IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10166

DOUG CROWNOVER and KAREN CROWNOVER,

Plaintiffs - Appellants

v.

MID-CONTINENT CASUALTY COMPANY,

Defendant - Appellee

Appeals from the United States District Court

for the Northern District of Texas

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

The question in this diversity case is whether an insurance company, MidContinent Casualty Co. (“Mid-Continent”), is obligated under Texas law to pay

for damage caused by one of its insureds, Arrow Development, Inc. (“Arrow”),

when Arrow failed to promptly correct work in the home that it had constructed

for Doug and Karen Crownover and which failed to conform to the requirements

of the construction contract into which Arrow and the Crownovers had entered. 

An arbitrator had earlier found Arrow liable to the Crownovers for breaching

this express warranty to repair and awarded them damages. Because Arrow

filed for bankruptcy, however, the Crownovers are limited to recovering what

they can from Arrow’s insurance policies. They therefore sued Mid-Continent

United States Court of Appeals

Fifth Circuit

F I L E D

June 27, 2014

Lyle W. Cayce

Clerk

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in federal court for the damages owed to them by Arrow, and both parties moved

for summary judgment. The district court granted summary judgment for MidContinent. 

We conclude that, consistent with Texas law and considering the Texas

Supreme Court’s decisions in Gilbert Texas Construction, L.P. v. Underwriters

at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010), and Ewing Construction Co. v.

Amerisure Insurance Co., 420 S.W.3d 30 (Tex. 2014), Mid-Continent has

demonstrated that an exclusion from coverage applies and that the Crownovers

have failed to show that an exception to that exclusion applies. We also conclude

that the district court committed no error in granting summary judgment to

Mid-Continent. Accordingly, we AFFIRM.

BACKGROUND

I.

In October 2001, the Crownovers entered into a construction contract with

Arrow to construct a home on their land in Sunnyvale, Texas. The contract

contained a warranty-to-repair clause, which in paragraph 23.1 provided that

Arrow would “promptly correct work . . . failing to conform to the requirements

of the Contract Documents.” The work was completed in November 2002, but

by early 2003, cracks began to appear in the walls and foundation of the

Crownovers’ home. Additional problems with the heating, ventilation, and air

conditioning (“HVAC”) system caused leaking in exterior lines and air ducts

inside the Crownovers’ home. To compensate for defects in the HVAC system,

the system’s mechanical units ran continuously in order to heat or cool the

house. In all, the Crownovers paid several hundred thousand dollars to fix the

problems with the foundation and HVAC system. 

II.

The Crownovers attempted to have Arrow correct the problems and

eventually sought legal relief. Their demand letters were forwarded to MidContinent, but to no avail. The Crownovers then initiated an arbitration

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proceeding against Arrow. The arbitrator determined that the Crownovers had

a meritorious claim for breach of the express warranty to repair contained in

paragraph 23.1 of their contract with Arrow, which was not barred by the

statute of limitations. Because the arbitrator awarded damages to the

Crownovers on that ground, she declined to decide whether the Crownovers’

other claims were barred by a statute of limitations.

Arrow later filed for bankruptcy. In June 2009, the bankruptcy court

lifted the automatic stay but limited the Crownovers’ recovery to any amount

they could recover from an applicable insurance policy. (To date, Arrow has not

paid the Crownovers any money.) In July 2009, the Crownovers sent a letter to

Mid-Continent, demanding that the insurance company pay the arbitration

award. Mid-Continent denied their demand in August 2009, citing several

insurance policy defenses and exclusions.

The Crownovers then sued Mid-Continent for breach of contract. Both

parties moved for summary judgment. Ultimately, the district court granted

Mid-Continent’s motion and denied the Crownovers’ motion. In its opinion, the

district court examined an “Insuring Agreement,” a provision that appeared (in

exactly the same form) in a series of comprehensive general liability (“CGL”)

policies, by which Mid-Continent insured Arrow, from August 2001 through

2008. The district court concluded that the Insuring Agreement covered Arrow

while it constructed the Crownovers’ home. The Insuring Agreement states that

Mid-Continent “will pay those sums that [Arrow] becomes legally obligated to

pay as damages because of . . . ‘property damage’ to which this insurance

applies.”

Several exclusions apply to this general coverage provision, however. The

district court concluded that one of them, the contractual-liability exclusion,

applied in the instant case, such that Mid-Continent was not obligated to

indemnify Arrow for the damages it owed the Crownovers. This exclusion states

that “[t]his insurance does not apply to[] ‘property damage’ for which the insured

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is obligated to pay damages by reason of the assumption of liability in a contract

or agreement.” There is, however, an exception to this exclusion, for “liability

. . . [t]hat the insured would have in the absence of the contract or agreement.” 

The district court noted that the arbitration award to the Crownovers was based

only on Arrow’s breach of the express warranty to repair contained in paragraph

23.1; the arbitrator explicitly declined to decide whether Arrow was liable to the

Crownovers on any other ground. Thus, the district court held that because

Arrow “became legally obligated to pay the arbitration damages on the basis of

[its] contractually assumed liability,” the contractual-liability exclusion applied

with no applicable exception to the exclusion. 

The Crownovers had argued that the district court should consider

whether Arrow would have been liable in the absence of the express warranty

to repair. Specifically, they had contended that the “implied warranty of good

workmanship” continued to apply to the contract they had with Arrow because

the contract contained no express disclaimer of such a warranty. The district

court declined to adopt this argument, however. First, it noted that under

Gilbert, it was confined to the actual facts of the case and could not consider

hypothetical scenarios. Second, the district court reasoned that when a contract

contains an express warranty of good workmanship, that warranty supersedes

any implied warranty of the same. 

The Crownovers subsequently filed motions for a new trial, to amend or

modify the judgment, and for relief from the judgment, arguing that the district

court had erred in ruling on implied warranties, a ground that had not been

raised in Mid-Continent’s motion for summary judgment. They further argued

that no such waiver or disclaimer exists under Texas law. The district court

denied their motions, finding that the Crownovers had raised the implied

warranty issue in their briefing and that Mid-Continent was thus allowed to

respond to their argument in its sur-reply. The district court also adhered to its

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earlier reasoning that the express warranty of good workmanship superseded

any implied warranty of the same. The Crownovers timely appealed.

STANDARD OF REVIEW

“[We] appl[y] a de novo standard of review when determining whether a

district court erred in granting summary judgment.” LaBarge Pipe & Steel Co.

v. First Bank, 550 F.3d 442, 449 (5th Cir. 2008). Summary judgment should be

granted “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). “A genuine issue of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Gates v. Tex.

Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008). 

“[S]ubstantive law will identify which facts are material.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “When, as here, jurisdiction is based on

diversity, we apply the substantive law of the forum state.” Holt v. State Farm

Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Thus, in this case, Texas law

determines which facts are material.

DISCUSSION

In light of the Texas Supreme Court’s controlling analysis in Gilbert, and

further explication in Ewing, we conclude that Mid-Continent has demonstrated

that an exclusion to coverage applies and that the Crownovers have failed to

show that an exception to that exclusion applies. We also conclude that the

district court committed no error in granting summary judgment for MidContinent.

I.

Under Texas law, “the insured has the [initial] burden of establishing

coverage under the terms of the policy.” Gilbert, 327 S.W.3d at 124 (citing Ulico

Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 782 (Tex. 2008)). “If the insured

proves coverage, then to avoid liability the insurer must prove the loss is within

an exclusion.” Id. (citing Ulico Cas. Co., 262 S.W.3d at 782). “If the insurer

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proves that an exclusion applies, the burden shifts back to the insured to show

that an exception to the exclusion brings the claim back within coverage.” Id.

(citing Comsys Info. Tech. Servs., Inc. v. Twin City Fire Ins. Co., 130 S.W.3d 181,

193 (Tex. Ct. App. 2003)). 

“The principles [Texas] courts use when interpreting an insurance policy

are well established.” Id. at 126.

Those principles include construing the policy according to general

rules of contract construction to ascertain the parties’ intent. First,

we look at the language of the policy because we presume parties

intend what the words of their contract say. We examine the entire

agreement and seek to harmonize and give effect to all provisions so

that none will be meaningless. The policy’s terms are given their

ordinary and generally-accepted meaning unless the policy shows

the words were meant in a technical or different sense. Courts

strive to honor the parties’ agreement and not remake their contract

by reading additional provisions into it.

Id. (citations omitted).

II.

A.

In Gilbert, the Texas Supreme Court addressed a contractual-liability

exclusion and an exception to that exclusion identical to those here. The insured

party was Gilbert Texas Construction (“Gilbert”), which contracted with the

Dallas Area Rapid Transit Authority (“DART”) to build a light rail system. Id.

at 121-22. As part of the contract, Gilbert agreed to “protect the work site and

surrounding property.” Id. at 122. “During construction, Dallas suffered an

unusually heavy rain, and a building adjacent to the construction area flooded.” 

Id. The building owner (“RTR”) sued Gilbert and DART for, inter alia, breach

of contract. Id. Gilbert eventually settled with RTR, but Gilbert’s insurer,

Lloyd’s of London (“Lloyd’s”), refused to indemnify Gilbert on the ground that the

contractual-liability exclusion applied. See id. Gilbert sued Lloyd’s, and the case

eventually reached the Texas Supreme Court. Id.

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The Texas Supreme Court first explained that the contractual-liability

exclusion “means what it says: it excludes claims when the insured assumes

liability for damages in a contract or agreement, except . . . when the insured

would be liable absent the contract or agreement.” Id. at 128; see also Ewing,

402 S.W.3d at 37 (“[W]e . . . determined in Gilbert that ‘assumption of liability’

means that the insured has assumed a liability for damages that exceed the

liability it would have under general law.” (citing 327 S.W.3d at 127)). The court

concluded that Gilbert had “assumed” liability by taking on liability in its

contract that it would not otherwise have had under the law:

Independent of its contractual obligations, Gilbert owed RTR the

duty to comply with law and to conduct its operations with ordinary

care so as not to damage RTR’s property[] . . . . In its contract with

DART, however, Gilbert undertook a legal obligation to protect

improvements and utilities on property adjacent to the construction

site, and to repair or pay for damage to any such property “resulting

from a failure to comply with the requirements of this contract or

failure to exercise reasonable care in performing the work.”

(emphasis added). The latter obligation—to exercise reasonable

care in performing its work—mirrors Gilbert’s duty to RTR under

general law principles. The obligation to repair or pay for damage

to RTR’s property “resulting from a failure to comply with the

requirements of this contract” extends beyond Gilbert’s obligations

under general law and incorporates contractual standards to which

Gilbert obligated itself.

Gilbert, 327 S.W.3d at 127. The trial court had granted summary judgment in

favor of Gilbert on all of RTR’s theories of liability apart from breach of

contract—in other words, all that remained was RTR’s claim that Gilbert had

breached the contract by causing damage “resulting from . . . failure to comply

with the requirements of th[e] contract.” See id. Therefore, when Gilbert settled

with RTR, its “only potential liability remaining in the lawsuit was liability in

excess of what it had under general law principles.” Id. Thus, the court

concluded that RTR’s breach-of-contract claim “was founded on an obligation or

liability contractually assumed by Gilbert within the meaning of the policy

exclusion.” Id.; see also Ewing, 420 S.W.3d at 36 (“In other words, Gilbert did

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not contractually assume liability for damages within the meaning of the policy

exclusion unless the liability for damages it contractually assumed was greater

than the liability it would have had under general law—in Gilbert’s case,

negligence.”).

The Gilbert court then considered whether the exception to the exclusion

brought Gilbert’s liability to RTR back into coverage. See 327 S.W.3d at 133-35. 

The court concluded that no exception applied to the exclusion—in other words,

that Gilbert had not shown that it would have been liable to RTR “in the absence

of the contract or agreement”—because Gilbert’s only liability for damages was

for breach of contract. Id. at 133-35. Because the exclusion applied and the

exception did not, the Gilbert court concluded that there was no coverage. Id. at

135.

B.

Following oral argument in this case, a panel of this court certified two

questions to the Texas Supreme Court that are germane to the Crownovers’

dispute with Mid-Continent. See Ewing Constr. Co. v. Amerisure Ins. Co., 690

F.3d 628, 633 (5th Cir. 2012). Those questions were:

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, without more specific provisions enlarging

this obligation, “assume liability” for damages arising out of the

contractor’s defective work so as to trigger the Contractual Liability

Exclusion.

2. If the answer to question one is “Yes” and the contractual

liability 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.”

Id. The Texas Supreme Court answered the first question “no” and did not

answer the second question, Ewing, 420 S.W.3d at 31, and, in so doing, further

explicated the contours of the rule announced in Gilbert. 

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Ewing had entered into a contract with the Tuluso-Midway Independent

School District (“TMISD”) “to serve as general contractor to renovate and build

additions to a school in Corpus Christi, including constructing tennis courts.” 

420 S.W.3d at 31. “Shortly after construction of the tennis courts was

completed,” however, “TMISD complained that the courts started flaking,

crumbling, and cracking, rendering them unusable for their intended purpose

of hosting competitive tennis events.” Id. TMISD then brought suit against

Ewing; “[i]ts damages claims against Ewing were based on faulty construction

of the courts and its theories of liability were breach of contract and negligence.” 

Id. at 31-32. 

Ewing tendered defense of the underlying suit to its insurer, Amerisure

Insurance Co. (“Amerisure”), under an insurance policy that included CGL

coverage. Id. at 32. Amerisure denied coverage, and Ewing brought suit,

seeking “a declaration that Amerisure had, and breached, duties to defend

Ewing and indemnify it for any damages awarded to TMISD in the underlying

suit.” Id. Amerisure“urged that policy exclusions, including the contractual

liability exclusion, precluded coverage and negated its duties to defend and

indemnify.” Id.

As in this case, “[t]he contractual liability exclusion in Amerisure’s policy

excude[d] claims for damages based on an insured’s contractual assumption of

liability except . . . where the insured’s liability for damages would exist absent

the contract.” Id. at 36. Amerisure, relying on Gilbert, argued that the

contractual-liability exclusion applied “because Ewing contractually undertook

the obligation to construct tennis courts in a good and workmanlike manner and

thereby assumed liability for damages if the construction did not meet that

standard.” Id. Ewing, distinguishing Gilbert, argued that its “agreement to

construct the courts in a good and workmanlike manner d[id] not enlarge its

obligations beyond any general common-law duty it might have,” namely “the

obligation it ha[d] under general law to comply with the contract’s terms and to

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exercise ordinary care in doing so.” Id. The Texas Supreme Court agreed with

Ewing. Id.

The court first noted that “TMISD’s claim that Ewing failed to perform in

a good and workmanlike manner and its claims that Ewing negligently

performed under the contracts [were] substantively the same” and then observed

that Ewing “had a common law duty to perform its contract with skill and care.” 

Id. at 37. On this basis, the court held that “a general contractor who agrees to

perform its construction in a good and workmanlike manner, without more, does

not enlarge its duty to exercise ordinary care in fulfilling its contract” and “thus

does not ‘assume liability’ for damages arising out of its defective work so as to

trigger the Contractual Liability Exclusion.” Id. at 38. The Texas Supreme

Court therefore answered the first certified question from this court “no” and

declined to address the second question.1

III.

A.

The district court did not err in concluding that Mid-Continent had

demonstrated that the contractual-liability exclusion applies. The arbitrator

found in favor of the Crownovers, concluding that Arrow had breached the

express warranty to repair contained in paragraph 23.1 of the contract. That

paragraph—which is virtually indistinguishable from the contract provision in

Gilbert that the Texas Supreme Court determined “extend[ed] beyond Gilbert’s

obligations under general law and incorprate[d] contractual standards to which

Gilbert obligated itself,” see 327 S.W.3d at 122, 127—obligated Arrow to

“promptly correct work . . . failing to conform to the requirements of the Contract

Documents.” Whereas contractually agreeing to repair damage resulting from

a failure to exercise reasonable care in performing the work or agreeing to

1 This court subsequently vacated the orderof the district court granting summary

judgment in favor of Amerisure on the ground that coverage was excluded under the

contractual-liability exclusion and remanded the case to the district court for further

proceedings. See Ewing Constr. Co. v. Amerisure Ins. Co., 744 F.3d 917, 917-18 (5th Cir. 2014).

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perform work in a good and workmanlike manner would mirror a contractor’s

duty under general law, see Ewing, 420 S.W.3d at 37-38; Gilbert, 327 S.W.3d at

127, contractually agreeing to repair damage resulting from a failure to comply

with the requirements of the contract would not, see Gilbert, 327 S.W.3d at 127. 

We therefore conclude that Mid-Continent has demonstrated that the

contractual-liability exclusion applies.

In arguing to the contrary, the Crownovers cite paragraph 14.4 of the

construction contract, which states that “[t]he Contractorwarrants to the Owner

. . . that the Work will be free from defects not inherent in the quality required

or permitted, and that the Work will conform with the requirements of the

Contract Documents” and submit that this express warranty of workmanship is

equivalent to the implied warranty of workmanship that already exists under

Texas law. Under Gilbert, the contractual-liability exclusion applies only if

Arrow “assumed” a duty in its contract with the Crownovers that it did not

already have under the law. However, the Crownovers’ focus on whether

paragraph 14.4 involved an assumption of liability beyond what Arrow would

have been subject to under Texas law is misplaced. As Mid-Continent points

out, paragraph 14.4 was not the basis for liability under the arbitration award. 

Rather, paragraph 23.1, which contains the “express warranty to repair,” was

the provision that the arbitrator decided that Arrow had breached. The

Crownovers respond that paragraph 23.1 “merely states that Arrow must repair

nonconforming work under paragraph 14.4” and that, therefore, a violation of

paragraph 23.1 means that there was also a violation of paragraph 14.4.

However, that Arrow is liable under paragraph 23.1 does not

automatically mean that it is liable under paragraph 14.4, even if under some

circumstances, such as the instant case, the latter provision must be violated in

order for the former provision to be violated. This is so because paragraph 14.4

includes a warranty by Arrow “that the Work will conform with the

requirements ofthe Contract Documents,” and paragraph 23.1 states that Arrow

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“shall promptly correct Work rejected by the architect or failing to conform to the

requirements of the Contract” (emphasis added). The arbitrator indicated that

she was not ruling on whether any other claims were “barred by limitations,”

which suggests that it is possible that she thought that the Crownovers had a

viable claim under paragraph 14.4 but that such a claim would nonetheless fail

because it was barred by the statute of limitations. As such, her determination

that Arrow was liable under paragraph 23.1 does not require a determination

that Arrow must have also been liable under paragraph 14.4. Moreover, a

builder may violate paragraph 14.4 by doing non-conforming work, but the

failure to promptly correct such work as required by paragraph 23.1 is a

separate violation of the contract.2

Amicus Texas Association of Builders (“TAB”) argues that applying the

contractual-liability exclusion here renders another exclusion and its

corresponding exception, which are part of CGL contracts, meaningless. TAB

refers to the “Your Work” exclusion, under which insurance does not cover

“‘property damage’ to ‘your work’ arising out of it or any part of it and included

in the ‘products-completed operations hazard.’” The exception to this exclusion

provides for coverage “if the damaged work or the work out of which the damage

arises was performed on your behalf by a subcontractor.” Here, subcontractors

were involved in the work on the foundation of the Crownovers’ home. TAB

argues that applying the contractual-liability exclusion here would remove

coverage when subcontractors caused the property damage, even though the

subcontractor exception to the “Your Work” exclusion should bring the

Crownovers’ claim back under coverage.

2

In their reply brief, the Crownovers suggest, for the first time and with little analysis,

that in agreeing to paragraph 23.1, Arrow did not assume any obligation it did not already

have under Texas law. “We need not address this argument, as it is raised for the first time

in a reply brief.” E.g., Medina Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687,

702 (5th Cir. 2010)). Nonetheless, paragraph 23.1 parallels the provision that the Gilbert

court held constituted an exclusion. 327 S.W.3d at 127. 

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However, this argument assumes that the basis for liability here pertained

to the work done initially by the subcontractors on the Crownovers’ home. Yet

the arbitrator held Arrow liable for failing to repair, per paragraph 23.1, not for

the work done initially. Thus, the “Your Work” exclusion and the subcontractor

exception would not apply in this case. Accordingly, we conclude that MidContinent has demonstrated that the contractual liability exclusion applies.

B.

Because Mid-Continent has demonstrated that a contractual-liability

exclusion applies, the burden shifts to the Crownovers to establish that an

exception to that exclusion applies. Gilbert, 327 S.W.3d at 124. They have failed

to do so.

The Crownovers argue that the exception to the contractual-liability

exclusion for “liability . . . [t]hat the insured would have in the absence of the

contract or agreement” applies and that, therefore, Mid-Continent still has the

duty to indemnify. Specifically, they contend that under Gilbert, the district

court should have looked beyond the arbitration award. If the district court had

done so, they reason, it would have determined that Arrow was liable for

breaching not only the express warranty of good workmanship under paragraph

14.4, but also the implied warranty of good workmanship, which is identical in

substance to the express warranty, but with a longer statute of limitations. 

Relatedly, they argue that the district court contravened Texas law in concluding

that the express warranty of good workmanship contained in Arrow’s

construction contract with the Crownovers superseded any implied warranty of

the same.

These arguments are unavailing. First, Gilbert does not permit us to look

beyond the arbitration award. “[I]t is well settled that a claim based on a

contract that provides indemnification from liability does not accrue until the

[insured’s] liability becomes fixed and certain.” 327 S.W.3d at 134 (internal

quotation marks omitted). “[T]he duty to indemnify arises from proven,

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adjudicated facts.” Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 275

(Tex. Ct. App. 2001). The Gilbert court explained: 

As modified by the . . . exception, the exclusion precludes the

insurer’s liability for indemnity if the insured is obligated to pay

only because of its contractually assumed liability. If the insured’s

liability is because of an otherwise covered basis in addition to its

contractually-assumed liability, the . . . exception brings the claim

back into coverage.

327 S.W.3d at 134 (emphasis added). 

Thus, the exception applies only if Arrow is liable to the Crownovers

“because of an otherwise covered basis in addition to its contractually-assumed

liability.” Id. Here, the only ground on which the arbitrator awarded damages

to the Crownovers was the breach of the express warranty to repair contained

in paragraph 23.1, which was part of Arrow’s contractually assumed liability. 

Furthermore, the Crownovers’ argument on this point depends on the premise

that the arbitrator awarded damages based on paragraph 14.4 and, as

previously explained, she did not. Accordingly, the exception does not apply. See

id. at 134 (“Gilbert asserts no other basis for its settlement than the breach of

contract claim; thus, Gilbert’s settlement payment for which it seeks indemnity

simply was not a liability for damages it had apart from its contract with DART,

as it must have been in order for the . . . exception to apply.”).

Additionally, the Crownovers’ argument fails because the implied

warranty of good workmanship was superseded by the express warranty of good

workmanship. In Beucher, the Texas Supreme Court has held that “the parties’

agreement may supersede the implied standard for workmanship [and thus] the

implied warranty of good workmanship may be disclaimed by the parties when

their agreement provides for the manner, performance or quality of the desired

construction.” 95 S.W.3d at 274-75. The Crownovers have failed to articulate

any reason why the express warranty here fails to meet this requirement.

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IV.

Finally, the Crownovers argue that the district court erred in granting

summary judgment by: (1) basing its decision on a rejection of the implied

warranty of good workmanship; and (2) failing to give the Crownovers time to

file a response, or a motion for leave to file a response, to Mid-Continent’s surreply regarding this issue. We disagree.

A.

The district court did not impermissibly base its decision on a rejection of

the implied warranty of good workmanship. Both parties moved for summary

judgment and each briefed all issues related to coverage, exclusions to coverage,

and exceptions to exclusions. The Crownovers raised the implied warranty of

good workmanship in their briefing. That the district court agreed with MidContinent’s analysis on that issue is not comparable to granting summary

judgment on a ground of which the non-movant had no notice. See Lozano v.

Ocwen Fed. Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007) (noting that the nonmovant must be “on notice to present arguments” on each claim in their response

to a summary judgment motion). Accordingly, the district court did not “grant

summary judgment sua sponte on grounds not requested by the moving party.’” 

Baker v. Metro. Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004) (internal

quotation marks omitted).

B.

The Crownovers cite no authority for reversing the grant of summary

judgment based on the district court’s refusal to provide them an opportunity to

respond to Mid-Continent’s arguments regarding the implied warranty of good

workmanship. Moreover, as we have now fully considered the Crownovers’

arguments on this point, and conclude that they lack merit, any alleged error by

the district court here is harmless.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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