In two unrelated cases, the U.S. Fifth Circuit Court of Appeals certified two sets of questions to the Texas Supreme Court. In the first, the insurer denied a hail damage property claim due to pre-existing damage, and the district court granted summary judgment to the insurer on the basis that the insured failed to allocate between covered and non-covered losses. Confronted with the insured's argument that no allocation was required because the roof required replacement as a result of the hail damage alone, the Fifth Circuit certified the following questions to the Supreme Court: "(1) whether any pre-existing damage to the roof makes this a concurrent cause case; (2) if so, whether Plaintiffs—who provided evidence suggesting that the covered hailstorm is the sole reason the roof must be repaired or replaced—must nonetheless attribute their losses; and (3) if so, whether Plaintiffs can satisfy any such attribution obligation by implicitly attributing all of their losses to the hailstorm." Frymire Home Services, Inc. v. Ohio Sec. Ins. Co., No. 21-10012, 2021 WL 3783150 (5th Cir. Aug. 26, 2021), certified question accepted (Sept. 10, 2021).
The second case involves the scope of the "employee" exception to the Texas Anti-Indemnity Act (TAIA), and whether an employee of a general contractor is also considered an employee of a subcontractor. An employee of a general contractor was injured when a crane operated by a subcontractor collapsed. The injured employee obtained a judgment against the subcontractor and the company from which the subcontractor rented the crane, which was an additional insured under the subcontractor's CGL policy. The crane rental company sought reimbursement from the subcontractor for defense and indemnity. The district court concluded that the TAIA prevented such recovery. The issue for the Fifth Circuit became whether the injured employee of the general contractor should be treated as the subcontractor's employee, thus triggering the "employee" exception to the TAIA, because he was considered a co-employee for purposes of the Texas Workers' Compensation Act (TWCA). The Fifth Circuit certified the following question to the Texas Supreme Court: "[w]hether the employee exception to the TAIA, Texas Insurance Code § 151.103, allows additional insured coverage when an injured worker brings a personal injury claim against the additional insured (indemnitee), and the worker and the indemnitee are deemed 'co-employees' of the indemnitor for purposes of the TWCA." Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 2021 WL 3758083 (5th Cir. Aug. 25, 2021), certified question accepted (Sept. 3, 2021).
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