PLAINTIFF’S COMPLAINT FOR DECLARATORY RELIEF PAGE 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

THE CINCINNATI INSURANCE 

COMPANY,

Plaintiff,

vs.

ONE STOP SERVICES, INC. AND ARRIS 

RESERVE SAN ANTONIO, LLC.

Defendants.

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CIVIL ACTION NO. 5: 20-cv-471

PLAINTIFF’S COMPLAINT FOR DECLARATORY RELIEF

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COMES THE CINCINNATI INSURANCE COMPANY, Plaintiff in the aboveentitled and numbered cause, and petitions this Court pursuant to the FEDERAL DECLARATORY 

JUDGMENT ACT, 28 U.S.C. §§2201 et seq. and Rule 57 of the FEDERAL RULES OF CIVIL 

PROCEDURE for consideration and a declaration of the parties’ respective rights and/or 

obligations under a commercial general liability insurance policy for which Defendant One Stop 

Services, Inc. is presently seeking a defense and indemnity. Specifically, Plaintiff seeks a 

declaratory judgment with respect to a pending state court action: a civil suit brought by 

Defendant Arris Reserve San Antonio LLC alleging construction defects against Spartan 

Contracting Corporation, after which Spartan Contracting Corporation commenced a third party 

action against Defendant One Stop Services, Inc. In support of its Complaint for Declaratory 

Relief, Cincinnati would respectfully show the Court as follows:
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I.

PARTIES

1. Plaintiff, The Cincinnati Insurance Company, (hereinafter “Cincinnati”) is a 

commercial liability insurance carrier incorporated in Delaware with its headquarters and 

principal place of business in Cincinnati, Ohio. It is citizen of the states of Ohio and Delaware. 

2. Defendant One Stop Services, Inc. (“One Stop”) is a domestic corporation, a 

citizen of the state of Texas, incorporated in the state of Texas, and duly organized and existing 

under the laws of the State of Texas. It is not a citizen of the States of Ohio or Delaware. One 

Stop’s principal place of business is located at 5401 Bandera Rd San Antonio, TX 78238. 

Service may be made upon One Stop by serving its Registered Agent, Jim Flores, at One Stop’s 

registered office located at 5401 Bandera Rd San Antonio, TX 78238. 

3. Arris Reserve San Antonio, LLC (“Arris Reserve”) is a citizen of the State of 

Texas and a limited liability company registered in Texas, with its principle office in San 

Antonio, Texas. It is not a citizen of the States of Delaware or Ohio. Arris may be served with 

process through its registered agent, Richard Owen at 3824 Villanova St., Houston Texas 77005. 

II.

JURISDICTION AND VENUE

4. This declaratory judgment action is brought under 28 U.S.C., §§ 2201 et seq. and 

Rule 57 of the FEDERAL RULES OF CIVIL PROCEDURE, for the purpose of determining a question 

of actual controversy between the parties, as hereinafter more fully set forth. The jurisdiction of 

this Court is proper under 28 U.S.C. § 1332, based upon the diversity of citizenship between the 

Plaintiff and Defendants, and the amount in controversy exceeds the sum of $75,000.00, 

exclusive of interest and costs.

5. Venue is properly maintained in this Court pursuant to 28 U.S.C. § 1391 as the 
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judicial district in which some of the defendants reside, where a substantial part of the events 

giving rise to this action for declaratory relief occurred, and it is the judicial district overseeing 

the Underlying Lawsuit at issue in the present Declaratory Judgment Action.

III.

INSURING AGREEMENT MADE THE BASIS OF THIS ACTION 

6. Cincinnati issued a Commercial General Liability Policy and Umbrella Liability 

Policy to One Stop, the Named Insured, policy number EPP 007 75 72, for the period May 16, 

2017 to May 16, 2018 (hereinafter collectively referred to as the “Policy”). 

7. The terms and conditions of the Policy having relevance here are as follows: 

**********

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

. . . 

SECTION I – COVERAGES

COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay 

as damages because of “bodily injury” or property damage” to which this 

insurance applies. We will have the right and duty to defend the insured 

against any “suit” seeking those damages. However, we will have no 

duty to defend the insured against any “suit” seeking damages for 

“bodily injury” or “property damage” to which this insurance does not 

apply. We may, at our discretion, investigate any “occurrence” and settle 

any claim or “suit” that may result. . . . 

 . . . 

b. This insurance applies to “bodily injury” and “property damage” only if:

(1) The “bodily injury” or “property damage” is caused by 

an “occurrence” that takes place in the “coverage 

territory”;

(2) The “bodily injury” or “property damage” occurs during 

the policy period; and
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 . . . 

2. Exclusions

This insurance does not apply to:

. . . 

l. Damage to Your Work

“Property damage” to “your work” arising out of it or any part of it and 

included in the “products-completed operations hazard.”

This exclusion does not apply if the damaged work or the work out of 

which the damage arises was performed on your behalf by a 

subcontractor. 

. . . 

SECTION V- DEFINTIONS

. . . 

6. “Coverage Territory” means:

a. The United States of America (including its territories and

possessions)...

. . .

16. “Occurrence” means an accident, including continuous or repeated exposure to 

substantially the same general harmful conditions. 

17. “Property damage” means:

a. Physical injury to tangible property, including all resulting loss of use of 

that property. All such loss of use shall be deemed to occur at the time 

of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such 

loss of use shall be deemed to occur at the time of the “occurrence” that 

caused it.

. . .

19. “Products-completed operations hazard”:

a. Includes all “bodily injury” and “property damage” occurring away from 

premises you own or rent and arising out of “your product” or “your 

work” except:

(1) Products that are still in your physical possession; or

(2) Work that has not yet been completed or abandoned. . . 

. . . 
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21. “Suit” means a civil proceeding in which money damages because of “bodily 

injury”, “property damage” or “personal and advertising injury” to which this 

insurance applies are alleged. “Suit” includes

a. An arbitration proceeding in which such damages are claimed and to 

which the insured must submit or does submit with our consent;

b. Any other alternative dispute resolution proceeding in which such 

damages are claimed and to which the insured submits with our consent; 

or

c. An appeal of a civil proceeding.

. . .

22. “Your work” 

a. Means:

(1) Work or operations performed by you or on your behalf; and

(2) Materials, parts or equipment furnished in connection with such 

work or operations.

b. Includes:

(1) Warranties or representations made at any time with respect to 

fitness, quality, durability, performance or use of “your work”; 

and

(2) The providing of or failure to provide warnings or instructions.

. . . 

COMMERCIAL UMBRELLA LIABILITY COVERAGE FORM

. . . 

SECTION I - COVERAGE

A. Insuring Agreement

1. We will pay on behalf of the insured the “ultimate net loss” which the 

insured is legally obligated to pay as damages for “bodily injury”, 

“personal and advertising injury” or “property damage” to which this 

insurance applies:

a. Which is in excess of the “underlying insurance”; or

b. Which is either excluded or not insured by “underlying 

insurance”.

2. This insurance applies to “bodily injury”, “personal and advertising 

injury” or “property damage” only if:
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a. The “bodily injury”, “personal and advertising injury” or 

“property damage” is caused by an “occurrence” that takes place 

in the “coverage territory”; and 

b. The “bodily injury” or “property damage” occurs during the 

policy period shown in the Declarations; or 

. . .

B. Exclusions

This insurance does not apply to:

. . . 

7. Damage to Your Work1

“Property damage” to “your work” arising out of it or any part of it and 

included in the “products-completed operations hazard.”

This exclusion does not apply if the damaged work or the work out of 

which the damage arises was performed on your behalf by a 

subcontractor, provided such liability is insured by valid and collectible 

“underlying insurance”, as listed and described in the Schedule of 

Underlying Insurance, and then only for such hazards for which coverage 

is afforded by such “underlying insurance.” 

. . .

SECTION V- DEFINITIONS

. . . 

6. “Coverage Territory” means anywhere.

. . . 

16. “Occurrence” means:

a. an accident, including continuous or repeated exposure to substantially 

the same general harmful conditions that results in “bodily injury” or 

“property damage”; or ...

. . . 

19. “Products-completed operations hazard”:

a. Includes all “bodily injury” and “property damage” occurring away from 

premises you own or rent and arising out of “your product” or “your 

work” except:

 

1 As modified by Form US 3010 12 04.
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(1) Products that are still in your physical possession; or

(2) Work that has not yet been completed or abandoned. ...

20. “Property damage” means:

a. Physical injury to or destruction of tangible property including all 

resulting loss of use. All such loss of use shall be deemed to occur at the 

time of the physical injury or destruction that caused it; or

b. Loss of use of tangible property that is not physically injured. All such 

loss of use shall be deemed to occur at the time of the “occurrence” that 

caused it.

. . . 

22. “Suit” means a civil proceeding in which money damages because of “bodily 

injury”, “personal and advertising injury” or “property damage” to which this 

insurance applies are alleged. “Suit” includes:

a. An arbitration proceeding in which such money damages because of

“bodily injury”, “personal and advertising injury” or “property 

damage” to which this insurance applies are alleged. “Suit” 

includes:

a. Any other alternative dispute resolution proceeding in which 

such money damages are claimed and to which the insured

submits with our consent; or

b. An appeal of a civil proceeding.

. . . 

24. “Ultimate net loss” means the sum actually paid or payable in the settlement or 

satisfaction of the insured’s legal obligation for damages, covered by this 

insurance, either by adjudication or compromise. “Ultimate net loss” does not 

include Defense and Supplementary Payments as described in SECTION I –

COVERAGE, C. Defense and Supplementary Payments of this Coverage Part.

25. “Underlying insurance” means the insurance listed in the Schedule of 

Underlying Insurance and the insurance available to the insured under all other 

insurance policies applicable to the “occurrence”. “Underlying insurance” also 

includes any type of self-insurance or alternative method by which the insured 

arranges for funding of legal liabilities that affords coverage that this Coverage 

Part covers.

. . . 

**********
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IV.

UNDERLYING LITIGATION

8. On August 21, 2019, Spartan Contracting Corporation (“Spartan”) was sued in the 

following state court action by plaintiff Arris Reserve, which is currently pending in District 

Court in Bexar County, Texas: 

Arris Reserve San Antonio, LLC v. Spartan Contracting Corporation, Cause No. 

2019CI17064, in the 37th Judicial District Court in Bexar County, Texas (the 

“Underlying Lawsuit”). 

9. On October 3, 2019, Spartan filed “Defendant, Spartan Contracting Corporation’s 

Original Third-Party Petition and Request for Disclosure” (“Third-Party Petition”) against One 

Stop in the Underlying Lawsuit. A copy of the Third-Party Petition is attached hereto as 

“Exhibit A.” 

10. As alleged in the Third Party Petition, the Underlying Lawsuit is for damages for 

the defects stemming from an interior renovation project at The Reserve at UTSA/San Antonio 

Unit Upgrades, located in San Antonio, Texas 78249 (“Project”). Arris Reserve alleges that the 

defects were caused by the acts and omission of Spartan and its subcontractors. Relevant to the 

claims against One Stop, the Third Amended Petition alleges, in part, the following:

**********

IV.

FACTS

4. This lawsuit arises out of an interior renovation project at The Reserve at UTSA 

("Project") in San Antonio, Bexar County, Texas.

5. Spartan was the general contractor on the Project.

6. Spartan executed a Subcontract with Third-Party Defendant to "furnish all 

supervision, labor, tools, equipment, services, materials and supplies necessary to 

perform the work herein." See Exhibit 1, Subcontract Agreement.
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7. The Subcontract required that Third-Party Defendant warrant and guarantee its 

work, perform its work in a quality manner, and defend and indemnify Spartan for claims 

and losses resulting from Third-Party Defendant's failure to perform its contractual 

obligations or to satisfy statutory or common law duties.

8. According to Plaintiff, Plaintiff "has suffered physical injury to tangible 

property" and "economic losses as a result of property damage caused by the actions, 

errors, and omissions of Spartan and its subcontractors." Spartan denies Plaintiff’s 

allegations.

9. On August 20, 2019, Plaintiff filed an original petition and commenced this case. 

Plaintiff asserts claims of negligence, purports to assert other unspecified claims against 

Spartan, and seeks damages in excess of $1,000,000. A true and correct copy of Plaintiffs 

original petition, which provides further detail as to the nature of Plaintiffs claims, is 

attached as Exhibit 2.

. . .

**********

11. To that end, Spartan brings claims against One Stop for contractual indemnity, 

breach of contract, breach of warranty, contribution, and negligence. 

V.

ONE STOP’S TENDER TO CINCINNATI

12. One Stop has formally tendered the Underlying Lawsuit to Cincinnati for defense 

and indemnity. Cincinnati is currently defending One Stop in the Underlying Lawsuit, under 

reservation of rights.

VI.

BASIS FOR DECLARATORY RELIEF

13. Cincinnati seeks a declaration from the Court that (1) it owes no duty to defend or 

indemnify One Stop in the Underlying Lawsuit for the damages being sought against One Stop 

by Spartan in the Third Party Petition as the legally undisputable evidence will establish that the 

Damage to Your Work exclusion in the Policy applies to preclude any duty to defend, and, 

alternatively, (2) that it owes no duty to indemnify One Stop for the damages being sought 

against One Stop by Spartan in the Underlying Lawsuit because the undisputable evidence will 
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clearly establish that the Damage to Your Work exclusion in the Policy applies to preclude said 

duty. 

14. Upon information and belief, the undisputable evidence will show that the 

damages sought against One Stop in the Underlying Lawsuit constitute property damage that was 

caused by One’s Stop’s work on the Project inasmuch as the alleged construction defects were 

caused by work or operations performed by One Stop, and/or material, parts, or equipment 

furnished in connection with One Stop’s work or operations as One Stop installed flooring and 

the property damage resulted from defective installation of flooring on the Project. Because the 

undisputed evidence will show that the underlying loss, claims, and property damage which are 

the subject of the Underlying Lawsuit arise out of One Stop’s flooring work on the Project, the 

Damage to Your Work exclusion in the Policy applies to preclude Cincinnati’s duties under the 

Policy.

VII.

ATTORNEY’S FEES

15. Cincinnati has been required to retain legal counsel to represent it and to 

prosecute this Complaint for Declaratory Judgment. Plaintiff is entitled to its reasonable and 

necessary attorneys’ fees, pursuant to 28 U.S.C. § 2202.

VIII.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Plaintiff Cincinnati Insurance Company 

prays for judgment as follows: 

(1) a judgment declaring that the Cincinnati Policy provides no 

coverage for the damages being sought against One Stop in the 

Underlying Lawsuit, including no duty to defend One Stop in the 

Underlying Lawsuit and no duty to indemnify One Stop if there is 
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ultimately a judgment entered against One Stop in the Underlying 

Lawsuit;

(2) a judgment declaring Cincinnati has no contractual or extracontractual obligations to One Stop with regard to the Underlying 

Lawsuit;

(3) a judgment against One Stop for Cincinnati’s costs of court and all 

necessary and reasonable attorneys’ fees; and

(4) a judgment for such other and further relief, general or specific, 

legal or equitable, to which Cincinnati may show itself to be justly 

entitled.

Respectfully submitted,

FANNING HARPER MARTINSON 

BRANDT & KUTCHIN, P.C.

/s/ George L. Lankford

GEORGE L. LANKFORD 

Attorney of Record

State Bar No. 11934800

glankford@fhmbk.com

MARIAM SHAKIR

State Bar No. 24108826

mshakir@fhmbk.com

Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206

(214) 369-1300

(214) 987-9649 fax

ATTORNEYS FOR PLAINTIFF

THE CINCINNATI INSURANCE

COMPANY