IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11194
WESTERN ALLIANCE INSURANCE COMPANY,
Plaintiff-Appellee,
versus
NORTHERN INSURANCE COMPANY OF NEW YORK,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
May 20, 1999
Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellee Western Alliance Insurance Company
(Western) brought this equitable subrogation action against
defendant-appellant Northern Insurance Company (Northern) seeking
reimbursement of proceeds Western paid to its insured on a
liability policy it asserts was excess to Northern’s policy
obligations. The district court granted Western’s motion for
summary judgment, and Northern appeals. We vacate and remand for
the limited purpose of clarifying an evidentiary defect, and for
further proceedings consistent herewith.
Facts and Proceedings Below
On October 7, 1991, a fire in a Dallas, Texas, house killed
five people. At the time of the accident, the building was owned
by the Federal Deposit Insurance Corporation (FDIC) and rented to
tenants who lived there. The FDIC had contracted with C.W. Sparks
(Sparks) to manage the building. Sparks had two solely-owned
proprietorships/DBAs: Sparks Management Company and Southern
Building Restoration. Only the former was mentioned in the
contract between Sparks and the FDIC. After the fire, the
survivors sued Sparks in state court, alleging that he was
negligent in not installing smoke alarms in the building and in
installing a water heater.
At the time the state suit was commenced, three insurance
policies were potentially implicated by the suit. Northern
provided the FDIC with two policies providing liability coverage
applicable to the property, each of which included as additional
insured “any person or organization while acting on your behalf as
a real estate manager.” The primary Northern policy had a policy
limit of $1,000,000, while its umbrella policy had a $10,000,000
limit. Western provided liability insurance to Sparks and both of
his sole proprietorships in a single policy. The Western policy
had a limit of $500,000, and also contained a clause making the
policy excess to any other insurance policy for liability arising
2
out of Sparks’ management of property as a real estate manager.
Northern concedes that for liability stemming from Sparks’ real
estate management activities on behalf of the FDIC, it was the
primary insurer.
Western defended Sparks in the underlying lawsuit, but it
formally demanded that Northern conduct the defense, arguing that
Northern owed Sparks a duty to defend and that Western’s policy was
excess to Northern’s obligation. In response, Northern did not
unequivocally decline coverage to Sparks. Instead, it asked for
more time to study the matter. In March 1992 Sparks informed
Western that the plaintiffs in the underlying lawsuit had expressed
a willingness to settle their claims for $525,000. After
negotiations between Western and Northern, Western tendered its
policy limits of $500,000 to settle the underlying suit, and
Northern added an additional $25,000. Northern and Western agreed
that they would mediate their dispute over coverage of the Sparks
settlement after the conclusion of litigation against the FDIC,
which the plaintiffs had indicated they would pursue following
settlement.
On March 24, 1992, the plaintiffs in the underlying lawsuit
released Sparks and his sole proprietorships from any liability
stemming from the fire. Immediately following the settlement, the
plaintiffs amended their complaint to name the FDIC, rather than
Sparks, as the defendant. Northern defended the FDIC in the
continued litigation, and had the case removed to federal court. On
3
December 30, 1993, the FDIC settled with the plaintiffs. Pursuant
to this settlement, Northern paid out an amount in excess of its
$1,000,000 primary policy limit.
Mediation between Northern and Western to determine liability
for the $525,000 Sparks settlement was unsuccessful, and Western
brought the current action against Northern in state court on
February 23, 1996. Northern had the action removed to the Northern
District of Texas on diversity grounds. Northern moved for summary
judgment, and Western moved for partial summary judgment on the
question of breach of the duty to indemnify. The district court
granted summary judgment to Western and awarded it the $500,000
Western expended in the Sparks settlement, plus pre- and post-
judgment interest thereon. See Western Alliance Insurance Co. v.
Northern Insurance Co. of New York, 968 F.Supp. 1162 (N.D. Tex.
1997). Thereafter, Western dropped its duty to defend claim,
making the partial summary judgment final. This appeal followed.
Discussion
We review a district court’s grant of summary judgment
employing the same standard as that the district court is required
to apply. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th
Cir. 1995). Summary judgment is appropriate when the movant
identifies undisputed material facts that would entitle it to
judgment as a matter of law, and the non moving party is unable to
point to evidence that creates a genuine issue of material fact.
4
In reviewing the record, we must view all facts in the light most
favorable to the non-movant, and review issues of law de novo. See
id.
I. Statute of Limitations and Exhaustion of the Policy
Northern argues that the statute of limitations bars Western’s
action. Since Western has dropped its breach of contract action
based on the duty to defend, the relevant limitations inquiry is
whether the current action was filed within four years of
Northern’s breach of the duty to indemnify. The duty to indemnify
may be justiciable in a declaratory judgment action before a
determination of the insured’s underlying liability if the
complaint does not trigger the duty to defend and no facts can be
developed in the underlying suit that could trigger the duty to
indemnify. See Farmers Texas County Mutual Insurance Co. v.
Griffin, 955 S.W.2d 81, 84 (Tex. 1997). It does not follow,
however, that every breach of the duty to defend automatically
breaches the duty to indemnify and begins the running of the
statute of limitations on the latter. A clear breach of the duty
to defend might perhaps constitute an anticipatory breach of the
duty to indemnify, but here Northern never definitively stated that
it would not defend Sparks. Instead, it continually asked for more
time to examine the situation and strung both its insured and
Western along. There is no indication that either Sparks or
Western regarded or treated these delaying tactics as a breach of
5
the duty to indemnify. That duty was breached, if it was breached
at all, when Northern declined to tender the full settlement amount
to its insured Sparks on March 24, 1992. We find, as did the
district court, that since the current action was filed on February
23, 1996, within four years of the breach of the duty to indemnify,
the action was not barred by the statute of limitations.
Northern also claims that it is entitled to summary judgment
on the grounds that, having exhausted the limits of its primary
policy in its December 30, 1993, settlement on behalf of the FDIC,
it has no further duty to indemnify Sparks. Northern’s policies
clearly indicated that it had no further obligations under their
terms once the relevant policy limits were exhausted. The FDIC
settlement exceeded the $1,000,000 limit on the primary policy, and
Northern argues that its umbrella policy was excess to Western’s
policy. Western in substance concedes that Northern’s umbrella
policy is excess to Western’s policy. Thus, we disregard the
umbrella policy. We have recently held that under Texas law an
insurer may favor one of its insureds (who had been sued) over
another insured party (who had not been sued), and thus may exhaust
policy limits on behalf of one insured despite the fact that such
a settlement leaves its remaining insureds without protection under
the policy. See Travelers Indemnity Company v. Citgo Petroleum
Corp., 166 F.3d 761, 768 (5th Cir. 1999). See also American States
Insurance Co. of Texas v. Arnold, 930 S.W.2d 196 (Tex. App.--Dallas
6
1996, writ denied).
However, in Citgo we faced a situation in which an insurer
settled on behalf of one of its insureds, who had been sued, before
the other insured party had been named in the action. Here, in
contrast, we face the reverse problem. Northern, having struck an
agreement deferring resolution of its duty to indemnify Sparks
before the FDIC was named in the suit, now claims that its
subsequent decision to exhaust settlement limits in settling on
behalf of the FDIC mooted any liability it might have incurred by
not immediately fulfilling its duty to indemnify Sparks. This
argument fails. Under Citgo, Northern was entitled to settle on
behalf of Sparks and exhaust policy limits on his behalf. It
perhaps might have been entitled to settle on behalf of the FDIC
and exhaust policy limits had the FDIC been a party to the action
at the time of the Sparks settlement. However, at that time
Sparks was the only insured party named in the action, and the
primary policy limits were not exhausted. If the facts were
sufficient to trigger the duty to indemnify, that duty included the
immediate payment of a settlement of up to $1,000,000. Northern’s
decision to subsequently expend the policy limits on behalf of the
FDIC cannot alter the fact that it may be liable to Sparks for the
full value of a settlement within policy limits. Under the facts
of this case, we hold that the exhaustion of Northern’s primary
policy liability in a subsequent proceeding could not serve to
7
excuse Northern’s asserted earlier breach of its duty to indemnify.
II. Breach of the Duty to Indemnify
Northern’s policy included, as an additional insured, any
person or organization acting as a real estate manager for the
FDIC. Northern concedes that its $1,000,000 policy provided
primary coverage for Sparks to the extent his liability arose from
real estate management activity on behalf of the FDIC. However, it
contends that neither the live state court petition (the third
amended petition) at the time of the March 1992 settlement of the
suit against Sparks nor the facts were sufficient to demonstrate
that Sparks’ liability arose from covered management activity.
First, Northern contends that the version of the complaint in the
record before us contained insufficient factual allegations to
trigger its duty to defend Sparks, and that no duty to indemnify
can attach when there was no duty to defend at the time of
settlement. Second, Northern argues that there was insufficient
factual evidence in the record of Sparks acting as a real estate
manager at the time of the accident to justify summary judgment.
Even if an insurer breaches the broad duty to defend, it is not in
all respects estopped from challenging the duty to indemnify, and
the duty to indemnify may turn on the facts in the underlying
lawsuit, not the allegations of the complaint. See Enserch Corp.
v. Shand Morahan & Co., Inc., 952 F.2d 1485, 1493 (5th Cir. 1992).
After a review of the record, we conclude that summary judgment on
8
the question of the duty to indemnify was inappropriate, but only
because of the apparent accidental omission in the record before us
of several pages from the plaintiff’s third amended petition in the
Sparks suit—the live pleading in that suit when the Sparks
settlement was made in March 1992. If, on remand, it is determined
that this third amended petition does not deviate materially in
respect to Sparks from the complete versions of the second amended
and fourth amended petitions in that suit that are in the record
before us, Western will be entitled to summary judgment.
A. The allegations in the petition
Northern’s brief can be read to argue that the third amended
complaint, the live pleading at the time of settlement, did not
trigger the duty to defend, and thus Northern could not owe a duty
to indemnify. Under Texas law, the eight corners rule generally
triggers a duty to defend whenever liability sought to be imposed
by a petition is even potentially covered by the policy. See
Enserch Corp., 952 F.2d at 1492; Heyden Newport Chem. Corp. v.
Southern General Ins. Co., 387 S.W.2d 22, 24-26 (Tex. 1965). In
Texas, the duties to defend and indemnify are separate duties
creating separate causes of action. See, e.g., American Alliance
Insurance Co. v. Frito-Lay, Inc., 788 S.W.2d 152, 153 (Tex. App.--
Dallas 1990, writ dism’d) (reversing injunction on insurer’s
declaratory judgment action for a determination of duty to
indemnify in New York court granted on the grounds that Texas suit
9
for breach of duty to defend involved the same cause of action).
The duty to defend, which rests on allegations, is broader than the
duty to indemnify, which can only be created by actual facts.
Language in some cases can be read to indicate that if the live
pleading at the time a determination of the duty to indemnify is
sought did not trigger the duty to defend, no duty to indemnify can
be found. See, e.g., Farmers Texas County Mutual Ins. Co. v.
Griffin, 955 S.W.2d 81, 82-83 (Tex. 1997). Thus, even though
Western has dropped its duty to defend claim on appeal, a finding
that no duty to defend existed at the time of settlement might
foreclose a finding of a breach of the duty to indemnify. See
Reser v. State Farm Fire & Casualty Co., 981 S.W.2d 260, 264 (Tex.
App.--San Antonio 1998, no writ) (finding deletion of only covered
claim from counterclaim complaint prior to settlement terminated
duty to defend and also foreclosed insurer’s duty to indemnify).
Northern’s argument in this respect seems to rest on an
unexplained and apparently avoidable and accidental defect in the
record before this Court. The plaintiffs’ theory throughout the
Sparks litigation, as evidenced by the fact section of the second
amended and fourth amended petitions in the Sparks case that are
complete in the record before us, was that the FDIC placed
financial restrictions on Sparks in handling the water heater
problem, and that Sparks breached his duty of care by hiring an
uncertified handyman and not supervising the handyman, who
10
installed a used water heater and attempted to deal with a poor
connection to the building’s gas lines with duct tape. However,
the copy of the plaintiffs’ third amended petition in the Sparks
case as contained in the record before us is missing three pages
(it goes from its numbered page 3 to its numbered page 7, and its
wording also makes obvious that page 7 does not immediately follow
page 3). Assuming that the third amended petition followed the
format of the other petitions, these pages were the ones that
contained the plaintiffs’ factual allegations. The incomplete
third amended petition in our possession alleges only that Sparks
was negligent in installing a water heater. Nowhere does it
indicate that Sparks worked for the FDIC as a building manager, or
set forth the factual background to Sparks’ alleged negligence.
We note, however, that Northern failed to argue that the
allegations in a complete copy of the third amended petition
diverged in any material way from those in the other petitions, or
to complain that the district court made its judgment on the basis
of an incomplete copy like the one before us. Indeed, at oral
argument counsel for Northern indicated that any defect in the
record was not relevant to our inquiry. Accordingly, we believe it
is highly probable that a complete copy of the third amended
petition exists that contains factual allegations similar to those
in the other versions of the petition. We believe the prudent
course of action is to remand for a clarification on this point,
rather than proceed to determine Northern’s duty to defend based on
11
the fragmentary evidence before us.
In the interest of judicial economy, we note that the second
amended petition (and the fourth) alleged that Sparks was acting as
a building manager for the FDIC and in this capacity hired an
uncertified handyman rather than a professional to install a water
heater in the building. It also alleges that Sparks never set foot
in the building, and thus asserts that he did not oversee the
handyman’s negligent installation or inspect the building’s
dysfunctional smoke detectors. These allegations were sufficient
to trigger the duty to defend under Northern’s policy, and a
complete copy of the third complaint containing similar factual
allegations would foreclose Northern’s argument that the duty to
defend was absent and thus indemnification is inappropriate.
B. Facts triggering the duty to indemnify
Assuming Northern breached its duty to defend, it may still
challenge indemnification. If an insurer breaches the duty to
defend, it may not contest a determination that its insured was
liable in the underlying settlement or verdict (or the amount of
either). It remains free, however, to argue that the assumed
liability was not in actuality covered under its policy, and thus
no duty to indemnify arises. See Employers Casualty Company v.
Block, 744 S.W.2d 940, 943 (Tex. 1988), overruled on other grounds
by State Farm Fire and Casualty Co. v. Gandy, 925 S.W.2d 696, 714
(Tex. 1996); Hartford Casualty Co. v. Cruse, 938 F.2d 601, 605 (5th
12
Cir. 1991); Enserch Corp., 952 F.2d at 1493. The insured bears the
burden of proving coverage, and to demonstrate a duty to indemnify
it must present facts sufficient to demonstrate coverage. See Data
Specialties, Inc. v. Transcontinental Insurance Co., 125 F.3d 909,
911 (5th Cir. 1997); Block, 744 S.W.2d at 944.
Here, Northern argues that Western has failed to meet its
burden of introducing facts demonstrating that Sparks was covered
by Northern’s policy. Unable to contest Sparks’ liability, they
argue that no facts in the record indicate the manner in which
Sparks’ liability arose. Specifically, they argue that nothing
indicated that Sparks’ liability arose from his real estate
management activity, which is a necessary precondition to
coverage.1 Western first responds by claiming that the factual
scenario outlined in the plaintiff’s petition clearly indicates
that at the time in question Sparks was engaged in real estate
management activity for the FDIC respecting the building. This is
correct but not of itself sufficient. The duty to indemnify
requires facts, and factual allegations in a petition do not
necessarily all become facts merely because of a settlement of the
suit. In Block, the court refused to find facts indicating
coverage that were recited in a settlement agreement dispositive on
1
Western maintains that this argument has been waived. While
Northern’s misguided focus on meritless claims that Sparks and his
sole proprietorships are distinct legal entities obfuscated the
issue, we are satisfied that Northern raised the issue below.
13
the duty to indemnify. See Block, 744 S.W.2d at 943. The court
affirmed on the grounds that uncontroverted testimony demonstrated
that the plaintiff had carried its burden of proving coverage. Id.
at 944. Here, we do not even have an attempt to embed the relevant
facts in the settlement agreement—we have only the allegations made
in the underlying petitions. These allegations do not constitute
facts for the purpose of establishing coverage under Northern’s
policy.
Nevertheless, the limited facts in the record support the
district court’s grant of summary judgment for Western. The fact
that Sparks was managing the house on behalf of the FDIC at the
time of the requisition and installation of the water heater and
the fire is uncontested on appeal, and Northern has conceded that
Sparks is covered under the policy for his real estate management
activities. In its answer to Western’s complaint, Northern did not
contest Western’s position that the fire—and thus Sparks’
settlement liability—was traceable to the recent acquisition and
installation of a defective water heater. Because of the posture
of the case, we can also assume that Sparks’ negligence caused the
fire—if Northern breached its duty to defend, it cannot challenge
Sparks’ liability. The question then becomes whether we can assume
from these facts that Sparks’ liability arose from his “acting as
a real estate manager,” which would bring him within Northern’s
policy.
14
Curiously, the parties do not explore cases construing “real
estate manager” language in insurance policies. We were unable to
discover any relevant published Texas cases. However, other
jurisdictions have construed similar policy language. These cases
have generally looked to see whether the entity claiming additional
insured status by virtue of a similar clause undertook its claimed
real estate management activity primarily in order to benefit the
named insured—thus entitling it to coverage—or in pursuit of its
own interests. Thus a hotel cannot claim coverage under a policy
issued to an organization it was hosting, since its provision of
oversight and security on the premises was driven by its financial
interest in satisfying customers and its statutory duties to
protect its guests. See Insurance Co. of North America v. Hilton
Hotel U.S.A., Inc., 908 F.Supp. 809, 817 (D. Nevada 1995). See
also California Union Insurance Co. v. City of Walnut Grove, 857
F.Supp. 515, 522 (S.D. Miss. 1994) (City, as lessor of property,
was not real estate manager for tenant despite performing some
maintenance work—any work was done to further its own interests as
owner). Similarly, a tenant in possession cannot seek shelter
under such an additional insured clause in his landlord’s policy
merely because the tenant undertook some maintenance work on the
property. See Jackson v. East Baton Rouge Parish School Board, 348
So.2d 739, 741 (La. App. 1st Cir. 1977) (while state entity using
space in a Parish school building may have undertaken management
15
tasks, “it did so to serve its own purposes and not acting as a
real estate manager for the name[d] insured”); Savoy v. Action
Products Co., Inc., 324 So.2d 921, 923 (La. App. 3d Cir. 1975)
(stressing that ordinary meaning of manager implies action on
behalf of another and not oneself, and any action tenant took that
might be construed as managing property was merely fulfilling the
tenant’s own legal obligations). However, when an entity
undertakes management activity solely or primarily on behalf of
others, and it owes duties to the property which derive from the
duties owed to or by those it serves, it may claim coverage under
such a policy. See Fireman’s Fund Insurance Co. v. Vordemeier, 415
So.2d 1347, 1349-50 (Fla. 4th DCA 1982) (in negligence action
arising from child’s fall from window, receiver appointed to manage
property was covered under policy since he was managing property on
behalf of named insured as well as creditors). See also First
National Bank of Palmerton v. Motor Club of America Insurance Co.,
798 A.2d 69, 72-73 (N.J. App. Div. 1997) (mortgagee in possession
benefitted mortgagor through continued operation and maintenance
and thus could claim coverage as a manager).
Here, as Northern has conceded, Sparks was a real estate
manager for the FDIC, the named insured and owner of the house.
Under the logic of the above cases, he may claim coverage under the
policy for any action he took in pursuit of the FDIC’s legal or
economic interests. Under Texas law, the FDIC has a duty to make
16
diligent efforts to repair or remedy conditions that materially
affect the health or safety of tenants after a request has been
received. See Tex. Prop. Code Ann. § 92.052 (Vernon 1995). In any
event, it is clear beyond question that as a landlord the FDIC had
an economic interest in satisfying tenants and insuring the
building was attractive to potential tenants. Obviously, the
provision, or continued provision, of hot water to tenants was in
the FDIC’s economic interest. Northern does not dispute that the
fire stemmed from the installation of a water heater, presumably in
pursuit of the FDIC’s economic and/or legal interests.
To the extent that Sparks had any connection to the building’s
water heater at all—and we must assume he did since we must assume
his causative negligence—it may properly be inferred to have arisen
from his action or inaction in performance of the FDIC’s duties or
interests respecting the water heater. As the FDIC’s agent, Sparks
was charged with the execution of its duties and the furtherance of
its interests respecting its tenants. And in carrying out this
charge, Sparks undertook to offer services that he should have
recognized had to be carefully performed for the protection of
third persons—the tenants. Accordingly, he may be held liable for
physical harm to the tenants that arises out of his failure to
exercise reasonable care in performing the landlord’s role. Cf.
Restatement (Second) of Torts §324A (1977); Seay v. Travelers
Indem. Co., 730 S.W.2d 774, 777 (Tex. App.--Dallas 1987, no writ)
17
(section 324A is the law in Texas); Rao v. Rodriguez, 923 S.W.2d
176, 180 (Tex. App.--Beaumont 1996, no writ) (property manager
could be held liable for failure to install smoke detectors despite
fact statute insulated landlord from liability in absence of tenant
complaint). We do not have facts that precisely indicate how
Sparks was negligent. He might have negligently hired and
supervised another party who actually selected or installed the
water heater, which apparently was the plaintiffs’ theory in the
underlying lawsuit. Or he might have picked out and installed the
unit himself. For our purposes, it does not matter. The point is
that any action Sparks took can be properly inferred to have been
taken in his agency capacity to benefit the named
insured—fulfilling its statutory duties and/or pleasing its tenants
or otherwise furthering its interests.
Northern argues, however, that Sparks’ liability could also
have arisen from another source, one that would not trigger
coverage under its policy. Most of Northern’s argument rests on
its reliance on legally irrelevant distinctions between Sparks and
his sole proprietorships.2 To the extent that it does not, we find
2
In its briefs, as it did below, Northern maintained that the
key to the question was not the language of the policy regarding
the character of the activity, but whether Sparks himself, or one
of Sparks’ sole-proprietorships—and if so, which one—could be
considered as having done the water heater work. We agree with the
court below that the legal status of sole proprietorships in Texas
makes this question irrelevant. Sparks could be held liable in his
personal capacity for conduct nominally pursued under the flag of
his sole proprietorship, and thus insurance coverage of Sparks, or
of one of his d/b/a’s, necessarily covered any suit against any of
18
that a genuine issue of fact has not been created. Western was not
required to introduce facts disproving every theoretically possible
scenario under which Sparks could become liable—it was not required
to show affirmatively that Sparks did not undertake water heater
maintenance in a recreational capacity. On a motion for summary
judgment, the movant bears the burden of introducing evidence
which, if uncontroverted, would entitle the movant to judgment as
a matter of law. By introducing uncontroverted evidence that, at
all relevant times, the FDIC owned the building, Sparks was its
real estate manager for the building, and the fire, a cause of
which must be assumed to be Sparks’ negligence, arose from a water
heater that was defective and defectively installed there, Western
met its burden in this connection. At this point, the burden
shifted to Northern to point to specific evidence demonstrating a
genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 106
S.Ct. 2505, 2511 (1986).
While Northern argues that Sparks’ liability might be traced
to an action outside the scope of real estate management, it does
not direct our attention to any specific facts that call into
question whether Sparks performed his actions in fulfillment of the
his sole proprietorships if the character of the conduct brought it
within the policy. See Warehouse Partners v. Gardner, 910 S.W.2d
19, 24 (Tex. App.--Dallas 1995, writ denied). Which d/b/a hat
Sparks purportedly was wearing at a given time simply does not
control the coverage analysis. It is thus unnecessary to consider
apportionment of the settlement amount between assertedly different
Sparks “entities.”
19
FDIC’s duties or interests and not his own separate interests. It
does not even assert that, for example, Sparks was not granted the
authority to install water heaters by the FDIC and thus was acting
wholly outside the scope of his agency. And it fails even to
suggest any alternative theory of Sparks’ assumed liability that
would place it outside the ambit of duties performed on behalf of
the FDIC, let alone provide factual support for such a theory. The
best it can do in this regard is to argue that Sparks—who judging
by the names of his sole proprietorships had a restoration business
that was separate from his management business—may have been
engaging in installation activity beyond the scope of a typical
building manager’s duty. While it is possible that a manager might
hire a contractor to move and hook up a water heater, the fact that
Sparks may have chosen not to do so does not alter the fact that
the task was undertaken on behalf of the FDIC and that it was
within the building manager’s authority. It was thus presumptively
at least in part a building management activity. There is no
factual allegation suggesting otherwise. We conclude that the
district court did not err in holding that the record properly
supported summary judgment for Western (subject only to
clarification regarding the third amended petition’s missing
pages).
Conclusion
On this record, we cannot be absolutely sure that the third
20
amended petition triggered Northern’s duty to defend and thus that
Northern owed a duty to indemnify. Since we expect that this
matter can easily be cleared up below, we remand for a
determination of the contents of the third amended petition’s
missing pages. If the contents of these pages do not deviate
materially from the above-referenced factual allegations contained
in the second amended petition, Western is entitled to summary
judgment on all issues.
VACATED and REMANDED with instructions
21