IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20074

Summary Calendar

JAMES FEASTER; PAULETTE FEASTER; DAVID A. FETTNER, 

 Plaintiffs - Appellants

v.

MID-CONTINENT CASUALTY COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:13-CV-3220

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiffs James and Paulette Feaster (“the Feasters”) appeal the district 

court’s grant of summary judgment in favor of Defendant Mid-Continent 

Casualty Company (“Mid-Continent”) on the Feasters’ claims for breach of 

contract, breach of the duty of good faith and fair dealing, and violations of the

Texas Insurance Code and the Texas Deceptive Trade Practices Act. Because 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2015

Lyle W. Cayce

Clerk

 Case: 15-20074 Document: 00513171984 Page: 1 Date Filed: 08/27/2015
No. 15-20074

2

the district court correctly concluded that Mid-Continent has no duty to 

indemnify the Feasters under the terms of their commercial general liability 

(“CGL”) policy, we AFFIRM the judgment of the district court. 

I. Factual & Procedural Background

The Feasters purchased a home built and owned by Kingwood Estate 

Homes, L.L.C. (“Kingwood”), on January 25, 2006. During the construction of 

the property, Kingwood was insured under a CGL policy with Mid-Continent. 

The policy was renewed annually and expired in April of 2009. 

The Feasters started noticing structural and cosmetic damage to their 

home after purchasing the property. They attributed these defects to 

“foundation deflection,” a problem with the home’s foundation, and in 2012, 

they filed suit against Kingwood, among others, in Texas state court for 

violations of the Texas Deceptive Trade Practices Act, negligence, breach of 

warranty, and fraud. Kingwood forwarded the lawsuit to Mid-Continent, 

seeking to invoke the CGL’s duty to defend. Mid-Continent demurred, citing 

several policy exclusions. 

Kingwood did not answer the suit, and default judgment was entered 

against Kingwood. The judgment found Kingwood liable for damage to the 

property arising from Kingwood’s negligent supervision and construction of the 

property. The court held Kingwood liable for $305,130.00 in actual and 

consequential damages. 

When the Feasters were unable to collect against Kingwood, they 

obtained a turnover order granting them Kingwood’s interest in the MidContinent CGL policy. The Feasters then sued Mid-Continent in state court

on a variety of claims stemming from Mid-Continent’s refusal to indemnify 

Kingwood. Mid-Continent removed the suit to federal court. Subsequently, 

the parties filed-cross motions for summary judgment. Mid-Continent argued 

that the damages incurred by the Feasters were not covered due to the CGL’s 

 Case: 15-20074 Document: 00513171984 Page: 2 Date Filed: 08/27/2015
No. 15-20074

3

policy exclusions and therefore Mid-Continent had no duty to indemnify. On 

January 13, 2015, the district court granted Mid-Continent’s motion and 

denied the Feasters’, reasoning that the “your work” exclusion applied. The 

Feasters timely appealed the district court’s grant of summary judgment in 

favor of Mid-Continent.1 

II. Discussion

1. Standard of Review

We review the district court’s grant of summary judgment de novo, 

applying the same standard as the district court. Performance Autoplex II Ltd. 

v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (2003). Summary judgment is 

warranted “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). While we draw all reasonable inferences in favor of the nonmoving party, a party cannot defeat summary judgment with “conclusory 

allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner

v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation and 

internal quotation marks omitted). We may affirm summary judgment on any 

legal ground raised before the district court. Performance Autoplex, 322 F.3d 

at 853. 

The parties agree that Texas insurance law governs this dispute. See id. 

Texas courts construe insurance policies using the same rules of interpretation 

applicable to contracts generally. See Nat’l Union Fire Ins. Co of Pittsburgh v. 

CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). If an insurance contract 

“can be given a definite and certain legal meaning, then it is not ambiguous.” 

 

1 The Feasters incorrectly maintain that the district court granted summary judgment 

on the grounds that the damages to the Feasters’ property did not occur during the CGL’s 

policy period. While this initially served as the district court’s basis for granting summary 

judgment, the district court vacated that opinion and later held that summary judgment was 

warranted because the “your work” exclusion applies. 

 Case: 15-20074 Document: 00513171984 Page: 3 Date Filed: 08/27/2015
No. 15-20074

4

Performance Autoplex, 322 F.3d at 854. If a provision is ambiguous, the policy 

is interpreted in favor of the insured. Id. While “the insured carries the burden 

to establish the insurer’s duty to indemnify by presenting facts sufficient to 

demonstrate coverage,” the burden is on the insurer to prove that an exclusion 

precludes coverage. Nat’l Union Fire Ins. Co of Pittsburgh v. Puget Plastics 

Corp., 532 F.3d 398, 401, 404 (5th Cir. 2008). The duty to indemnify is invoked 

“based on the ‘actual facts’ brought out in the underlying action. Thus, an 

insurer’s duty to indemnify typically can be resolved only after the conclusion 

of the underlying action.” VRV Dev. L.P. v. Mid-Continent Cas. Co., 630 F.3d 

451, 459 (5th Cir. 2011). Because the underlying case does not always resolve 

all questions relevant to the scope of coverage, we also look to the facts

developed in the evidence before the district court. See Puget Plastics Corp., 

532 F.3d at 404.

2. “Your Work” Exclusion

“A CGL policy generally protects the insured when his work damages 

someone else’s property. The ‘your work’ exclusion prevents a CGL policy from 

morphing into a performance bond covering an insured’s own work.” Wilshire 

Ins. Co. v. RJT Const., LLC, 581 F.3d 222, 226 (5th Cir. 2009). Mid-Continent 

argues, and the district court held, that the “your work” provision of the CGL 

policy bars coverage for the Feasters’ damage.2 

The provision at issue here excludes coverage for: “Property damage to 

your [Kingwood’s] work arising out of it or any part of it and included in the 

 

2 The Feasters appear to argue that the “your work” provision is unconscionable. 

However, they fail to cite to any authority supporting their argument. As such, we consider 

this argument abandoned for being inadequately briefed. See L & A Contracting Co. v. S. 

Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994) (citation omitted); FED. R. APP. P.

28(a)(8)(a). The Feasters likewise argue that the policy is a “farce” because Mid-Continent 

did not exercise ordinary care, presumably in rejecting the Feasters’ claim for 

indemnification. Because we conclude that the “your work” exclusion applies, we reject this 

argument.

 Case: 15-20074 Document: 00513171984 Page: 4 Date Filed: 08/27/2015
No. 15-20074

5

products-completed operations hazard.” The policy defines “your work,” in 

part, as “[w]ork or operations performed by you or on your behalf.” Or, as the 

Texas Supreme Court interpreted it, the “your work” provision “generally 

excludes coverage for ‘property damage’ to the insured’s completed work.”3 

On appeal, the Feasters argue that the “your work” exclusion is 

inapplicable because there was no damage to Kingwood’s work. They maintain 

that heaving soil—due to Kingwood’s inadequate preparation of the lot—

eventually caused problems with the property’s foundation, which in turn 

caused cosmetic and structural damage. The Feasters argue that the house 

itself, and not the soil, was Kingwood’s work.4

In Wilshire Ins. Co., we assessed whether a “your work” exclusion

applied when an insured was hired by a homeowner to repair the foundation 

of a house. 581 F.3d at 226. While we concluded that the “your work” exclusion 

“precludes coverage for the cost of repairing [the insured’s] own work, the 

foundation,” we clarified that the exclusion did “not exclude coverage for 

damage to other property resulting from the defective work,” such as walls and 

ceilings. Id.

Unlike in Wilshire, Kingwood was contracted to build the entire house, 

not merely repair the foundation. The Texas Supreme Court has held that in 

the context of the “your work” exception, a “homebuilder’s work extend[s] to 

the entire house.” Id. at 226 (interpreting Lamar Homes, Inc. v. Mid-Continent 

Cas. Co., 242 S.W.3d 1, 11 (Tex. 2007)). The underlying state court documents, 

 

3 To the extent the Feasters argue the “you work” provision is ambiguous, we disagree. 

The policy’s language is clear, and the Feasters’ “[m]ere disagreement over the interpretation 

of [the] provision does not make the provision ambiguous or create a question of fact.” 

Performance Autoplex, 322 F.3d at 854 (citing D.E.W., Inc. v. Local 93, Laborers’ Int’l Union 

of N. Am., 957 F.2d 196, 199 (5th Cir.1992) (interpreting Texas law)).

4 This argument is somewhat illogical as Kingwood could be liable only if it did 

something wrong. If forces outside its control caused the harm, there would be no liability. 

 Case: 15-20074 Document: 00513171984 Page: 5 Date Filed: 08/27/2015
No. 15-20074

6

coupled with the Feasters’ own statements and expert’s report, make clear that 

constructing the foundation, which includes preparation of the soil, was part 

of Kingwood’s responsibilities in constructing the house. See Stoner v. 

Thompson, 578 S.W.2d 679, 684 (Tex. 1979) (“A default judgment admits facts 

which are properly alleged.”). For instance, in the Feasters’ state court suit 

against Kingwood for damage to their property, the Feasters explicitly argued 

that “foundation deflection of a substantial and unacceptable degree” was due 

to Kingwood’s negligent construction and supervision of subcontractors, and 

the Feasters obtained a judgment to that effect. Moreover, the Feasters 

concede on appeal that preparation of the soil was Kingwood’s responsibility. 

They note that the “highly plastic soil . . . expanded [due to] an excess of water 

resulting from poor lot preparation by Kingwood and its subcontractors.” The 

Feasters’ expert also stated that the inadequacies with the soil were due to 

Kingwood’s failure to abide by “the engineers [sic] plans and specifications” 

when constructing the foundation. See Am. Home Assurance Co. v. Cat Tech 

L.L.C., 660 F.3d 216, 222 (5th Cir. 2011) (citing with approval Eulich v. Home 

Indemnity Co., 503 S.W.2d 846, 849 (Tex. Civ. App.—Dallas 1974) (noting that 

“[l]iability for damage to the building resulting from [the failure to] comply 

with specifications is exactly the type of liability which the [exclusion] was 

evidently intended to exclude”)). As such, there is no dispute that the 

preparation of the soil, the foundation, and the house itself constituted 

Kingwood’s work. The Feasters do not appear to contest whether the 

“products-completed operations hazard” requirement is satisfied.5

 

5 Even if the Feasters produced evidence that the property damage arose prior to the 

Feasters’ purchase of the property, this fact dispute would not be material. See Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the 

outcome of the suit under the governing law will properly preclude the entry of summary 

judgment.”). As the district court noted, the CGL policy includes a separate provision 

excluding coverage for “[p]roperty damage to . . . [p]roperty you own.” Kingwood owned the 

 Case: 15-20074 Document: 00513171984 Page: 6 Date Filed: 08/27/2015
No. 15-20074

7

Accordingly, we conclude that the district court did not err in applying 

the “your work” exception in this case, and we AFFIRM the judgment of the 

district court. 

 

property prior to the Feasters’ purchase of the property. Thus, damage that occurred during 

construction would not be covered under this exemption. 

 Case: 15-20074 Document: 00513171984 Page: 7 Date Filed: 08/27/2015