or ed limiting language to the breach of contract exclusion that is simply not there d the language of the breach of contract exclusion in this case is clear in its an unambiguous what one of the refrains from judge lake's opinion at the trial court is that he repeatedly tells use  in response to virtually every argument that they may and i'm reading from judge lake's opinion the language of the breach of contract exclusion is unambiguous users interpretations fail to overcome the plain language of the br there's no doubt about that that was the intent but this policy covers virtually any time out of bodily injury scenario that arises out of that arises on the jobsite i can tell the court from my own experience in representing this particular client for over twenty five years that they've never applied this exclusion in the context of a bodily injury and then to in connection with construction work a bodily injury claim is almost always going to be premised in tort as opposed to a breach of contract and therefore this product this policy provides extremely broad coverage for bodily injury claims now as it relates to to property damage claims there's no question that the intent d this exclusion is does of is to severely limit that but this is judge this is not novel in the sense that a number of courts that have considered this scenario have basically suggested to liability insurance carriers they say look if you don't want to cover defective construction by a sub contractor there are two things you can do you can either eliminate the sub contractor exclusion from the exception from the your work exclusion or you can put a breach of contract exclusion in your policy mount holly chose to do the latter and this this ringback this exclusion has been tested number and number of times do this sub contractor exception provides an exception to the your work exclusion but only in the your work exclusion the very premise upon which users position is balanced is just wrong it is premised on the idea that an exclusionary endorsement like we have here has to somehow square its cells with an exception to a completely different exclusion in the body of the policy not only is that illogical not only is it inconsistent with the fundamental notion that an excluded a that it indorsement trops the language of the policy the endorsement still tells you this changes the language of the policy but judge even more fundamentally than that there is a case from this court that exposes the fallacy of the user's position way better than i ever could and that is the colombian casualty count in columbia casualty you had a circumstance where an insured was arguing look ringback there are these employment related exclusions in the policy that contain a feeling exception and so that the insured article wait a minute that's contained in these employment exclusions regarding feel in the courts that that's just plain wrong that they said and it's an exception to an exclusion of one part of the policy does not have to be squared up with another exclusion those they rise or fall on their own and even more importantly than that your honor the disk or explained in fact it is instructive to note that the insurance carrier if they wanted to feeler exception for their pollution exclusion they clearly knew how to do it because they've done it in two other exclusions in the policy and what the fish circuit said dan is the fact that they didn't include that exception in the pollution exclusion is a very clear indication that there was no intent to have such an exception in that collusion and and to me i guess more than any other case that we've cited in our brief  from this court i think columbia casualty most graphically exposes the fallacy of the very linchpin of a few cers position in this case there if you look at the exclusion itself and just i should point out judge crane nine years ago in scottsdale versus mount holly which is a case dealing with this exact same exclusion in this construction defect on tax she specifically hail just like judge lake did that the exclusion is clear it's an ambiguous and invert and in response to virtually every type of argument that was being put forth in like is being put forth now judge crane's reaction just like judge lake's reaction wait that's not what the exclusions says you are ignoring the language of the exclusion and if you look at the underlying there there's not much that's been mentioned regarding the underlying case and what the construction defects allegations actually were it danced against you sir but d if you look at those pleadings the pleadings themselves are just replete with one breach of contract allegation after another and it's almost impossible for me to see how it can seriously be argued that the underlying litigation does not arise directly or indirectly from a breach of contract that the breach of contract is the very essence of the underlying lawsuit in fact i'm sorry  judge there are plenty of insurance policies available there c t o coverage available in the market from different insurance companies that don't that want to have a breach of contract exclusion in other words this is a freedom of contract issue if the insured wanted coverage that did not have this exclusion it had every available way to obtain that kind of coverage from some other source now clearly the premium associated with that is probably going to be significantly more but that this is a coverage that is available in the marketplace it's just a type of risk that mount holly made a conscious decision roughly twenty years ago that it did not want to  not want to cover in other words it did not want to provide coverage that d essentially forced it to pay to fix bad work done by its own insured and there are a number of carriers that have taken that position there are a number of carriers that are willing to provide that kind of coverage at a higher will judge as i indicated earlier this exclusion would virtually never apply to exclude coverage for any type of workplace accident any bodily injury claim arising from construction and as i indicated we routinely we mount holly routinely defends and provides coverage for those types of claims what this exclusion is primarily designed to do is to avoid providing coverage for the insurers on bad work and as i indicated previously this is this is a sick man who only spotted a suggestion that was made by a number of courts that have been braced this very scenario in the context of a construction defect coverage dispute and again it's not a novel concept and it's one dead has been approved by a number of other d courts now  the one of the another one of the fallacies i guess of houston's position and it kind of permeates through their briefing and in the argument already made this morning is that a houston wants to acquaint an exception to an exclusion as a grant of coverage and it's not we've cited numerous cases in our briefing before this court that explains that an exception to an exclusion is not an affirmative grant of coverage and one of the reasons why that's important is because it helps explain why it's improper for hughes serve throughout its argument in this case to essentially elevate the sub contractor exception to the work to the your work exclusion as if that exception provides an affirmative grant of coverage it does not it's instructive i think to consider the fact that  time talking about the sub contractor exception to the your work exclusion then it does talking about the actual breach of contract exclusion that precludes coverage in this case if you look at hugh se briefing and before this court and if you even look at hugh's users briefing before the trial court they avoid almost entirely ever actually quoting the language from the mount holly breach of contract exclusionary endorsement because the more you look at that language the more you know that there's no coverage for this and that and that their positions fails as what judge lake said it's what judge crane said nine years ago it's what judge orlando garcia said within the last year in a companion chase that that we have against you sir under virtually identical facts judge garcia concluded in that case that mount holly had no duty to defend that mount chelsea reference look at the texas supreme court's opinion in lamar holmes as if to suggest that lamar holmes provide some support for the position that they advance in this case and it simply does not even even the most cursory reading of them are holmes tells you that the importance of that case was that the texas supreme court once and for all put to bed the argument the carriers were making when they would say well wait a minute  bad d defective construction doesn't constitute an occurrence as that term is defined under the ensuring agreement texas supreme court said now that's not going to fly defective concern defective construction can constitute an occurrence and frankly it's a largely rulings like the texas supreme court's ruling in lamar holmes that is prompted a number of courts other course to say now if you want to exclude this kind of conduct you need to do it another way you're not going to be able to rely on the insuring agreement you're going to need to do it through an exclusion and one of the specific exclusions that a number of courts specifically suggest to carriers in this context is a breach of contract exclusion the to the extent that there's any argument about whether or not because they are negligent their negligence claims asserted in the underlying case sort of has taken the position in his briefing that that the breach of contract exclusion here shouldn't apply to a negligence klang but that argument was specifically rejected by both judge lake and budgets crane and for obvious reasons the language of the exclusion is broad enough to ing to encompass a negligence claim as long hands that negligence claim arises directly or indirectly out of a breach of contract and all you have to do is look at the underlying pleadings in this case to see that the negligence allegations and the breach of contract allegations are identical they all arise out of the same conduct what the underlying plain and says that he use or did wrong was it didn't do the work in a good workman like fashion it says that he use or fail to fail to oversee appropriately at sub contractors use or fail to to to make sure that it's sub contractors did its work in a good workman like fashion they that huzoor fail to make sure that the sub contractors did the work consistent with the plans and the specifications there's just there's just no denying mark from our perspective there's just really no serious argument that those caught that suit with those kinds of allegations do not arise directly or indirectly from a breach of contract or breach of warranty now hugh search has spent some time talking about the idea that the the exclusion should should only mean a breach of contract by hugh sort of directly that that was really that's been one of the linchpins of users position both here and before judge garcia in the western dish it's a little just a couple of thoughts about that st of all it's not with the exclusion says exclusion does it say that but even more importantly than that that that whole is going to do the work in a good workman like fashion now it's certainly not unusual that hughes or like most general time tractors decided to sub contract the vast majority of the work out to various us but just   contractors actually do the work that doesn't relieve minas black letter law that that doesn't relieve hugh sir of his own contractual obligation that it undertook with the owner to make sure that the work gets done in the right way and other words whether a sub contractor ultimately does it or not she use or assumed that contractual obligation with the owner any can't avoid contractual liability by but trying to just distance itself and say well i know what i contracted with you to do but they really did that the law is very clear that that doesn't fly number one number two the allegations in the underlying case do not just represent or do not just assert claims against use or subcontractor as they indicated just a nd ago there are direct breaches that are alleged against houston as it relates to not doing the work in a good mark workman like fashion and not making sure that this that it's subs did and not making sure that it's subs did the work in accordance with the plans and specs in other words even if you read the exclusion like user wants to that the breach of contract or we have that here the allegations in the underlying takes clearly set forth multiple breaches of contract that are asserted by the property just to move very quickly to a couple of final points the court judge lake was was correct in ruling that there was no duty to defend hughes or in the underlying case and judge also correctly ruled that there was no duty said it's well settled in texas that there if you have if the same facts that negate the duty to defend also negate the duty to indemnify then you can have a prejudgment ruling as it relates to indemnity and what judge lake what judge lake hailed as did judge garcia under virtually identical facts at both said there's there's really no way that you could end up with any property liability being assessed or that would not arise directly or indirectly from a breach of contract and so for that reason in in accordance with the farmers the farmers decision from the texas supreme court lake's analysis of the trial court level was one hundred percent correct correct it was consistent with pronouncements from this court it was consistent with the earlier pronouncement from judge crane it was consistent with the ultimate conclusions reached by judge garcia and we would close by simply saying and asking the court to affirm judge legs ruling in the trial court level and mount holly say thank you very much for your time and assistance i think you position actually is is that this policy only provide for bodily injury you'll note that there was no discussion of any property damage that would be covered under this now he has never find i think they said if they damage property while delivering a backhoe to that but in this case now holly has never told us what property damage and the initial grant of coverage as we discussed d it in the more homes sorry the pollution exclusion would only say boo to a small subset of the like claims there wasn't the type of argument that's being made here that d it completely renders an entire critical provision of the policy meaningless and  you know if the if the general contractor if the subcontractors defective work causes prop then that is more akin to breach of contract and rising out of property damage in other