“Marring” Exclusions in Texas: Ambiguity and the Burden of Proof

Thu, 17 Sep 2026 00:16:25 +0000

What is "marring," and why does it keep appearing in property insurance policies when almost nobody can say exactly what it means? In some policies sold in Texas, the word sits in a list of exclusions such as "wear and tear, marring, scratching or deterioration." That is the wording quoted from a Liberty Mutual homeowners policy in a San Antonio federal case over hail damage to a metal roof. Arthur v. Liberty Mut. Pers. Ins. Co., No. SA-21-CV-00602-FB (W.D. Tex. Dec. 20, 2022) (magistrate judge's report and recommendation). Policies rarely define the word.

Insurance policies are form contracts. The policyholder does not negotiate the wording. When an insurer chooses to keep an undefined, elastic word in its exclusions and then relies on that word to deny a claim, the dispute that follows is not the fault of the homeowner or the homeowner's lawyer. This article looks at how Texas law handles that kind of ambiguity, who carries the burden of proof, and what policyholders can do when "marring" shows up in a denial letter.

What does "marring" mean?

"Marring" comes from the verb "mar." Merriam-Webster defines it as "to ruin or diminish the perfection or wholeness of : spoil," and lists an archaic sense meaning "to inflict serious bodily harm on" or "destroy." As a noun, a mar is "something that mars : blemish." Merriam-Webster, "mar".

That range is the problem. Depending on which definition you choose, "marring" can mean a surface blemish or something close to ruin. A word that can describe both a scuff and serious damage does not tell a homeowner much about what the policy actually excludes.

How Texas courts read undefined policy words

Texas has well-settled rules for interpreting insurance policies, and they cut in more than one direction. A policyholder should understand both.

Undefined does not automatically mean ambiguous

When a policy does not define a term, Texas courts give it its plain, ordinary meaning unless the policy shows the parties intended a technical meaning, and they usually start with dictionary definitions. In February 2026, the Texas Supreme Court applied those rules to hold that "windstorm," which the policy did not define, unambiguously includes a tornado. Privilege Underwriters Reciprocal Exch. v. Mankoff, No. 24-0132 (Tex. Feb. 13, 2026). The lesson is that an insured cannot win simply by pointing out that a word is undefined. Courts look for a common meaning first. In Mankoff, the Court found a common thread running through the dictionary definitions of "windstorm."

For a standard form policy, the Texas Supreme Court has also said that what counts is not the parties' actual intent but "the ordinary, everyday meaning of the words to the general public." Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006).

Read the whole policy, not one word in isolation

Courts read all parts of the policy together and try to give meaning to every sentence, clause, and word. They must also be "particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section of a contract." Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex. 1998) (quoting State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995)).

When an exclusion is genuinely ambiguous, the insured's reasonable reading wins

If policy language is subject to two or more reasonable interpretations, it is ambiguous. For exclusions, Texas applies an especially strong rule. The court "must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent." Nat'l Union Fire Ins. Co. of Pittsburgh v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). The Texas Supreme Court applied that rule in Balandran, 972 S.W.2d at 741, adopting the homeowners' reasonable reading of the policy and holding that plumbing-leak damage to the house was covered despite a foundation exclusion. Fiess restates the same principle. 202 S.W.3d at 746.

Why "marring" is a strong candidate for ambiguity

Put those rules together and "marring" becomes a real interpretive problem for insurers.

The dictionary meanings do not share one clear core. In Mankoff, the definitions of "windstorm" pointed the same way. The definitions of "mar" run from a blemish to ruin. If a reasonable reader could take "marring" to mean only minor surface blemishes, and another could take it to mean serious damage, the word is open to more than one reasonable reading.
A broad reading would swallow the coverage. A homeowners policy exists to pay for physical damage to the house. If "marring" meant any damage that spoils or impairs the property, the exclusion would reach almost every loss the policy was bought to cover. Balandran requires courts to read the policy as a whole and give effect to every part, including the insuring agreement.
Context points toward gradual, everyday blemishes. In the policy language quoted above, "marring" sits between "wear and tear" and "deterioration," which describe gradual conditions that come with age and use. Reading "marring" alongside its neighbors supports the argument that it refers to the same kind of everyday, use-related blemishing, not sudden storm damage. Texas courts read words in their surroundings (Balandran, 972 S.W.2d at 741). That is an argument, not a guarantee. Courts in other jurisdictions have split on whether "marring" should be read this way.
The word is a drafting choice. The wear-and-tear exclusion in the older Texas standard homeowners form (HO-B), as quoted in the Fiess opinions, listed "wear and tear, deterioration" and other conditions without the word "marring." An insurer that adds "marring" to its own form, and chooses not to define it, controls that wording.

I have not found a published Texas appellate decision that defines "marring" in a property insurance policy. Until one exists, the general Texas rules above will decide these disputes, and results will depend heavily on the exact policy wording and the evidence.

The insurer carries the burden on an exclusion

This is where the Texas Insurance Code matters. In a suit on an insurance contract, the insurer "has the burden of proof as to any avoidance or affirmative defense," and "[l]anguage of exclusion in the contract or an exception to coverage claimed by the insurer . . . constitutes an avoidance or an affirmative defense." Tex. Ins. Code § 554.002.

The Texas Supreme Court describes the sequence this way. The insured first proves coverage. The insurer must then prove the loss falls within an exclusion. If it does, the burden shifts back to the insured to show that an exception to the exclusion restores coverage. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 124 (Tex. 2010).

So an insurer that denies a claim as "marring" must be ready to prove that the damage fits within that word as a court will construe it. That includes the insured's reasonable construction if the word is ambiguous.

There is an important caution for policyholders. When covered and excluded causes combine, the insured must present evidence that gives the jury "a reasonable basis on which to allocate the damage." Lyons v. Millers Cas. Ins. Co. of Tex., 866 S.W.2d 597, 601 (Tex. 1993). If an insurer says part of the damage is old wear and blemishing, you need evidence that separates the storm damage from the pre-existing condition.

"Marring" versus a defined cosmetic damage exclusion

Many Texas policies now carry separate cosmetic damage exclusions or endorsements, especially for metal roofs. These usually define "cosmetic" by reference to function, meaning whether the damage lets water in or keeps the roof covering from doing its job. Courts applying Texas law have enforced that kind of defined language where the evidence showed only appearance damage. In Farris v. State Farm Lloyds, No. H-19-3872 (S.D. Tex. Feb. 4, 2021), the court granted summary judgment for the insurer where the hail left only shallow dents with no penetration or water intrusion. Courts have also held that the cosmetic-versus-functional question can be a fact issue for a jury. In Horton v. Allstate Vehicle & Prop. Ins. Co., No. 22-20533 (5th Cir. Nov. 13, 2023) (unpublished), the Fifth Circuit reversed a summary judgment because the district court did not address expert testimony that the roof had suffered functional damage.

A cosmetic damage exclusion at least tells the policyholder what the insurer means. An undefined "marring" exclusion does not. When an insurer relies on "marring" to deny hail damage, the first question to ask is simple: where in the policy does it say that? Cosmetic damage disputes that arise after an appraisal award raise separate issues, which our article on post-appraisal cosmetic damage defenses covers in detail.

Ambiguity as a claim-handling tool

Undefined terms give the drafter room to decide after the loss what the words mean. In practice, a vague exclusion can support a longer investigation, repeated inspections, and a denial that pushes the dispute toward litigation. Texas courts will eventually apply the rules above, but only after the policyholder pays for engineers, contractors, and time. Many homeowners with valid claims give up before they get there.

That is why I push back on the claim that plaintiffs' lawyers and public adjusters are the main drivers of property insurance litigation. When the drafter of a form contract keeps a word it does not define, and then uses that word to deny claims, the drafter bears real responsibility for the disputes that follow. The easiest fix is in the insurer's hands: define the term, or remove it.

What to do if "marring" appears in your denial

Get the reason in writing. If an insurer rejects a claim, its written notice must state the reasons for the rejection. Tex. Ins. Code § 542.056(c). Ask which exclusion or endorsement it relies on, and how it defines "marring."
Read the whole policy. Check the declarations page and every endorsement. A cosmetic damage endorsement changes the analysis.
Document function, not just appearance. Leaks, fractured shingle mats, broken seals, loss of granules, damaged seams, and penetrations are evidence that the damage goes beyond a blemish.
Separate old wear from new damage. Photographs from before the storm, maintenance records, and a qualified roofer's or engineer's analysis help satisfy the allocation burden under Lyons.
Watch your deadlines. Pre-suit notice requirements and limitation periods keep running while you argue about definitions.

Key takeaways

"Marring" is often undefined, and its dictionary meanings range from a minor blemish to serious damage.
Texas courts give undefined words their ordinary meaning and do not treat a term as ambiguous just because it is undefined (Mankoff, 2026).
If an exclusion is ambiguous, Texas courts must adopt the insured's reasonable reading, even if the insurer's reading seems more reasonable (Hudson Energy; Balandran).
The insurer bears the burden of proving an exclusion applies (Tex. Ins. Code § 554.002), but the insured must be ready to separate covered damage from excluded causes (Lyons).
Defined cosmetic damage exclusions turn on function versus appearance, and that is often a fact question supported by expert evidence.

If you have questions about a Texas property insurance claim, or an insurer has denied your claim as "marring" or cosmetic damage, contact The Claim Attorney for a free case review.

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