Texas exclusions j(5) and j(6).

In Evanston Ins. Co. v. D&L Masonry of Lubbock, Inc., No. 07-10-00358-CV (Tex. Ct. App. April 18, 2011), insured masonry subcontractor D&L sued its CGL insurer Evanston to recover costs incurred by D&L for the replacement of window frames damaged by D&L while performing masonry work adjacent to the window frames.  The trial court granted summary judgment for D&L.  On appeal, the intermediate court of appeal affirmed.  Applying Texas law, the court rejected Evanston’s argument that the property damage to the window frames fell within exclusions j(5) and j(6).  Specifically, the court held that, although D&L was working adjacent to the window frames, applied soap and tape to the frames to protect them, and attempted to remove mortar from the frames, because it did not contract to perform work on the window frames, D&L was not “working on” the window frames which is requisite element of exclusions j(5) and j(6).