FACTS: The Browns hired general contractor Tibke Construction to build a house. Tibke brought
in subcontractor Jerry’s Excavating to prepare and excavate the soil. But Jerry’s failed to perform a
soil test and it was later determined that the house was built on expansive soil that caused damage in
the form of excessive settlement, cracking, and structural unsoundness.
The Browns sued and the general contractor sought coverage under its CGL with Owners
Insurance Company. The Browns did not claim that the general contractor improperly constructed
any part of the house. Rather, they argued that the damage to the house was caused by the failure to
test the soil prior to construction.