INSURANCE LAW UPDATE RECENT DECISIONS ON THE DUTY TO DEFEND. PHILIP K. MAXWELL Austin, Texas

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1 INSURANCE LAW UPDATE RECENT DECISIONS ON THE DUTY TO DEFEND PHILIP K. MAXWELL Austin, Texas State Bar of Texas 9 TH ANNUAL ADVANCED CONSUMER & COMMERCIAL LAW COURSE August 22-23, 2013 Houston CHAPTER 4

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3 PHILIP K. MAXWELL 901 S. Mopac Expressway Barton Oaks Plaza One, Suite 300 Austin, Texas Phil is a trial lawyer, adjunct professor, former Chief of the Consumer Protection Division of the Texas Attorney General s office, and former Chair and present member of the State Bar Committee on Texas Pattern Jury Charges Business, Consumer, Insurance, Employment. At the Attorney General s office and after, Phil was involved in the drafting of the Texas Deceptive Trade Practices Act and those sections of the Texas Insurance Code relating to unfair and deceptive trade practices and prompt payment of claims. Phil is co-author of Texas Consumer Litigation and several State Bar and University of Texas CLE papers on the DTPA, the Insurance Code, damages, bad faith and class actions. Texas Lawyer named Phil as one of its 100 Legal Legends for his contribution to Texas consumer law.

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5 TABLE OF CONTENTS I. Complaint seeking recovery of mental anguish must allege physical injury to trigger duty to defend under CGL II. Fifth Circuit certifies to the Texas Supreme Court questions concerning scope of contractual liability exclusion in CGL III. Cannot use extrinsic evidence in determining duty to defend IV. Complaint allegation/8 corners rule upheld despite CGL policy language we have no duty to defend suits... not covered by this endorsement V. Claim of property damage from defendant s negligent drilling of well on wrong lease was insufficient to trigger duty to defend where factual allegations were either for economic damages from having drilled a useless well or were legal conclusions or property damage rather than factual allegations VI. VII. VIII. Your work exclusion in CGL does not apply to defeat duty to defend where underlying petition claimed property damage to a part of the road work that was not alleged to be have been defectively performed by the insured Blowout Endorsement expanded coverage of CGL issued to waste well owner even without payment of additional premium Additional insured clause in CGL includes railroad for whom insured worked clearing vegetation from railroad right-of-ways, even though railroad is also alleged to be negligent in the underlying action i

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7 I. Complaint seeking recovery of mental anguish must allege physical injury to trigger duty to defend under CGL. Word bodily held to modify sickness and disease as well as injury in policy definition of personal injury thus requiring physical manifestation of mental anguish to trigger duty to defend. Body parts of deceased are not property of next of kin or estate of deceased and so allegation of damage to parts does not trigger to duty to defend under CGL property damage coverage. Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377 (Tex. 2012)(responding to certified questions of the Fifth Circuit in Evanston Ins. Co. v. Legacy of Life, Inc., 645 F.3d 739 (5 th Cir. 2011)); see also, Evanston Ins. Co. v. Legacy of Life, Inc., 487 Fed.Appx. 163, 2012 WL (5 th Cir., Aug. 24, 2012)(unpublished)(opinion after receipt of answers to certified questions) Debra Alvarez sues Legacy of Life for wrongfully disposing of her mother s remains. Debra Alvarez mother was dying of a terminal illness, when, according to her state court petition, Legacy of Life, Inc., a non-profit organ donor corporation, told her that, if Ms. Alvarez would give it consent to have her mother s organs and tissues harvested after her death, the corporation would distribute them on a non-profit basis. Alvarez gave the required consent, and entered into a contract with Legacy to donate her mother s (1) corneas and eyes; (2) her leg veins and arteries; (3) her skin; (4) her bone and associated arm tissues; (5) her leg bone and tissues and hips; and (6) her ribs and cartilage. But instead of distributing at no profit, Alvarez alleged, Legacy transferred her mother s body parts to closely related for-profit companies, which did sell them for a profit. Claiming among other things that Legacy through its related companies engaged in unconscionable business practices aimed at profiting from the vulnerability [of] family members who have recently lost a loved one, Alvarez sought to recover for her severe emotional distress and for the reasonable value of the benefits of the tissue and bones provided. Alvarez did not expressly allege that she had suffered a physical injury. 1

8 Legacy s insurer Evanston refuses to defend and files a dec action in federal court. Legacy s combined professional and general liability policy issued by Evanston provided the following coverage (boldface emphasis added): 1. Professional Liability and Claims Made Clause: To pay on behalf of the Insured all sums... which the Insured shall become legally obligated to pay as Damages... for Personal Injury arising out any act, error, or omission in professional services rendered or that should have been rendered by the Insured... arising out of the conduct of the Insured's profession General Liability and Claims Made Clause: To pay on behalf of the Insured all sums... which the Insured shall become legally obligated to pay as Damages... for Personal Injury or Property Damage... caused by an Occurrence[.] The policy defined Personal Injury as bodily injury, sickness, or disease including death resulting therefrom sustained by any person... The policy defined Property Damage as physical injury to or destruction of tangible property, including consequential loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an Occurrence. The district court held that the policy s definition of personal injury was broad enough to cover extreme mental anguish and emotional distress and that body parts were within the scope of the policy s coverage for property damage. The Fifth Circuit found Texas law unclear on both points, and certified two questions to the Texas Supreme Court. 1. Does the insurance policy provision for coverage of personal injury, defined therein as bodily injury, sickness, or disease including death resulting therefrom sustained by any person, include coverage for mental anguish, unrelated to physical damage to or disease of the plaintiff's body? 2. Does the insurance policy provision for coverage of property damage, defined therein as physical injury to or destruction of tangible property, including consequential loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed, include coverage for the underlying plaintiff's loss of use of her deceased mother's tissues, organs, bones, and body parts? The Texas Supreme Court answered no to both. 2

9 As to question 1, the court, while recognizing that Texas tort law allows recovery of mental anguish without any physical manifestations in some circumstances, held that bodily in the definition of personal injury modified injury, sickness, and disease, and, that being so, a physical manifestation is required for sickness or disease to be covered. Since Alvarez did not allege physical injury[,]... her claims against Legacy do not trigger Evanston s duty to defend under the personal injury component of its policy. As to question 2, the court, finding no definition of property in the policy, used the bundle of rights concept of property. According to the court, the common law gives next of kin the right to possess the body for burial and the right to sue for mental anguish damages when acts are performed on a decedent s body without the next of kin s consent; and that the Anatomical Gift Act gives the next of kin the right to donate tissues. But Alvarez lacked key rights in the property bundle, noted the court. She had no right to possess a body other than for burial or final disposition; to use tissues unless they have been designated by the individual as a transplant recipient; to transfer tissues other than as set forth in the Anatomical Gift Act; or to exclude other persons, except to seek damages in certain circumstances for acts done beyond their consent. Though stating that [w]e have never required a person to possess the full, unfettered bundle of property rights for a thing to be classified as their property, the court held that [i]n light of these limited rights, we cannot say that tissues have attained the status of property of the next of kin. The supreme court found the estate of a deceased person has even less rights than the surviving next of kin. Under the Anatomical Gift Act, an individual can designate a recipient for their tissues before their death, but once they die, their estate cannot designate a recipient or receive compensation for the tissues. Because we have held that tissues are not the property of next of kin, we necessarily conclude that tissues are also not the property of the estate. We answer the second certified question in the negative. II. Fifth Circuit certifies to the Texas Supreme Court questions concerning scope of contractual liability exclusion in CGL. Ewing Const. Co., Inc. v. Amerisure Ins. Co., 690 F.3d 628 (5 th Cir. 2012) The Fifth Circuit has certified two questions to the Texas Supreme Court in Ewing. The court is expected to rule in the near future. 1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific 3

10 provisions enlarging this obligation, assume liability for damages arising out of the contractor's defective work so as to trigger the Contractual Liability Exclusion. 2. If the answer to question one is Yes and the contractual liability exclusion is triggered, do the allegations in the underlying lawsuit alleging that the contractor violated its common law duty to perform the contract in a careful, workmanlike, and non-negligent manner fall within the exception to the contractual liability exclusion for liability that would exist in the absence of contract. The issue in Ewing is whether a CGL policy s contractual liability exclusion applies to an owner s suit against its own contractor for failing to perform work in a good and workmanlike manner. The Fifth Circuit issued an opinion (with one judge dissenting) holding that it did. See opinion at 684 F.3d 512. But the court then granted the motion for rehearing, withdrew its opinion, certifying the controlling questions to the Texas supreme court. Ewing had contracted with a school district to serve as general contractor on a tennis court project. Because of problems with the courts, the district sued Ewing, who then tendered the lawsuit to its insurer Amerisure for defense and indemnity, which Amerisure denied. In its withdrawn opinion, the Fifth Circuit relied on Gilbert Texas Construction, L.P. v. Underwriters at Lloyd s London, 327 S.W.3d 118 (Tex. 2010), which held that a CGL policy s contractual liability exclusion excluded coverage for property damage to an adjacent landowner where the contractor had contractually agreed to repair damages to third parties caused by construction. In its opinion certifying questions to the Texas supreme court, however, the Fifth Circuit had this to say about Gilbert: On the other hand, the liability of the contractor in Gilbert was not based on its express or implied obligation to perform its construction contract in a workmanlike manner. Rather, in Paragraph 10(b) the construction contract contained an express assumption of liability for damage to third party property; Gilbert promised to pay for or repair these damages, and if it failed to do so, the contract authorized DART to have the necessary work performed and charge the cost to Gilbert. The question in Gilbert was whether the obligation undertaken in this paragraph fell within the contractual liability exclusion. The insured argued that the exclusion did not apply because the exclusion only applied in the limited situation in which the insured has assumed the liability of another such as in a hold harmless or indemnity agreement. Id. at 125 (emphasis in original). The Gilbert court rejected this argument and accepted the underwriter's argument that if the policy was designed to only exclude assumption of liability of third 4

11 persons, it would have said so. The Gilbert court concluded that the express obligation undertaken by Gilbert amounted to an assumption of liability in a contract. In Ewing's contract with the school district, there is no similar undertaking in excess of the undertaking common to all contracts, so if Gilbert requires such additional undertakings to trigger the contractual liability exclusion, the exclusion does not apply here. If the exclusion does apply, then the parties have also raised the question of whether an exception to the exclusion applies for liability that would exist in the absence of contract. We conclude that this question, too, presents a disputed and important question of Texas law. Ewing Const. Co., Inc. v. Amerisure Ins. Co., 690 F.3d at 632 (5 th Cir.2012). III. Cannot use extrinsic evidence in determining duty to defend. Insurance application and affidavit showing insured s knowledge of certain defective parts cannot be considered to prove known loss exclusion, even if there were a limited exception that allowed extrinsic evidence that relates only to coverage and does not overlap with the issues in the underlying suit. Colony Nat l Ins. Co. v. Unique Ind. Prod. Co., 487 Fed.Appx.888, 2012 WL (5 th Cir. 2012)(unpublished) Colony s commercial general liability policy insured Unique, a seller of plumbing parts, only if the bodily injury or property damage was not, prior to the policy period, known to have occurred by the insured. After considering extrinsic evidence in the form of an affidavit and the insurance application (in which Unique said it had sold a batch of T- fittings from one manufacturer which was defective ), the district court ruled that the known loss exclusion precluded coverage and therefore there was no duty to defend or indemnify Unique in two lawsuits claiming that Unique s parts were defective. The complaints in those cases did not allege that Unique knew that other Unique products involved in the lawsuits were defective. The Fifth Circuit reversed because the complaint allegation rule limits the duty to defend analysis to the policy and the underlying plaintiff s complaint and accordingly prohibits consideration of extrinsic evidence beyond these two documents. According to the court, the only possible exception is where the extrinsic evidence relates only to coverage and does not overlap with the issues in the underlying case. Considering the affidavit and insurance application obligates accepting that Unique s products were defective and that Unique had knowledge of same, a conclusion that would be highly prejudicial to Unique s position in the [underlying] lawsuits. Therefore, the district court erred in considering the evidence. 5

12 IV. Complaint allegation/8 corners rule upheld despite CGL policy language we have no duty to defend suits... not covered by this endorsement. Policy language did not contract around the complaint allegation rule. Extrinsic evidence of purpose of trip in insured vehicle cannot be considered because of overlap with merits of negligent entrustment claim in underlying case against insured. GuideOne Specialty Mutual Ins. Co. v. Missionary Church of Disciples, 687 F.3d 676 (5 th Cir. 2012) A church member driving a vehicle owned by a church official collided with another car injuring its driver. The injured driver car sued the church, accusing the church of negligent entrustment of the vehicle. The church s policy covered non-owned autos used in connection with your business and employee-owned autos but only while used in your business or personal affairs. The policy also said that we have no duty to defend suits... not covered by this endorsement. Ruling that the duty to defend and the duty to indemnify were co-extensive under the wording of the policy and that the complaint allegation rule was therefore inapplicable, the district court considered extrinsic evidence concerning the purpose of the trip and held that the church s insurer had no duty to defend or indemnify either the church or the church member driver. The Fifth Circuit reversed, holding that the policy language did not imply that the courts must weigh evidence supporting the plaintiff s claims in the underlying suit. Because the policy says nothing about how courts should examine the allegations in the underlying proceeding when resolving GuideOne s duty to defend[,]... the language gives no reason to depart from Texas s time-honored manner of interpreting insurers duty to defend. [The court referred to, but did not discuss, its opinion in Pendergest-Holt v. Certain Underwriters at Lloyd s of London, 600 F.3d 562, 574 (5 th Cir. 2010), which declined to apply the eight-corners rule to a D&O policy provision obligating the insurer to advance defense costs until such time that it is determined that the alleged act or alleged acts [excluded by the policy] did in fact occur, holding that it is determined meant a court coverage action where all evidence was welcome. ] V. Claim of property damage from defendant s negligent drilling of well on wrong lease was insufficient to trigger duty to defend where factual 6

13 allegations were either for economic damages from having drilled a useless well or were legal conclusions or property damage rather than factual allegations. PPI Technology Services, L.P. v. Liberty Mut. Ins. Co., 2013 WL (5 th Cir. 2013)(unpublished), withdrawing and substituting opinion at 701 F.3d 1070 (5 th Cir. 2012). The lessor and working interest owners in an oil drilling operation claimed damages arising from PPI s alleged negligence in allowing a well they were paying for to be drilled on the wrong lease. The damage allegations were that PPI s negligence caused them to expend more than $4.2 million on the well and caused property damage to [the lessor] as an owner in the property where the well was being drilled including physical injury to tangible property, including all resulting loss of use of the property. Noting that the court must focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged[,] the court held there was no duty to defend because the underlying complaints contain no factual allegations of actual damage to or loss of tangible property but are instead either claims for economic damages, and thus not covered, or are legal conclusions, rather than factual allegations as required. VI. Your work exclusion in CGL does not apply to defeat duty to defend where underlying petition claimed property damage to a part of the road work that was not alleged to be have been defectively performed by the insured. Earth movement exclusion did not apply to defeat duty to defend where allegations were that road base contained man-made materials and exclusion was limited to movement of land, earth or mud. Mid-Continent Cas. Co. v. Krolczyk, S.W.3d, 2013 WL (Tex.App. Houston 1 st Dist., Aug. 15, 2013) withdrawing and substituting opinion at 2013 WL (June 6, 2013). A subdivision developer (Krolczyk) was sued by the homeowners association claiming that the road through the subdivision had failed because of the developer s faulty work. The insurer (Mid-Continent) denied a defense, relying on the your work exclusion and the earth movement exclusion in the CGL. In an interlocutory appeal following the trial court s refusal to grant either party a summary judgment, the court of appeals, relying on the 8 corners rule, held that neither exclusion applied. 7

14 The your work exclusion which excluded [p]roperty damage to... that particular part of any property that must be restored, repaired or replaced because your work was incorrectly performed on it only precludes coverage for repairing or replacing the insured s defective work. It does not exclude coverage for damage to other property resulting from the defective work. The homeowners had alleged that the pavement (which was not alleged to be defective) had failed because the developer had not reworked the road base (which was alleged to defective). The court refused to consider the road a unitary whole so that work in the exclusion would be all of the developer s work on the road. The court relied on the allegations in the complaint, which divided the project into three different phases construction of the base, providing drainage, and paving the road. The court noted that a road construction was a large project involving varied construction techniques and materials, which made it like other large projects where the your work exclusion had been limited to each part of the work. Favoring the insured in construing both the complaint and the policy, we conclude that the road project was not an indivisible whole under these allegations, but instead it was composed of several particular parts to which the [ your work ] exclusion may or may not apply. The court also refused to apply the earth movement exclusion which excludes property damage [that is]... related to movement of land, earth or mud because the homeowners petition did not allege that the washed-out base was built of land, earth, or mud, but rather was made of man-made materials, like washed concrete. Said the court: When the allegations in the pleadings do not state facts sufficient to clearly bring the case within or without the coverage, the insurer is obligated to defend as long as there is potentially a covered claim under the pleadings. As the road base could have been built of materials other than earth, land, or mud, and the allegations do not mention any other earth movement, the allegations do not clearly establish that the exclusion does or does not apply. VII. Blowout Endorsement expanded coverage of CGL issued to waste well owner even without payment of additional premium. Blowout Endorsement superseded conflicting Total Pollution Exclusion and the Mold Exclusion in the Oil and Gas Endorsement. Liberal construction of underlying plaintiffs general allegations of damage to their property included above-surface damage as required by Blowout Endorsement. Central Surety Co. v. DeLoach, 2013 WL (Tex. App. Corpus Christi, August 1, 2013)(mem.)(unpublished). Four area landowners sued DeLoach, a waste well owner, claiming variously that underground pressure from a sinkhole at waste well site had caused deleterious substances 8

15 to flow over, encroach upon, and to penetrate groundwater under their property. When presented with the suits, DeLoach s CGL carrier, Central Surety sent a reservation of rights citing the pollution exclusion and the oil and gas endorsement and DeLoach filed suit to determine coverage. Century and DeLoach agreed that, if applicable, the Pollution Exclusion excluded the underlying lawsuits from coverage. However, DeLoach argued that the Pollution Exclusion would render the Blowout Endorsement illusory and that the Blowout Endorsement superseded the Pollution Exclusion because of the coverage conflict. DeLoach based his argument upon the presumption that the Blowout Endorsement expanded the coverage within the CGL. Century disagreed, arguing that the Blowout Endorsement did not expand coverage, but modified and limited the coverage of the CGLP. The court concluded that the Blowout Endorsement expanded coverage rather than limiting existing coverage, noting that its first full paragraph stated, [t]he following provisions are added with respect to property damage included within the blowout & cratering hazard arising out of the operations performed by you or on your behalf. Said the court: Thus, the express language in the Blowout Endorsement indicated that the purpose of the endorsement was to add coverage for a blowout and cratering hazard. Century countered that the Blowout Endorsement could not be considered as expanding coverage because DeLoach did not pay an additional premium. The court disagreed as there was no proof Century asked or required DeLoach to pay a separate premium for the Blowout Endorsement. Century argued that the Pollution Exclusion and Blowout Endorsement did not conflict because [d]irect physical damage to persons or property may occur without any pollution. The Pollution Exclusion stated that [t]his insurance does not apply to:... property damage which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants' at any time. The Blowout Endorsement stated that a Blowout & Cratering Hazard includes property damage to any of the following: a. Any property damage... due to a blowout [i.e.] the earth arising out of or consequence of the uncontrolled flow of gas or fluids from a well, wellhead or borehole; b. Any property damage... due to cratering, [i.e.] the earth arising out of or a consequence of subsidence, depression, erosion, or expulsion of the earth's surface around or adjacent to a well, wellhead or borehole cause by the erosive or eruptive action of gas or fluids flowing to the surface. 9

16 The court concluded that there was a conflict between the two endorsements because it could not imagine an occurrence covered by the Blowout Endorsement arising without pollution as defined in the Pollution Endorsement. For the same reason the court found a conflict with the mold exclusion in the Oil and Gas Endorsement. Excluded under that provision was property damage arising out of, caused by, or alleged to be contributed to in any way by the toxic or hazardous properties of minerals or other substances. Said the court: As with the pollutants in the Pollution Exclusion, it seems unlikely that a blowout could occur in the absence of the release of toxic or hazardous property of minerals or other substances. The court also rejected Century s argument that two of the four suits only alleged groundwater damage and that the Blowout Endorsement was limited to surface damage. Noting that in a duty to defend case the court must liberally construe the pleadings in favor of the insured, and that an insurer has the duty to defend both covered and uncovered claims, the court said: [T]the City of Daisetta's petition also alleges that its [p]roperty was detrimentally affected as the direct result of contaminants encroaching upon its property from an uncontrolled surface and that the enjoyment and use of [its] property had been adversely impacted to such a degree that the value of the property in its current condition is negligible. Similarly, the Arceneaux plaintiffs allege that their use and enjoyment of their property in its current condition is negligible at best. These allegations, liberally construed, arguably reference both the above- and below-ground use, and resulting value, of their properties, and because we must construe the allegations against the insured and resolve any doubts in favor of coverage, we conclude that the City of Daisetta and Arceneaux plaintiffs alleged above-ground property damage that is potentially covered by DeLoach's policy and therefore triggers Century's duty to defend. And because there is a potential for coverage for a portion of these suits, Century has a duty to defend DeLoach against the entire suit. VIII. Additional insured clause in CGL includes railroad for whom insured worked clearing vegetation from railroad right-of-ways, even though railroad is also alleged to be negligent in the underlying action. Completed operations exclusion does not defeat duty to defend where a reasonable reading of pleadings is that insured had not properly completed vegetation control. Fact questions precluded summary judgment for insurer on duty to indemnify. 10

17 Burlington Northern and Santa Fe Ry. Co. v. National Union Fire Ins. Co. of Pittsburgh, PA, 394 S.W.3d 228 (Tex.App.-El Paso 2012, pet. filed Dec. 14, 2012) Burlington sued National Union after it refused the railroad's claims for defense and indemnity for liability arising out of a railroad crossing accident where two people were killed and a third was injured. The decedents' families sued the railroad alleging, in part, that the collision was caused by the railroad's failure to properly maintain the vegetation at the crossing. Burlington settled one of the cases, and the second resulted in a multi-million dollar jury verdict. Burlington sued as an additional insured under a CGL issued to SSI Mobley with whom Burlington had contracted for vegetation control on its right of ways. The trial court granted summary judgment to National Union on the duty to defend and indemnify. In its initial opinion, the court of appeals affirmed, ruling (a) there was no duty to defend because the plaintiffs allegations relating to SSI Mobley were in the past tense indicating its work was complete and thus excluded under the completed operations exclusion; and (b) for the same reason there was no duty to indemnify and there was no reason to consider extrinsic evidence on the issue. 334 S.W.3d 235 (Tex. App. El Paso 2009). The supreme court reversed, holding that the court erred in not considering extrinsic evidence on the duty to indemnify, and remanded the case to the court of appeals. 334 S.W. 217 (Tex. 2011). Though the case was remanded to reconsider the duty to indemnify ruling, the court of appeals reconsidered its holding on the duty to defend as well. First, the court disposed of the argument that Burlington was not an additional insured because the underlying plaintiffs had alleged Burlington s fault. The additional insured endorsement included liability arising from the named insured s work but exclud[ed] any negligent acts committed by such additional insured. The court rejected this contention, relying on the allegations accusing SSI Mobley of negligence in controlling vegetation and quoting Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc, 256 S.W.3d 660, (Tex. 2008), which dealt with a similar endorsement: the particular attribution of fault between insured and additional insured does not change the outcome. Next, the court turned to the Products Completed Operations Hazard, which stated that [t]his insurance does not apply to bodily injury or property damage arising out of the products-completed operations hazard, defined as all off-premises work of the named insured, except [w]ork that has not been completed. Work was deemed completed at the earliest of when: (1) all work called for in [insured s] contract has been completed ; (2) all work to be done at the site has been completed if [the] contract calls for work at more than one site; (3) that part of the work done at a job site has been put to its intended use

18 The court recanted using as it had in its first opinion--past tense allegations in the underlying pleading as determinative that the operations were, in fact, completed. [U]se of the past tense in drafting allegations... is not particularly unusual given that a petition is rarely, if ever, drafted contemporaneously with the events described in the petition. The court then noted that the three deemed completed dates in the policy required referring to the contract, which the extrinsic evidence rule kept from the court s consideration. In light of that restriction, we do not know whether work was completed on a site by site basis, regardless of the status of the work at other locations or whether work was completed when the site was put to its intended use. The court then reviewed the plaintiff s pleading that SSI Mobley had failed to use reasonable care in controlling the vegetation around the railroad crossing, which the court said was [e]ssentially... alleg[ing] that the application of chemical weed control by SSI Mobley was insufficient or not properly completed such that excessive vegetation at the site at the time of the collision was a proximate cause of the collision[,] and which, as a reasonable reading of the pleadings, made the completed operations exclusion inapplicable. Having found a duty to defend, the court then reviewed the summary judgment evidence on the duty to indemnify, finding fact issues precluded summary judgment on this issue. 12