EVIDENCE OF SPECIFIC DATE OF CONSTRUCTION DEFECT INJURY NOT NECESSARY TO TRIGGER DUTY TO DEFEND AND INDEMNIFY UNDER CGL POLICY

In a construction-defect coverage dispute that was decided by a trial court before the Texas Supreme Court’s decision rejecting the manifestation rule and adopting an “actual injury” approach in Don's Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 24–25 (2008), the Austin Court of Appeals recently reversed the trial court’s ruling that the policy did not cover the claim – an analysis which had initially applied a manifestation rule.  Vines-Herrin Custom Homes, LLC v. Great American Lloyds Ins. Co., 2011 WL 6396473, Tex.App.-Dallas, Dec. 21, 2011).  The court determined the actual-injury analysis did not require specific evidence, expert or otherwise, of the date the damages to the house manifested.  The court, reviewing the evidence before the trial court, determined there was sufficient evidence to find the damage occurred while the home was under construction.  It reasoned the policy covered the period of construction, which means the policy was triggered by the lawsuit for both defense and indemnity.