D.R. HORTON-TEXAS, LTD., PETITIONER, v. MARKEL INTERNATIONAL INSURANCE COMPANY, LTD., RESPONDENT, 300 S.W.3d 740

Summary

The petition in the underlying construction defect suit identified only the general contractor as the party responsible for the defects and negligent attempts to repair them. The general contractor asserted that the subcontractor who obtained the insurance policy was responsible; however, the subcontractor was neither sued in the construction defect action nor implicated by the pleadings. The insurer refused to defend the general contractor because the underlying petition did not plead facts indicating that the subcontractor's work was defective. The court noted that the issue of whether extrinsic evidence should have been considered on the duty to defend was waived under Tex. R. Civ. P. 166a(c) because the general contractor did not raise this argument in its response to the insurer's summary judgment motion. The court further stated that resolution of indemnity issues sometimes had to be deferred until after the underlying lawsuit was resolved because coverage might turn on facts ...