United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED June 2, 2022 No. 20-20621 Lyle W. Cayce Clerk

Osman Moreno,

Plaintiff—Appellant,

versus

Sentinel Insurance Company, Limited,

Defendant—Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-cv-2968

Before Jones, Southwick, and Engelhardt, Circuit Judges. Kurt D. Engelhardt, Circuit Judge: Plaintiff–Appellant Osman Moreno appeals the district court’s summary judgment dismissal of the breach of contract claims that he has asserted, as a third-party beneficiary, against Sentinel Insurance Company, Limited. The district court determined that the insurer’s duty to defend its insured, on which Moreno’s claims are based, was never triggered, relative to Moreno’s underlying personal injury suit, because the insured, N.F. Painting, Inc., never requested a defense or sought coverage. Considering the record before us and applying Texas law, we find no error in the district court’s assessment. Thus, we AFFIRM. Case: 20-20621 Document: 00516341209 Page: 2 Date Filed: 06/02/2022

No. 20-20621

I. In July 2016, Moreno worked as a painter for N.F. Painting, Inc. (“N.F. Painting”) on a project undertaken for Beazer Homes Texas, L.P. and Beazer Homes Texas Holdings, Inc. (collectively “Beazer Homes”). Beazer Homes, a homebuilder, contracted N.F. Painting for work on one of its developments. While on site, Moreno fell from a ladder and sustained serious injuries. A. In November 2016, Moreno sued N.F. Painting and Beazer Homes for damages, in Texas state court, alleging negligence, gross negligence, and negligence per se in connection with his fall. At all relevant times, N.F. Painting was insured by Sentinel Insurance Company, Limited (“Sentinel”) under a “Business Owner’s Policy.” As part of a “Master Construction Agreement” with N.F. Painting, Beazer Homes was an “additional insured” under the Sentinel policy. N.F. Painting’s policy provided coverage for business liability, including personal injury, up to $1,000,000. Regarding payment under that coverage, and the provision of a defense for the insured, the policy stated, in pertinent part: A. COVERAGES 1. BUSINESS LIABILITY COVERAGE (BODILY INJURY, PROPERTY DAMAGE, PERSONAL AND ADVERTISING INJURY) Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury”, “property damage” or “personal and advertising injury” to which this insurance applies.

2 Case: 20-20621 Document: 00516341209 Page: 3 Date Filed: 06/02/2022

No. 20-20621

We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bod