* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-50801

Summary Calendar

____________________

ESSEX INSURANCE COMPANY,

Plaintiff-Counter DefendantAppellee,

v.

LAMPASAS GOLF ASSOCIATION, 

INC, ET AL,

Defendants-Counter Plaintiffs

MORRIS L ELLIS,

Defendant-Counter PlaintiffAppellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-97-CV-61)

_________________________________________________________________

August 10, 1998

Before KING, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellee Essex Insurance Company, Inc. sought

declaratory judgment regarding its duties to defend and indemnify
1 Additionally, the Wootens alleged intentional invasion

of privacy, harassment, assault, and an unlawful taking of

property under the Texas and U.S. constitutions. Because Ellis

does not raise any issue on appeal as to these allegations, we

limit our review to the allegations mentioned above.

2

defendant-appellant Morris L. Ellis and another party. The

district court granted summary judgment in favor of Essex

Insurance Company, Inc. Ellis appeals from this judgment. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 1994, Lampasas Golf Association, Inc. (LGA) and

the City of Lampasas were involved in the expansion of a

municipal golf course. In furtherance of this project, LGA

representatives allegedly cut down and removed trees and brush 

from Warren and Mona Wooten’s property, without their permission. 

Consequently, the Wootens filed suit against LGA, Morris L.

Ellis, and others (collectively, Defendants). In the Wootens’

Third Amended Original Petition, they alleged mental anguish,

emotional distress, loss of use of property, and property damage

resulting from intentional tortious conduct, including, inter

alia, trespass and conversion.1 Alternatively, the Wootens

alleged that Defendants’ negligent conduct proximately caused

their injuries. 

LGA and Ellis notified their insurance provider, Essex

Insurance Company, Inc. (Essex) of the suit and made a demand for

defense and indemnification. Essex refused, claiming that the
3

conduct alleged in the Wootens’ complaint was outside the scope

of coverage provided by LGA’s insurance policy with Essex (the

Policy). The Policy is a Commercial General Liability (CGL)

policy covering both LGA and Ellis in his capacity as an

executive officer of LGA. 

In January 1997, Essex filed a declaratory judgment action

against LGA and Ellis in federal district court based on

diversity of citizenship under the Federal Declaratory Judgment

Act, 28 U.S.C. § 2201. Specifically, Essex sought a declaration

that it owed no duty to defend or indemnify either LGA or Ellis

from the Wooten claims in the underlying state court action. LGA

and Ellis counterclaimed for declaratory relief and attorney’s

fees. Thereafter, the parties filed cross-motions for summary

judgment. 

On August 8, 1997, the district court, applying Texas law,

granted Essex’s motion (and denied Ellis’s motion) for summary

judgment, holding that Essex owed no duty to defend or indemnify

either LGA or Ellis in the Wooten suit. Ellis subsequently filed

a motion to vacate, alter, or amend the judgment. The district

court partially granted the motion, amending its judgment to

apply only to the allegations of the Wootens’ Third Amended

Original Petition. Ellis now appeals the amended judgment.

II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying
4

the same criteria used by the district court in the first

instance. See Texas Med. Ass’n v. Aetna Life Ins. Co., 80 F.3d

153, 156 (5th Cir. 1996). First, we consult the applicable law

to ascertain the material factual issues. See King v. Chide, 974

F.2d 653, 655-56 (5th Cir. 1992). We then review the evidence

bearing on those issues, viewing the facts and inferences to be

drawn therefrom in the light most favorable to the nonmoving

party. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272

(5th Cir. 1994). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c). We may affirm a district court’s grant of summary

judgment on any ground that was raised before the district court

and upon which both parties had an opportunity to present

evidence. Conkling v. Turner, 18 F.3d 1285, 1296 n.9 (5th Cir.

1994).

III. DISCUSSION

Ellis argues that the district court erred in granting

summary judgment declaring that Essex had no duty to defend or to

indemnify Ellis in the underlying lawsuit. In support of this

argument, Ellis contends that the Wootens’ alternate negligence

claim in the underlying suit qualifies as an “occurrence” under
2 In addition, Ellis contends that the conduct he

characterizes as an “occurrence” does not fall under the rubric

of Policy exclusions preventing coverage. However, because Ellis

cannot meet the threshold requirement of an “occurrence”

triggering policy coverage, we do not reach any conclusion as to

the potential applicability of Policy exclusions.

5

the Policy and triggers Essex’s duty to defend.2 Finally, Ellis

contends that unresolved fact issues preclude summary judgment on

Essex’s duty to indemnify.

A. Duty to Defend 

Under Texas law, an insurer’s duty to defend is triggered

when allegations in the plaintiff’s pleadings raise a potential

for coverage under the policy. See Cornhill Ins. PLC v.

Valsamis, Inc., 106 F.3d 80, 84 (5th Cir. 1997); see also

Argonaut Southwest Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex.

1973). Put another way, the determination of an insurer’s duty

to defend depends exclusively upon the “eight corners” of the

pleading and the policy. See National Union Fire Ins. Co. v.

Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.

1997). We must therefore focus our review solely on the facts

pled and the policy language, and we exclude alleged legal

theories that lend an interpretative slant to the facts. See

Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82

(Tex. 1997) (indicating that the court must focus on factual

allegations rather than legal theories); National Union Fire, 939

S.W.2d at 141 (same).
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Ellis argues that the district court did not properly apply

the eight corners rule because it impermissibly resolved issues

of fact in favor of Essex. Specifically, Ellis contends that,

because it is disputed whether Defendants in the Wooten suit knew

that they were on the Wootens’ property and cutting down the

wrong trees and because an alternate pleading exists alleging

negligence, the Wootens’ injuries are properly characterized as

the result of the negligent determination of property boundary

lines and therefore constitute an “accident” or “occurrence”

under the Policy’s terms. We disagree.

Ellis’s argument fails for two reasons. First, as explained

above, the district court is obligated to exclude legal theories

from its analysis of the allegations in the underlying suit. 

Thus, a legal theory of negligence cannot be asserted by the

insured as a factual element triggering the insurer’s duty to

defend. See Farmers, 955 S.W.2d at 82-83. Regardless of whether

negligence caused one or more Defendants to enter the property,

the allegation is that Defendants trespassed, cut down trees that

did not belong to them, and later removed them. Thus, as the

district court correctly indicated, the mere fact that the

Wootens pled that these actions resulted from negligence has no

bearing on our eight corners review.

Second, in applying Texas law, this court has repeatedly

held that, “where liability premised on negligence is related to

and interdependent of other tortious activities, the ‘ultimate
7

issue’ [in a duty to defend case] is whether the tortious

activities themselves are encompassed by the ‘occurrence’

definition.” Cornhill Ins. PLC, 106 F.3d. at 87 ; see also New

York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 339 (5th

Cir. 1996); cf. Farmers, 955 S.W.2d at 82-83 (focusing on the

alleged intentional act of shooting that was the origin of

damages in determining whether the insurer on an automobile

liability policy had a duty to defend the insured driver on a

theory of negligent use of an automobile).

An application of this established rule of law precludes

distinguishing the alleged negligent conduct from the trespass

and conversion as a separate “occurrence” in this case. The

negligent identification of boundary lines is merely suggested as

a proximate cause of the alleged injury; the Wooten’s negligence

claim would not exist absent the subsequent intentional torts of

trespass and conversion. The allegation that Defendants

negligently identified boundary lines therefore cannot create a

duty on the part of Essex to defend. See Canutillo Indep. Sch.

Dist. v. National Union Fire Ins. Co., 99 F.3d 695, 704-5 (5th

Cir. 1996) (“Where the legal claims asserted by the plaintiffs

are not independent and mutually exclusive, but rather related to

and dependent upon excluded conduct, the claims are not covered,

even if asserted against an insured who did not himself engage in

the prohibited conduct.”). Ellis’s negligence, if any, is

“related to and interdependent of” the tortious conduct alleged
8

and cannot be considered apart from the trespass and conversion

claims. See Columbia Mut. Ins. Co. v. Fiesta Mart, Inc., 987

F.2d 1124, 1128 (5th Cir. 1993) (finding that the “occurrence”

inquiry focused on fraud alleged, not precipitating negligence). 

Our only inquiry is therefore whether the intentional acts are

covered in the Policy definition of “occurrence.”

Under Texas law, the insured bears the burden of showing

that the claim against it is potentially within policy coverage. 

See New York Life Ins. Co., 92 F.2d at 338. The Policy provides

coverage for “bodily injury” or “property damage” and creates a

duty on the part of Essex to defend the insured in lawsuits

alleging an “occurrence” under the Policy. The district court

found, and Ellis does not dispute, that the emotional injuries

complained of do not fall within the definition of “bodily

injury” as set forth in the Policy. Neither party disputes that

the Wootens incurred “property damage.” Therefore, the only

remaining issue is a threshold determination of whether an event

classified as an “occurrence” took place, thereby triggering

Essex’s duty to defend.

The Policy defines “occurrence” as “an accident, including

continuous or repeated exposure to substantially the same general

harmful conditions.” The term “accident” is not defined. In

construing an insurance policy, the Texas Supreme Court recently

reaffirmed that intentional conduct does not constitute an

“accident,” even if the actor does not intend or expect the
9

consequences that follow from the intentional conduct. Trinity

Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827-28 (Tex. 1997). 

In reaching its holding in Trinity, the court cited with approval

Argonaut Southwest Insurance Co. v. Maupin, 500 S.W.2d 633 (Tex.

1973), a case factually similar to the case at bar. In Argonaut,

the defendant removed dirt from property under an agreement with

an individual the defendant mistakenly believed to be its owner.

Id., at 633-34. When the true owner sued, the defendant argued

that its conduct was an “accident” and therefore within its

policy coverage. Id. The court rejected this argument, stating:

The plaintiff’s act in trespassing upon the Meyers’

property did not constitute an accident. They did what

they intended to do by removing the [dirt] from the

property. The fact that they were unaware of the true

owner of the property has no bearing upon whether the

trespass was caused by accident. The respondent’s acts

were voluntary and intentional, even though the result

or injury may have been unexpected, unforeseen and

unintended.

Id. at 635. 

An identical analysis is applied in this case. The fact

that Ellis may have been unaware that he was sending LGA agents

to the Wootens’ property is irrelevant in determining whether

they intended to clear the plot of land once they got there. It

is clear that the conduct causing the Wootens’ property damage

did not constitute an accident and therefore did not constitute

an occurrence. Essex thus has no duty to defend LGA or Ellis.

B. Duty to Indemnify
10

An insurer’s duties to defend and indemnify are distinct and

separate. See Trinity, 945 S.W.2d at 821-22. The duty to defend

is broader than the duty to indemnify. See Lafarge Corp. v.

Hartford Cas. Ins. Co., 61 F.3d 389, 393 (5th Cir. 1995). Unlike

the duty to defend, the duty to indemnify is not based on

allegations but on the actual facts proven that underlie the

cause of action and result in the insured’s liability. See

Canutillo, 99 F.3d at 701. As the Texas Supreme Court held in

Farmers: 

[T]he duty to indemnify is justiciable before the

insured’s liability is determined in the liability

lawsuit when the insurer has no duty to defend and the

same reasons that negate the duty to defend likewise

negate any possibility the insurer will ever have a

duty to indemnify. . . . No facts can be developed in

the underlying tort suit that can transform [cutting

down and removing trees] into an [“accident”]. 

Farmers, 955 S.W.2d at 84. 

Ellis contends that a declaratory judgment as to future

indemnity is improper because the Wootens can potentially amend

their complaint to allege other conduct that may fall within

Policy coverage and trigger the duty to defend or indemnify. 

However, the district court limited its judgment that Essex had

no duty to indemnify LGA or Ellis to the allegations contained

within the Wootens’ Third Amended Original Petition. Therefore,

the district court’s judgment does not preclude the existence of

a duty on the part of Essex to indemnify should the Wootens

further amend their complaint.
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IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.