In June 2026, Judge Pittman for the United States District Court for the Western District of Texas granted summary judgment for an insurer, finding that the insurer did not have a duty to defend four “concrete cancer” cases in Austin. The Court in FCCI Insurance Company v. Easy Mix Concrete Services, Inc., Cause No. 1:23-CV-1433-RP (W.D. Texas, June 1, 2026) held that the silica exclusion in the policyholder’s commercial general liability (CGL) insurance policy in tandem with an extrinsic statement the policyholder made in a separate legal proceeding took the four homeowners’ claims outside of insurance coverage.

The Monroe Exception to the Eight-Corners Rule

Under Texas law, an insurer’s duty to defend is determined by examining the eight corners of the petition or complaint and the terms of the insurance policy.  Monroe Guaranty Ins. Co. v. BITCO Gen. Ins. Corp., 640 S.W.3d 195, 199 (Tex. 2022). This leads to a broad duty to defend. Over the past few years, the Texas Supreme Court has recognized a few limited exceptions to the eight-corners rule, including the Monroe exception in which extrinsic evidence is allowed if the evidence goes “solely” to an issue of coverage, does not overlap with the merits of liability, does not contradict facts in the pleadings, and conclusively establishes the coverage fact to be proved. Id. at 201-202.

The Issue Before the Western District

The Court was asked to determine whether as a matter of law, the silica exclusion in the insurance policies obviated FCCI’s duty to defend Easy Mix in four “concrete cancer” cases.

The Western District’s Opinion

Easy Mix, the policyholder, has been sued scores of times for supplying shotcrete for swimming pools in Austin that have developed cracks which the media has dubbed, “concrete cancer”. Cracking of pool shells can be caused by a multitude of factors, together or alone, including pool movement, improper spacing or omission of reinforcing steel, and chemical reactions. The chemical reactions include alkali aggregate reactions (AAR) and delayed ettringite formation (DEF). Within the category of ARR are two generally recognized subcategories, alkali silica reaction (ASR) and alkali carbonate reaction (ACR).

Many if not most of the cases against Easy Mix have been transferred to Multi-District Litigation, including the four homeowners’ claims at issue in this matter. Of the four lawsuits at issue, the live pleadings in three of them do not specifically plead that ASR is the cause of the cracking. Instead, the plaintiffs in those lawsuits allege that AAR caused the cracking. The plaintiff in the fourth lawsuit alleged that ASR and improperly installed rebar caused the cracking.

One of Easy Mix’s insurers, FCCI, has taken the position that the silica exclusion in its primary and excess CGL policies excludes coverage for each of the four lawsuits. The silica exclusion in the FCCI policies states as follows.

This insurance does not apply to:

Silica or Silica-Related Dust

…

1. “Property damage” arising, in whole or in part, out of the actual, alleged, threatened or suspected contact with, exposure to, existence if, or presence of “silica” of “silica-related dust”;
2. Any loss, cost or expense arising, in whole or in apart, out of the abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, remediating, disposing of, or in any way responding to, assessing the effects of, “silica” or “silica-related dust”, by any insured or by any other person or entity.

The term, “silica”, is defined in relevant part in the policies as, “silicon dioxide (occurring in crystalline, amorphous and impure forms), silica particles, silica dust or silica compounds.”

Because the pleadings in the four lawsuits did not provide adequate clarity about whether the cracking was caused by ASR or AAR or some other factor, the Court invoked the Monroe exception to the eight corners rule. Specifically, the Court looked to a statement Easy Mix made in its “Supplemental Court Ordered List of Common Causes” filed in the MDL court that, “all claims alleged ASR or Concrete Cancer as the cause of cracking”. Based solely on that one statement, the Court concluded that all four lawsuits involved cracking due to ASR and therefore, under the silica exclusion in the CGL policies, FCCI does not have a duty to defend Easy Mix. 

The Impact of the Court’s Opinion

It is unclear whether the extrinsic evidence relied upon by the Court clarifies the cause of the cracking. As noted, “concrete cancer” is a broad term used by the media that lacks precise scientific definition. It could encompass ASR, ACR, DEF or any number of other phenomena that can cause and has caused cracking in swimming pools. Easy Mix’s statement to the MDL court was that ASR or Concrete Cancer, not just or only ASR, has caused the cracking.

It is further unclear whether the requirements of the Monroe exception are fully met in the FCCI case. Easy Mix’s statement in the MDL court does not appear to apply “solely” to a coverage issue. Instead, the pleadings in three of the four lawsuits indicate that AAR, not ASR, caused the cracking. The extrinsic evidence seemingly contradicts the facts in the live pleadings as well as overlaps with the merits of the underlying liability actions.

As Easy Mix’s attorneys argued to the Court, the silica exclusion, at the time the FCCI policies were bound, was likely intended to cover airborne or friable silica, not silica embedded in concrete. Compounding matters, sand, an essential part of most concrete mixes, is comprised mostly of silica. Concrete subcontractors and the general contractors which retain them should consider discussing with their insurance agents and coverage counsel the scope of the silica exclusion and how to obtain the most complete coverage for the work.

Cites

FCCI Insurance Company v. Easy Mix Concrete Services, Inc., Cause No. 1:23-CV-1433-RP (W.D. Texas, June 1, 2026)

Monroe Guaranty Ins. Co. v. BITCO Gen. Ins. Corp., 640 S.W.3d 195, 199 (Tex. 2022)

 

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