PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED FIRE & CASUALTY COMPANY, an Iowa corporation, Plaintiff-Counterclaim Defendant– Appellee/Cross-Appellant,

v. BOULDER PLAZA RESIDENTIAL, LLC, a Colorado limited liability company, Defendant-Counterclaim Plaintiff– Appellant/Cross-Appellee. Nos. 10-1056 & 10-1075

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:06-C V-00037-PAB-CBS)

George V. Berg, Jr. (Heidi C. Potter, and Judy B. Snyder with him on the briefs), Berg Hill Greenleaf & Ruscitti LLP, Boulder, Colo rado, for the Plaintiff-Counterclaim Defendant–Appellee/Cross-Appellant. Elizabeth C. Moran (Michael S. Drew, and Ke vin P. Ahearn with he r on the briefs), Pryor Johnson Carney Karr Nixon, P.C., Greenwood Village, Co lorado, for the DefendantCounterclaim Plaintiff– Appellant/Cross-Appellee.

Before LUCERO , BALDOCK , and HOLMES , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### January 27, 2011
Elisabeth A. Shumaker Clerk of Court-2- LUCERO , Circuit Judge.

Boulder Plaza Residential, LLC (“BPR”) ap peals the district court’s grant of summary judgment for United Fire & Casua lty Co. (“UFC”). In its order granting summary judgment, the district court held that under Colora do law, UFC, an insurer, owed no duty of defense, nor duty of indemn ification. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I A BPR, a real estate developer, and Mc Crery & Roberts Construction Co. (“M&R”), entered into a contract (“the General Contra ct”), in which M&R agreed to serve as the general contractor for the interiors of condo miniums BPR was building in Boulder, CO. In the General Contract, M&R agrees to indemnify BPR: [F]rom and against claims, damages, losse s, and expenses . . . arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulti ng therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indi rectly employed by them or anyone for whose acts they may be liable, rega rdless of whether or not such claim, damage, loss or expense is caused in part by a party inde mnified hereunder. M&R then entered into a subcontract with Summit Flooring, LLC (“Summit”), whereby Summit agreed to install the hardwood floors in the condom iniums. In the subcontract,-3- Summit agreed “to indemnify and save [M&R] ha rmless against all claims for damage to persons and property growing out of the ex ecution of the work, including any costs and fees incurred by [M&R], should any claims be made.” Summit also obtained Co mmercial General Liability (“ CGL”) insurance policies from UFC, in which UFC agrees to pay for “bodily injury” or “property damage” caused by any “occurrence” whic h subjects Summit to liability. M&R, as the general contractor, was listed as an Additional Insured in the policies’ Additional Insured Endorsements, which define the scope of coverage as follows: Section II - Who Is An Insured is amended to include as an insured the person or organization shown in the Sche dule [M&R], but on ly with respect to your [Summit’s] liability which ma y be imputed to that person or organization directly arising out of your ongoing operations performed for that person or organization. A pers on’s or organization’s status as an insured under this endorsement ends wh en your operations for that insured are completed. The policies also contain a coverage gran t under which UFC agrees to pay “sums that the insured become s legally obligated to pay as da mages because of ‘bodily injury’ or ‘property damage’ to which this insura nce applies,” and which establishes UFC’s “right and duty to defend the insured agai nst any ‘suit’ seeking those damages.” Although the CGL policies exclude contra ctually assumed liability, they also contain two exceptions to that exclusion, provi ding coverage for damages: “(1) [t]hat the insured would have in the absence of a contract or agreement; or (2) [a]ssumed in a contract or agreement that is an ‘insured contract’” entered into before the damages occur. “Insured contract” is defined in per tinent part as a contract “under which you-4- assume the tort liability of an other party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.”
B Shortly after the sale of the Boulder condominiums, their new owners notified BPR of damage to the floors of the units. BPR, in turn, notified M&R. M&R’s and Summit’s subsequent efforts to repair the floors were unsuccessful. BPR sent M&R a notice of loss relating to the floor installa tion, which M&R forwarded to Summit. M&R then sent UFC a formal notice of claim and demand for indemnification as an Additional Insured under the CGL policies. UFC investigated M&R’s claim and conclu ded that the physical damage to the floors was caused by excessive moisture in th e concrete floor and the wood floors at the time of installation, but that Summit’s “w ork and floor adhesion was sound.” UFC therefore denied coverage to M&R. BPR filed a lawsuit in Boulder County District Court against M&R and Summit, alleging various claims, including breach of contract and negligence, relating to the installation of the wood floors by Summit. The owners of the condominiums also filed suit against M&R, Summit, and BPR. The two lawsuits were eventu ally consolidated. M&R notified UFC of the co ndominium owners’ complaint against it and requested defense and indemnificati on under the CGL policies lis ting M&R as an additional insured. UFC responded with a letter in which it “den[ied] the tender of defense and indemnification to defend [M&R] related to the work performed by Summit” because the-5- policy only covered M&R with re spect to “ongoing operations.” C While the state action was pending, UFC f iled this action in federal court, seeking a declaratory judgment that it had no duty to de fend nor to indemnify M&R in state court. M&R subsequently settled the c onstruction defect lawsuit, a nd assigned its claims against UFC to BPR. BPR, as M&R’s assignee, file d counterclaims against UFC in this suit, alleging breach of the insuranc e contract and bad faith. BP R also pursued M&R’s crossclaims against Summit through trial in state c ourt, which resulted in the jury finding that Summit was not negligent and was not liable for the damages alleged by BPR. In the declaratory action, UFC and BPR filed cross-motions for summary judgment on the issue of UFC’ s duty to defend M&R. UFC ar gued that it had no duty to defend M&R because M&R’s coverage as an additional insured was limited to imputed liability arising out of the “o ngoing operations” of UFC’s na med insured, Summit. That obligation ceased once Summit’s operations were completed. According to UFC, the complaints in the underlying ac tion alleged that damage to the floors was first observed only after Summit had completed installation. As the endorsement did not cover M&R for liability arising out of completed opera tions, UFC contended th at it had no duty to defend M&R. The district court denied UFC’s motion, and granted summary judgment for BPR, ruling that the complaints su fficiently alleged damage to the floors during improper installation, thereby triggering a duty to defend M&R under the UFC policy. UFC’s-6- motion for reconsideration was denied. Next, the parties filed su mmary judgment cross-motions on the issue of UFC’s duty to indemnify M&R. On that issue, the district court granted BPR’s motion and held that UFC was obligated to indemnify M&R for liability under the CGL policies. UFC then filed a second motion for recons ideration of the duty-to-defend order, based primarily on a subsequent decision by the Colorado Court of Appeals, General Security Indemnity Co. of Arizona v. Mountain States Mutual Casualty Co. , 205 P.3d 529 (Colo. App. 2009). UFC’s motion for r econsideration was gran ted in part on the ruling that, under General Security , the complaints alleged only damages from faulty workmanship and there was therefore no “o ccurrence” within the definition of UFC’s policy. As a consequence, the district cour t concluded neither UFC’s duty to indemnify, nor its duty to defend was triggered. BPR filed a notice of appeal and UFC filed a notice of a conditional cross-appeal.
II We review the district court’s grant of su mmary judgment de novo. Shero v. City of Grove , 510 F.3d 1196, 1200 (10th Cir. 2007). Summary judgment is appropriate if “there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). We also review the district court’s interp retation of Colorado law de novo. Mincin v. Vail Holdings, Inc. , 308 F.3d 1105, 1108-09 (10th Cir. 2002). Under Colorado law, the interpretation of an insurance contract is a matter of law and is therefore reviewed de-7- novo. Compass Ins. Co . v. City of Littleton , 984 P.2d 606, 613 (Colo. 1999).
III A Under Colorado law, the duty of an insurer to defend its insured (or additional insured) is distinct from its duty to indemnify the insured. Hecla Mining Co. v. N.H. Ins.
Co. , 811 P.2d 1083, 1086 n.5 (Col o. 1991). “The duty to defe nd concerns an insurance company’s duty to affirmatively defend its insured against pending claims.” Cyprus Amax Minerals Co. v. Lexington Ins. Co. , 74 P.3d 294, 299 (C olo. 2003) (quotation omitted). In contrast, the: [D]uty to indemnify relates to the insu rer’s duty to satisfy a judgment entered against the insured. Because the duty to defend encompasses any potential claims raised by the facts and the duty to indemnify relates to the actual liability imposed, the Colorado Supreme Court] has consider ed the duty to defend to be a broader concept than the duty to indemnify.” Id. (citations omitted). “An insurer seeking to avoid its duty to defend an insured bears a heavy burden.” Hecla , 811 P.2d at 1089. “The actual liability of the insured to the claimant is not the criterion which places upon the insurance comp any the obligation to defend. Rather, the obligation to defend arises from allegations in the complaint, which if sustained, would impose a liability covered by the policy.” Id. (quotation and footnote omitted). The insurer has a duty to defend unle ss the insurer can establish that the allegations in the complaint are solely and entirely within the exclusions in the insurance policy. An insurer is not excused from its duty to defend unless there is no factual or legal basis on which the insurer might eventually be held liable to indemnify the insured.-8- Id. at 1090 (citation omitted). In order to determine whether an insurer owes a duty to defend an insured, Colorado courts apply th e “complaint” or “four corners” rule. See Cyprus Amax , 74 P.3d at 299. The duty to defend “arises when the underlying complaint against the insurer alleges any facts that might fall within the coverage of the policy.” Hecla , 811 P.2d at 1089 (citations omitted, emphasis added). In granting UFC’s motion for summary judg ment with respect to both the duty to defend and duty to indemnify, the distri ct court relied upon the Colorado Court of Appeals’ interpretation of “occurrence” in General Security , 205 P.3d 529. In the context of tort and breach of warranty claims, the Colo rado Court of Appeals held that “a claim for damages arising from poor workmanship, standing alone, does not allege an accident that constitutes a covered occurrence, regardless of the underlying legal theory pled.” Id. at 534. Instead an “‘accident’ and ‘occurrenc e’ are present when consequential property damage has been inflicted upon a third party as a result of the insu red’s activity.” Id. at 535. Consequently, if a complaint allege s damage resulting onl y from work performed by the insured, there is no accident and therefore no occurrence. This court has held that “where jurisdic tion rests solely on dive rsity of citizenship and there is no controlling deci sion by the highest court of a state, a decision by an intermediate court should be followed by the Federal court, absent convincing evidence that the highest court would de cide otherwise.” Webco Indus ., Inc. v. Thermatool Corp. , 278 F.3d 1120, 1126 ( 10th Cir. 2002) (ellipsis in origin al omitted). Therefore, the-9- General Security interpretation of “occurrence” would, in normal circumstances, govern this case. However, in response to General Security , the Colorado Legislature enacted Colo. Rev. Stat. § 13-20-808. Explicitly critiquing the restrict ive interpretation of “accident” adopted by the General Security court, § 13-20-808 provides that “in interpreting a liability insurance policy issued to a construction professi onal, a court shall presume that the work of a construction professional that re sults in property damage, including damage to the work itself or other work, is an accident.” Id. The statute “applies to all insurance policies currently in existence or issued on or after [its ] effective date [of May 21, 2010].” Id. (emphasis added). To determine the applicability of § 13-20-808, it would therefore be necessary to parse the meaning of “currently in existence,” which is not defined in § 13-20-808. Fortunately, we need not contemplate the meaning of “existence.” We may resolve the issues of whethe r UFC owed M&R a duty to defend or a duty to indemnify without reference to General Security or § 13-20-808.
B Although the district cour t granted UFC’s motion for su mmary judgment in part, it declined to disturb its earlier ruling that th e underlying complaints sufficiently alleged damages occurring within the period of th e “ongoing operations” language of the additional insured endorsement. UFC contends on conditional cross-appeal that this was

error.-10- UFC advances its “ongoing operations ” argument in a conditional cross-appeal. 1 Nonetheless we treat this argument as an al ternative basis for a ffirming the district court’s grant of summary judgment for UFC on the duty-to-defend issue. We have held that an “appellee may, without filing a cross- appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court.” Ute Distrib. Corp. v. Sec’y of Interior , 584 F.3d 1275, 1282 (10th Cir. 2009) (quotation omitted); see 15A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Fe deral Practice and Procedure § 3904, at 199-201 (1992) (“Cross-appeal is unnecessary even with resp ect to matters that ha ve been put aside by the district court, or matters that have been explicitly reject ed by the district court.”); cf

. TypeRight Keyboard Corp . v. Microsoft Corp. , 374 F.3d 1151, 11 57 (Fed. Cir. 2004) (“[W]e dismiss the cross-appeal . . . and trea t Microsoft[’]s arguments in support of its cross-appeal as an alternat e ground for affirming the district court[’]s judgment.” (footnote omitted)); Nanavati v. Burdette Tomlin Mem’l Hosp. , 857 F.2d 96, 102 (3d Cir. 1987) (“Because [cross-appellants] are complete ly satisfied with the final judgment and object only to interlocutory rulings of the di strict court, we lack jurisdiction over their appeal. However, we have treated the issues raised in the cross-a ppeal as alternative grounds for affirmance of the district court’s judgment.” (citation omitted)). UFC’s policy was issued to Summit, not M&R. Under the policy, M&R is an

1 UFC suggests we only need reach this question should we reverse the district court’s General Security -based order.-11- “additional insured,” and is th erefore covered “only with re spect to [Summit’s] liability which may be imputed to [M&R] directly aris ing out of [Summit’s] ongoing operations performed for [M&R].” In Weitz Co ., LLC v. Mid-Century Insurance Co. , 181 P.3d 309 (Colo. App. 2007), the Colorado Court of Appeals considered a similarly worded additional insured endorsemen t. About a year after the subcontractor in Weitz completed its work, the property owner observ ed damage to its floors. Id. at 311. An additional insured endorsement provided coverage to the general contractor for the subcontractor’s operations “only with respect to liability arising out of [t he subcontractors] ongoing operations performed for that insured.” Id. As in this case, the property owner filed action against the general contractor and the general contractor sought a defense to the insurer, which the insurer partially denied. Weitz holds that the words “only” and “ ongoing operations” us ed in conjunction result in more limited coverage for the additi onal insured general contractor vis-à-vis the insured subcontractor. Id. at 313. Coverage for “ongoi ng operations” is distinct from coverage for “completed operatio ns” or “completed work.” Id. Therefore, “under the plain and ordinary meaning of ‘arising out of your ongoing operations’ the endorsement to the policy d[id] not cover ‘completed op erations,’ and the insu rer ha[d] no duty to defend or indemnify the general contractor.” Id. at 315. As in Weitz , any claimed damage in this case was alleged to have arisen after operations were completed. With respect to an occurrence policy such as UFC’s, Colorado courts have held that “coverage is triggered only if a thir d party suffered actual-12- damage within the policy period.” Globe I ndem. Co. v. Travelers Indem. Co. of Ill. , 98 P.3d 971, 974 (Colo. App. 2004). Under Colo rado law, there is therefore a dispositive distinction between the timing of the wrongful act and the time of actual damage. “The time of the occurrence of an accident is not the time the wrongful act was committed but the time when the complaining part y was actually damaged.” Id. (alteration omitted). For example, the Colorado Supr eme Court held that an “acc ident” occurre d not when a gas pipeline was negligently installed, but when it actually exploded. Samuelson v. Chutich , 529 P.2d 631, 633-35 (C olo. 1974). “To stretch the scope of ‘accident’ backward in time to re ach the date of the earliest be ginning of any prior event which might be regarded as having a causal rela tion to the unlookedfor [sic] mishap would introduce ambiguity where none now exists.” Id. (quotation omitted). The physical manifestation of damage and not improper inst allation or other faulty workmanship is the trigger for coverage. BPR’s underlying complaint against M&R contained the following pertinent allegations of damage: 33. Summit began installing the floor boards in the Units at One Boulder Plaza on or about November 2002, and it completed the installation process on or about April, 2003

. 34. Shortly after installation was complete , many of the floors installed . . . began to exhibit signs of cupping, or upward warp ing of the outside edges of the floor boards.

. . . . 36. Subsequent to the floors cupping , the floors in many of the Units began-13- to exhibit signs of disbondmen t, panelization, and splitting. (Emphasis added). Under Weitz , these allegations refer to completed, rather than ongoing operations, and that ends the matter. In arguing otherwise, BPR essentially asks this court to transform UFC’s commercial general liability po licy into a performance bond . “CGL insurance protects businesses from third party claims for personal injury or property damage resulting from accidents.” Hoang v. Assurance Co. of Am. , 149 P.3d 798, 802 (Colo. 2007). A performance bond, in contrast, guarantees th e contractor will satis factorily perform the
contract. 17 Am. Jur. 2d Contractors’ Bonds § 1 (2010). That is why, in Colorado, “[t]he risk that an owner might reject performance as inadequate is a ‘business risk’ allocated by parties in contract, and is insured by a perfo rmance bond, not gene ral liability insurance intended to provide coverage for injuries or damage resulting from ‘accidents.’” DCB Constr. Co. v. Travelers Indem. Co. of Ill. , 225 F. Supp. 2d 1230, 1231 (D. Colo. 2002). Because the allegations fail to indicate a ny “factual or legal basis on which the insurer might eventually be held liable to indemnify the insured,” UFC did not owe M&R a duty of defense. Hecla , 811 P.2d at 1090. For this reas on, we need not decide whether Colo. Rev. Stat. § 13-20-808 applies to th is case. Regardless of what damage the complaint needed to allege, it only alleged da mage that occurred after the installation was complete. Accordingly, nothing in the four corners of the complaint alleged damage arising from Summit’s “ongoing operations,” and UFC therefor e had no duty to defend. C-14- BPR asks us to look bey ond the complaint’s four co rners, arguing that UFC’s duty-to-defend was triggered by informati on in two additional documents. First , BPR points to letter from a UFC claims adjuster to M&R that refers to “the resulting damage to the flooring and subsequent damage to th e units” arising from the improper installation of the floors. Second, BPR cites UFC’s Liab ility Cap Report which refers to claims of property damage “due to the high moisture content of the c oncrete slab [which resulted in] damage to the interior floors, trim , windows, doors, cabinets, drywall and wainscoting.” 2 As a general rule under Colorado law, an insurer’s duty to defend an insured is triggered solely on the basis of the allega tions made within the four corners of the complaint, read against th e insurance policy. The Colorado Supreme Court has “consistently held that an insu rer’s duty to defend arises solely from the comp laint in the underlying action.” Cotter Corp. v. Am. Empire Surplus Lines Ins. Co. , 90 P.3d 814, 827 (Colo. 2004) (emphasis added). “When re solving an insurer’s obligations in an anticipatory declaratory action brought before the conclusion of the underlying dispute, an insurer’s duty to defend is determined from the face of th e complaint.” Id. at 828. A court “determining whether a duty to defend exists . . . must restrict its examination to the four corners of the complaint.” Miller v. Hartford Cas. Ins. Co. , 160 P.3d 408, 410

2 Because we do not consider the conten t of UFC’s Liability Cap Report, see infra , we need not resolve whether BPR waived any argument rela ting to the content of this document as UFC contends.-15- (Colo. App. 2007). Despite Colorado courts’ frequent adm onishments to “solely” consider the allegations of the complaint, this court ha s twice predicted that the Colorado Supreme Court would recognize narrow exceptions to this general rule. See AIMCO v. Nutmeg Ins. Co. , 593 F.3d 1188 (10th Cir. 2010); Po mpa v. Am. Family Mut. Ins. Co. , 520 F.3d 1139 (10th Cir. 2008). In Pompa , we recognized an ex ception to the complain t rule, by which we will consider extrinsic evidence constituting “an indi sputable fact that is not an element of either the cause of action or a defe nse in the underlying litigation.” Id. The extrinsic evidence in that case was th e insured’s criminal conviction in another proceeding. Relying on a footno te in Cotter Corp. , 90 P.3d at 829 n.9, we held that an insurer could look to a criminal conviction, and thus outs ide the four corners of the complaint, in assessing its duty to defend. Pompa , 520 F.3d at 1147. Our holding in Pompa is based on the expectation that the Colorado Supreme Court would recognize an exception to the complaint rule if an insure d’s complaint contained allegations made in bad faith and “framed to trigger an insurance policy.” Id. We concluded that “judicially noticeable facts [such as a criminal conviction] are inco rporated into the complaint. Because the district court could have taken judicial notice of [a crimin al] conviction, that fact can be said to appear within the four corners of the co mplaint.” Id. at 1149.
In AIMCO , we recognized a second exception, considerin g extrinsic evidence in the form of an “allegation contained in several separate but factually related complaints.”-16- 593 F.3d at 1190. The AIMCO court predicted that the Colorado Supreme Court would recognize a narrow exception to th e four-corners rule “requiri ng an insurer to consider facts which it is aware of in pa rallel complaints that tend to sh ow a duty to defend” as this “would not undercut an insured’s leg itimate expectation of a defense.” Id. at 1194. Neither of the exceptions recognized in Pompa or AIMCO applies in this case. Recognizing this inconvenient reality, BPR asks us to broaden “the exception to include consideration of extrinsic evidence not necess arily contained in another complaint, as long as the insurer ha d knowledge of such ev idence when it denied coverage.” We will not do that. “[T]he responsibility of the federal courts , in matters of local law, is not to formulate the legal mind of the state, but me rely to ascertain and apply it.” Hardy Salt Co. v. S. Pac. Transp. Co. , 501 F.2d 1156, 1163 (10th Ci r. 1974) (quotation omitted). The Colorado Supreme Court has articulated the complaint rule in categorical and unequivocal terms: “an insurer’s duty to defend arises solely from the complaint in the underlying action.” Cotter Corp. , 90 P.3d at 827 (emphasis added). Neither the Colorado Supreme Court nor Colorado’s lower courts has thus far recognized any exceptions to this rule, nor has either ratified the two ex ceptions recognized by this Court in Pompa and
AIMCO . We are therefore wary of embracing a third, much broader exception to the plain language of Colorado’s complaint ru le absent clear aut hority from Colorado’s highest court. For this reason, we apply Colorado’s complaint rule and hold that UFC’s duty to defend could not have been tr iggered by BPR’s extrinsic evidence.-17- IV Having determined that UFC did not owe BP R a duty of defense, we turn to the narrower question of whether UFC owed BPR a duty to indemnify. At first blush the answer is simple: no. The Colorado Suprem e Court has repeatedly held that “[w]here there is no duty to defend, it follows that there can be no duty to indemnify.” E.g. Compass Ins. Co. , 984 P.2d at 621 (quotation omitted ). Because UFC did not owe M&R a duty of defense, under that general rule there could be no duty to indemnify. A Nonetheless, BPR contends that UFC did owe M&R a duty to indemnify because of obligations created in two separate docum ents: BPR’s General Contract with M&R, and the Additional Insured endorsem ent in Summit’s lia bility policy. The General Contract provides that M&R “shall be responsible to [BPR] for acts and omissions of the [M&R ’s] employees, Subcontracto rs and their agents and employees, and other persons pe rforming portions of Work under a contract with the Contractor.” The Additional Insured En dorsement of Summit’s policy with UFC provides: Who Is An Insured is amended to include as an insured the person or organization shown in the Schedule [M&R ], but only with respect to your [Summit’s] liability which may be imput ed to that person or organization [M&R] directly arising out of your on going operations pe rformed for that person or organization. A person’s or organization’s status as an insured under this endorsement ends when yo ur operations for that insured are completed. (Emphasis added). Thus in its contract w ith BPR, M&R assumed liability for acts and-18- omissions of M&R’s subcontractor, Summit. UFC in turn agreed to insure M&R for Summit’s “liability which may be imputed to ” M&R. BPR contends, therefore, that liability “imputed to” M&R in cludes liability affirmativ ely assumed by M&R to BPR through the General Contract. We disagree. The Colorado Supreme Court has repeatedly held that “[t]he duty to indemnify relates to the insurer’s duty to satisfy a judgment entered against the insured.” E.g. Cyprus Amax , 74 P.3d at 299 (emphasis added). Colorado courts’ “consistent recognition that the trigger fo r the duty to indemnify must normally await a determination of actual liability presupposes that indemn ity flows from the natu re of the ultimate verdict, judgment or settlement.” Id. at 301. In the event th at a case proceeds through trial, “the court must look to the facts as they developed at trial and the ultimate judgment” in assessing whether an insurer owes the insured a duty to indemnify. Id. In the underlying state court action, the jury found for Summit on all claims asserted by both BPR and M&R, and the verdict was affirmed on appeal. See Boulder Plaza Residential, LLC v. Summit Flooring, LLC , 198 P.3d 1217, 1218 (Colo. App. 2008). There was never a judgment against Su mmit, so Summit was not liable to anyone. It is that simple. BP R confuses M&R’s liability arising from Summit’s conduct with Summit’s liability imputed to M&R. Irrespective of M&R’s contractual obligations to BPR, Summit had no liability wh ich could be imputed to M&R. Under Cyprus Amax , absent such liability, UFC’ s duty to indemnify cannot be triggered. See 74 P.2d at 301.
B-19- BPR advances another theory: that UF C owed M&R a duty to indemnify under a different provision of the CGL policies pertaining to “insured contracts.” This provision provides coverage for insured contracts, which are defined as: That part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of a nother party to pay for “bodily injury” or “property dama ge” to a third person or organization. Tort liability means a liab ility that would be imposed by law in the absence of any contract or agreement. (Emphasis added). BPR argues because M&R assumed contractual liability to BPR for property damage, the contract between BPR and M&R is an “insured contract” to which UFC’s policies apply. This argument fails. Summi t’s insurance policy distinguishes between the “Named Insured,” Summit, and the “A dditional Insured,” M&R. And the policy specifically states that terms “you” and “your” mean only the Named Insured. Accordingly, the “insured contracts” provision on ly applies to the Named Insured. As an “Additional Insured,” M&R’s coverage is limited “to your [Summit’s] liability which may be imputed to that person or orga nization [M&R] directly arising out of your ongoing operations performed for that person or organization.” In interpreting similar language in Weitz , the court held that su ch terms limit coverage of the additional insured relative to that of the insured. See 181 P.3d at 313. Although Summit’s coverage includes its own “insured contracts,” M&R’s coverage is limited exclusively to the liability of Summit which may be imputed to M&R. C-20- Contrary to BPR’s assertion, there is no conflict or inconsistency between the policy’s provisions defining coverage. As opposed to the situ ation in which one insurance policy creates conflicting co verage and limitations for the same insured, see,
e.g. , Simon v. Shelter General Insurance Co. , 842 P.2d 236, 239 (Colo. 1992), a CGL policy which specifically provides for a sepa rate narrower grant of coverage for an additional insured general contractor relativ e to the insured subc ontractor does not in itself create conflict. Simon has no bearing on this case.
D For the same reason, UFC owed BPR no dut y to indemnify under the “tort liability exception” of the policy, which is liability “the insured would have in the absence of the contract or agreement.” Once again, this co verage pertains to the insured, Summit, and not the additional insured, M&R, whose c overage is defined by the terms of the additional insured endorsement.
V For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for UFC with respect to both the du ty to defend and duty to indemnify. The pending motion to certify a question to the Colorado Supreme Court is DENIED

.