Austin Indep. Sch. Dist. v. H.C. Beck Partners, Ltd

In Austin Indep. Sch. Dist. v. H.C. Beck Partners, Ltd., No. 03-07-00228-CV, 2009 WL 638189 (Tex. App.--Austin Mar. 13, 2009, pet. denied), AISD contracted with H.C. Beck for mold remediation in an elementary school. One of H.C. Beck's subcontractors damaged AISD's property, and AISD's insurance carrier paid for the repairs. Id. AISD sued H.C. Beck and, in accordance with AISD's policy, the carrier was subrogated to AISD's claims. Id. H.C. Beck moved for summary judgment asserting, among other things, the carrier had no subrogation right. Id. The district court granted the motion, but we reversed. The agreement between AISD and H.C. Beck provided that "AISD shall purchase and maintain liability and property insurance, including waivers of subrogation." Beck argued that provision constituted a waiver of subrogation. The Court concluded the provision was "not, itself, a waiver of subrogation rights." Id. Instead, "such a waiver must be part of the insurance policy obtained by AISD." Id. But AISD's policy did not contain an explicit waiver of subrogation. Id. The policy described the carrier's subrogation right, then stated AISD "may waive its rights against another party by specific written agreement . . . ." This language did not waive subrogation rights, rather it merely allowed AISD "to release or waive claims by 'specific written agreement' under certain circumstances." H.C. Beck did not contend AISD had released or waived the claims at issue in the lawsuit. Id. Enforcing the contracts as written, we concluded, "without an express waiver of subrogation by the insurer or a release or waiver of claims by the insured in this case, the insurer's subrogation rights remain governed by its policy with the insured." Id.