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 CO MPANY, APPELLANT

v. D&L MASONRY OF LUBBOCK, INC., APPELLEE

FROM THE COUNTY COURT AT LA W 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 Masonr y, Inc. (D&L) and denial of the summary judgment filed by Evanst on. We will affirm.2 Factual and Procedural Background

Evanston issued D&L a comme rcial general liability in surance policy, number CL420401831. 1 This policy had an applicable cove rage period from January 1, 2007, through January 1, 2008. B eginning January 1, 2008, and continuing through January 1, 2009, D&L was covered by policy number CL420402187, al so issued by Evanston. During the applicable time period, D&L wa s engaged in the masonr y business and had been engaged as a subcont ractor for Lee Lewis Constructi on, Inc. (Lewis) to install masonry on renovations and improvements to Dillman Elementary School and Watson Junior High in Muleshoe, Texas. Bec ause 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 mo rtar stains were found on many of the window frames. Additiona lly, some of the frames were scratched when D&L attempted to remove some of the excess mort ar that had fallen on the frames during the masonry work. After th e window frames were examined, it became apparent that the school would not accept t he completion of the pr oject with the window

1 Evanston mentions only one policy in it s 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, t he brick and mortar work is done before the windows and frames are installed.3 frames in a tarnished and scrat ched condition. Further, t he school would not agree to paint the window frames because future maintenance costs would be incurred repainting the frames periodi cally. Eventually, Lewis t ook control and had another subcontractor replace all of the damaged frames. D&L was c harged and paid the $58,113 cost of replacement. D&L submitted a claim for t he cost of replacement to Evanston. Evanston denied pa yment 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 diffe rent theories of recovery. After some discovery, both D&L and Evanston fil ed 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. Subs equently, D&L gave notice of non-suit without prejudice as to all other causes of action pleaded in it s 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 C ourt. 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 reas ons 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 bef ore the trial court that the response would be considered a cross-moti on 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 su mmary 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 grant ing of D&L’s summary judgment and denying Evanston’s summary judgment, we are being a sked 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 wh ich D&L made its claim. The question presented to this Court is whether the e xclusions relied upon by Evanston to deny D&L’s claim apply. If the exclusions are no t applicable, then the trial court was correct in granting D&L’s summary judgm ent 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 c onstruing the exclusions contained within the policy, therefore, we must adopt the construction ur ged by the insured if that5 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 Fo rm 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 fr om 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 i ndirectly on your behalf are performing operations, if the “proper ty 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 t he exclusion of par agraph 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 perfo rmed 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 fu rnished in connection with such work or operations. However, no one is contesting the definitions; rather, it appears the co nflict arises in the application of the defin itions 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 a nd the window frame constitutes working on the window frames. Ev anston’s position is that the activity of applying the tape to the window frames an d soap to the windows was work on the window frames for purposes of the exclus ions. Further, Evanston contends that allowing the mortar to come into contact wit h the window frame also constituted work on the frames. Finally, Evanston co ntends that any effort D&L took to eliminate any of the mortar from the window fram e was also work on the windo w frames. Under Evanston’s theories, all of this work on the window fr ames 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 inclu de work on the frames. Rather, their work was with the brick and mortar which had to be pl aced next to the frames in order to seal the frames. Accordingly, conclude s D&L, the exclusions do not apply.
The purpose of a commercial general liabil ity 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 (5 th Cir. 2009). If such were not the case, then the in sured would have, in effect, contracted for indemnification for property damage caused by its own defective workmanship. See7 Houston Bldg. Serv., Inc. v. Am. Gen. Fire & Cas. Co. , 799 S.W.2d 308, 310 (Tex.App.—Houston [1 st Dist.] 1990, writ denied).
To properly analyze the question before th e 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 particula r 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 dama ge to, “That particular part of any property that must be restored, repai red, or replaced because ‘y our work’ was incorrectly performed on it.” What work was D&L cont racted 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 fram es came about only as a prophylactic measure to attempt to prevent damage.
In Gore Design Completions, LTD. v. Hartford Fire Ins. Co. , the 5 th Circuit addressed this very issue while trying to asce rtain whether exclusion J(6) applied to the claim of Gore. 538 F.3d 365, 371 (5 th Cir. 2008). Gore involved work by Gore on a portion of the electrical system of a business jet. The allega tions were that, as a result of Gore’s subcontractor’s negligent work to a component system, the entire electrical system had to be replaced whic h resulted in damage to the entire aircraft. When Gore tried to get Hartford to undertake its defense, Hartford denied cove rage contending that an exclusion worded the same as J(6) would exclude coverage to the entire aircraft. In8 finding that Hartford did in fact have covera ge, the court held that Hartford’s position reads out the words “that particular part” in arri ving at its interpretation of the exclusion. Id . Because the damages sought went beyond t he scope of “that particular part” that Gore was responsible for, the court found that Hartford owed a duty of defense. Id

. Later, the 5 th Circuit construed an insurance ex clusion based upon the definition of “your work.” See Wilshire Ins. Co. v. RJT Constr., LLC, , 581 F.3d 222, 226 (5 th 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-c ompleted operations hazard.” In construing this exclusion, the court held that the excl usion only precluded coverage for liability for repairing or r eplacing the insured’s own defective work; it does not exclude coverage for damage to other property resulting fr om the defective work. Id . In so holding, the court cited t he Texarkana Court of Appeals’s case of Travelers Ins. Co. v. Volentine , 578 S.W.2d 501, 503 (Tex.Civ.App.—Tex arkana 1979, no writ). Travelers dealt with a garage liability policy where th e insured had performed a valve job on a customer’s car. Id . at 502. The allegation was that, be cause 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 produ ct 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 insuranc e company owed the insured a defense, the United States District Court for t he Western District of Texas addressed the “That Particular Part” exclusi on 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 entir e tubing string dropped into the well thereby alle gedly causing damage to the well bore and casing. Id . The insurance company was asked to pay the cost of defense of a subs equently filed state court case. Id . at 669. The company refused conte nding that it did not have coverage for a number of reasons, one of which was because of policy excl usions 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), t he 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 negligenc e 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 acc ept the reasoning of Houston Bldg. as controlling. See 799 S.W.2d at 311. Howeve r, we decline to do so as the facts in that case are distinguishable from t he facts presented to us. It is true that the case involved an application of the same excl usions 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 at10 issue occurred when an employee of the insured, while providing the aforementioned janitorial services, applied linseed oil to wooden doors while clean ing the premises. Id

. The doors and the frames suffered discolorati on 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 fa cts of the present ca se 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 t heir discussions of “Your Work” and “That Particular Part” language of the various policie s 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). Therefor e, the trial court did not err in granting D&L’s motion for su mmary judgment. Accordingly, Evanston’s single issue is overruled.

Conclusion
Having overruled Evanston’s only issu e, the judgment of the trial court is affirmed.

Mackey K. Hancock Justice Pirtle, J., dissenting wi thout written opinion.