NO. 07-10-00359-CV 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

APRIL 18, 2011 

EVANSTON INSURANCE COMPANY, APPELLANT 

v. 

D&L MASONRY OF LUBBOCK, INC., APPELLEE 

 FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY; 

NO. 2009-564,144; HONORABLE JUDY A. PARKER, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

 Evanston Insurance Company (Evanston) appeals the trial court’s granting of a 

summary judgment in favor of D&L Masonry, Inc. (D&L) and denial of the summary 

judgment filed by Evanston. We will affirm. 
2 

Factual and Procedural Background 

 Evanston issued D&L a commercial general liability insurance policy, number 

CL420401831.1

 This policy had an applicable coverage period from January 1, 2007, 

through January 1, 2008. Beginning January 1, 2008, and continuing through January 

1, 2009, D&L was covered by policy number CL420402187, also issued by Evanston. 

During the applicable time period, D&L was engaged in the masonry business and had 

been engaged as a subcontractor for Lee Lewis Construction, Inc. (Lewis) to install 

masonry on renovations and improvements to Dillman Elementary School and Watson 

Junior High in Muleshoe, Texas. Because of scheduling difficulties and weather 

concerns, D&L did not do the masonry work until after the window frames and windows 

had been installed.2

 Because the windows and frames were already in place, D&L had 

to attempt to seal the area between the frames and brick with mortar. In an effort to 

prevent masonry mortar from damaging the window and frames, D&L used masking 

tape around the window frames and soap and water to soap the windows. After D&L 

had completed the masonry work, the schools were examined and mortar stains were 

found on many of the window frames. Additionally, some of the frames were scratched 

when D&L attempted to remove some of the excess mortar that had fallen on the 

frames during the masonry work. After the window frames were examined, it became 

apparent that the school would not accept the completion of the project with the window 

 1

 Evanston mentions only one policy in its brief, CL420402187, however, neither 

party contests that there was a commercial general liability policy issued by Evanston in 

favor of D&L in full force at all times relevant to this dispute. 

2

 The record reflects that, typically, the brick and mortar work is done before the 

windows and frames are installed. 
3 

frames in a tarnished and scratched condition. Further, the school would not agree to 

paint the window frames because future maintenance costs would be incurred 

repainting the frames periodically. Eventually, Lewis took control and had another 

subcontractor replace all of the damaged frames. D&L was charged and paid the 

$58,113 cost of replacement. D&L submitted a claim for the cost of replacement to 

Evanston. Evanston denied payment claiming that the policy exclusions applied 

because the window frame damage was damage to property upon which D&L 

performed its work. 

 D&L filed suit pursuant to several different theories of recovery. After some 

discovery, both D&L and Evanston filed motions for summary judgment.3

 The trial court 

granted D&L’s motion for summary judgment on its breach of contract claim and denied 

Evanston’s motion for summary judgment. Subsequently, D&L gave notice of non-suit 

without prejudice as to all other causes of action pleaded in its live pleadings. The trial 

court signed an order granting the non-suit without prejudice and Evanston gave timely 

notice of appeal. 

 Evanston presents one issue before this Court. It is Evanston’s contention that 

the trial court erred in granting summary judgment in favor of D&L and denying 

Evanston’s summary judgment. For the reasons hereafter stated, we disagree and 

affirm the judgment of the trial court. 

 3

 D&L’s motion for summary judgment was filed as a part of its response to 

Evanston’s motion for summary judgment. The parties stipulated before the trial court 

that the response would be considered a cross-motion for summary judgment. 
4 

Standard of Review

 We review the granting or denial of a motion for summary judgment de novo. 

See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both 

parties file a motion for summary judgment, as in this case, and one is granted and one 

is denied then we, as the reviewing court, must determine all questions presented and 

render the judgment that should have been rendered by the trial court. See HCBeck, 

Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009). 

Analysis

 In reviewing the trial court’s granting of D&L’s summary judgment and denying 

Evanston’s summary judgment, we are being asked to construe the policy of insurance 

under which D&L made its claim. There is no dispute about whether the policy was in 

full force at the time of the loss upon which D&L made its claim. The question 

presented to this Court is whether the exclusions relied upon by Evanston to deny 

D&L’s claim apply. If the exclusions are not applicable, then the trial court was correct 

in granting D&L’s summary judgment on its breach of contract theory. If the exclusions 

do apply, then the judgment the trial court should have rendered is to grant Evanston’s 

summary judgment. Id. 

 When interpreting an insurance contract, we use the same rules of interpretation 

and construction that we apply to any contract. See Forbau v. Aetna Life Ins., Co., 876 

S.W.2d 132, 133 (Tex. 1994). Our primary concern is to give effect to the intent of the 

parties. Id. In this particular case, we are construing the exclusions contained within 

the policy, therefore, we must adopt the construction urged by the insured if that 
5 

construction is not unreasonable, even if the construction urged by the insurer appears 

to be more reasonable. See Utica Nat’l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 

202 (Tex. 2004). 

 The policy in question provides for coverage for “damages because of ‘bodily 

injury’ or ‘property damage’ to which this insurance applies.” However, paragraph 2 of 

the Commercial General Liability Coverage Form provides for certain exclusions from 

coverage. Evanston contends that paragraph 2. J. (5) and (6) exclude the property 

damage to the window frames in question from coverage. These exclusions deny 

coverage for damages caused to: 

(5) That particular part of real property on which you or any contractors or 

subcontractors working directly or indirectly on your behalf are performing 

operations, if the “property damage” arises out of those operations; 

(6) That particular part of any property that must be restored, repaired, or 

replaced because “your work” was incorrectly performed on it. 

There is an exception to the exclusion of paragraph J(6) which provides, “Paragraph (6) 

of this exclusion does not apply to ‘property damage’ included in the ‘productscompleted operations hazard.’”4

 

 In section V of the policy, definitions are provided for some of the terms that are 

used in the exclusion paragraphs. Paragraph 21 of section V defines “Your Work” as 

follows: 

a. Work or operations performed by you or on your behalf, and 

 4

 Because of our disposition of this matter, we do not reach the exception to the 

exclusion J(6). 
6 

b. Materials, parts or equipment furnished in connection with such work 

or operations. 

However, no one is contesting the definitions; rather, it appears the conflict arises in the 

application of the definitions to the facts. The main point of contention between the 

parties is whether the actions taken by D&L in preparing to apply the mortar, and 

applying the mortar, to the space between the last brick and the window frame 

constitutes working on the window frames. Evanston’s position is that the activity of 

applying the tape to the window frames and soap to the windows was work on the 

window frames for purposes of the exclusions. Further, Evanston contends that 

allowing the mortar to come into contact with the window frame also constituted work on 

the frames. Finally, Evanston contends that any effort D&L took to eliminate any of the 

mortar from the window frame was also work on the window frames. Under Evanston’s 

theories, all of this work on the window frames places D&L’s claim squarely within the 

ambit of both exclusion J(5) and J(6). D&L contends that the policy in question is 

designed to protect the insured when its work damages someone else’s property. 

Under D&L’s theory, their work did not include work on the frames. Rather, their work 

was with the brick and mortar which had to be placed next to the frames in order to seal 

the frames. Accordingly, concludes D&L, the exclusions do not apply. 

 The purpose of a commercial general liability policy is to protect the insured from 

liability for damages when its own defective work or product damages someone else’s 

property. See Mid-Contintent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 211-12 (5th Cir. 

2009). If such were not the case, then the insured would have, in effect, contracted for 

indemnification for property damage caused by its own defective workmanship. See
7 

Houston Bldg. Serv., Inc. v. Am. Gen. Fire & Cas. Co., 799 S.W.2d 308, 310 

(Tex.App.—Houston [1st Dist.] 1990, writ denied). 

To properly analyze the question before the Court, we look to the language of 

each of the exclusions. Turning first to the exclusion contained in J(5), which excludes 

coverage for property damage to, “That particular part of real property on which you or 

any contractors or subcontractors working directly or indirectly on your behalf are 

performing operations, if the ‘property damage’ arises out of those operations.” 

Exclusion J(6) excludes coverage for damage to, “That particular part of any property 

that must be restored, repaired, or replaced because ‘your work’ was incorrectly 

performed on it.” What work was D&L contracted to perform in connection with the 

renovations of the two schools in question? The answer, and both parties agree, is 

masonry work. D&L was not contracted to perform work on the window frames. D&L’s 

contact with the window frames came about only as a prophylactic measure to attempt 

to prevent damage. 

In Gore Design Completions, LTD. v. Hartford Fire Ins. Co., the 5th Circuit 

addressed this very issue while trying to ascertain whether exclusion J(6) applied to the 

claim of Gore. 538 F.3d 365, 371 (5th Cir. 2008). Gore involved work by Gore on a 

portion of the electrical system of a business jet. The allegations were that, as a result 

of Gore’s subcontractor’s negligent work to a component system, the entire electrical 

system had to be replaced which resulted in damage to the entire aircraft. When Gore 

tried to get Hartford to undertake its defense, Hartford denied coverage contending that 

an exclusion worded the same as J(6) would exclude coverage to the entire aircraft. In 
8 

finding that Hartford did in fact have coverage, the court held that Hartford’s position 

reads out the words “that particular part” in arriving at its interpretation of the exclusion. 

Id. Because the damages sought went beyond the scope of “that particular part” that 

Gore was responsible for, the court found that Hartford owed a duty of defense. Id. 

Later, the 5th Circuit construed an insurance exclusion based upon the definition 

of “your work.” See Wilshire Ins. Co. v. RJT Constr., LLC,, 581 F.3d 222, 226 (5th Cir. 

2009). In that case, the exclusion offered by the insurance company was as follows: 

This insurance does not apply to: 

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

included in the “products-completed operations hazard.” 

In construing this exclusion, the court held that the exclusion only precluded coverage 

for liability for repairing or replacing the insured’s own defective work; it does not 

exclude coverage for damage to other property resulting from the defective work. Id. In 

so holding, the court cited the Texarkana Court of Appeals’s case of Travelers Ins. Co. 

v. Volentine, 578 S.W.2d 501, 503 (Tex.Civ.App.—Texarkana 1979, no writ). Travelers

dealt with a garage liability policy where the insured had performed a valve job on a 

customer’s car. Id. at 502. The allegation was that, because of the defective valve job, 

the entire engine was destroyed. Id. at 502-03. Travelers invoked a “worked performed 

by you” exclusion to deny coverage. Id. at 503. Finding that the decisive question was 

whether Volentine’s work product was the engine or merely the valve repair, the court 

held that the valve repair was the work product. Id. at 504. 
9 

 Finally, in determining the issue of whether the insurance company owed the 

insured a defense, the United States District Court for the Western District of Texas 

addressed the “That Particular Part” exclusion under exclusions J(5) and J(6). See

Basic Energy Servs,, Inc. v. Liberty Mut. Ins. Co., 655 F.Supp.2d 666, 676 (W.D. Tex. 

2009). In Basic, the insured was hired to replace an oil pump on a well and, while doing 

so, a leak was detected. Id. at 668. The owner then contracted for Basic to conduct 

pressure testing on the tubing before returning it to the well. Id. While conducting the 

pressure testing and returning the tubing to the well, the entire tubing string dropped 

into the well thereby allegedly causing damage to the well bore and casing. Id. The 

insurance company was asked to pay the cost of defense of a subsequently filed state 

court case. Id. at 669. The company refused contending that it did not have coverage 

for a number of reasons, one of which was because of policy exclusions identical to J(5) 

and J(6) in the present case. Id. at 676. In analyzing the “That Particular Part” 

exclusions of J(5) and J(6), the court came to the conclusion that the “work done on the 

tubing and well bore is not equivalent to working on the entire well.” Id. at 677. Thus, 

the damage to the entire well was due to negligence while working on a distinguishable 

component part and the exclusions J(5) and J(6) did not apply. Id. at 677-78. 

 Evanston urges this court to accept the reasoning of Houston Bldg. as 

controlling. See 799 S.W.2d at 311. However, we decline to do so as the facts in that 

case are distinguishable from the facts presented to us. It is true that the case involved 

an application of the same exclusions as are operative in this case, however, the job 

being performed by the insured was work done directly on the subject of the contract, 

providing janitorial services to the building in question. Id. at 309. The damages at 
10 

issue occurred when an employee of the insured, while providing the aforementioned 

janitorial services, applied linseed oil to wooden doors while cleaning the premises. Id. 

The doors and the frames suffered discoloration damages, and a claim for repayment of 

damages was made to the insured. Id. The insured paid the damages and then 

submitted a claim to the insurance company who, asserting the exclusions, refused to 

pay. Id. Clearly, the work performed in Houston Bldg. was subject to the exclusions of 

J(5) and J(6). But, just as clearly, the facts of the present case are unquestionably 

different and lead to a different result. Therefore, we do not find Houston Bldg. to be 

controlling. 

 After reviewing the above cases and their discussions of “Your Work” and “That 

Particular Part” language of the various policies at issue, we are of the opinion that 

D&L’s construction of the exclusions at work is not unreasonable. See Barnett v. Aetna 

Life Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987). Therefore, the trial court did not err in 

granting D&L’s motion for summary judgment. Accordingly, Evanston’s single issue is 

overruled. 

Conclusion 

 Having overruled Evanston’s only issue, the judgment of the trial court is 

affirmed. 

 Mackey K. Hancock 

 Justice 

Pirtle, J., dissenting without written opinion.