ORDER

SAM LINDSAY, District Judge

Before the court are Tealwood Construction, Inc.'s Motion for Summary Judgment, filed May 21, 2003; and Scottsdale Insurance Company's Motion for Summary Judgment, filed June 10, 2003. After careful consideration of the motions, responses, reply, summary judgment evidence, record and applicable law, the court grants Scottsdale Insurance Company's Motion for Summary Judgment; and denies Tealwood Construction, Inc.'s Motion for Summary Judgment.

I. Factual and Procedural Background

The relevant facts in this case are not in dispute. Plaintiff Tealwood Construction, Inc. ("Plaintiff or "Tealwood") is a Texas corporation. Defendant Scottsdale Insurance Company ("Defendant" or "Scottsdale") is an insurance company with its principal place of business in Arizona. Tealwood seeks, inter alia, a declaration that Scottsdale has a duty to defend and indemnify it in a lawsuit brought by Parkway Quarter Homeowners' Association, Inc. ("Parkway") against it and several other defendants in state court.

For three years beginning in January 1999, Scottsdale issued Tealwood one-year commercial general liability ("CGL") insurance policies, policy numbers CLS0567889, CLS0653433, and CLS0709300 (collectively referred to as the "Policy"). The Policy provided Tealwood with, inter alia, bodily injury and property damage liability insurance coverage. Specifically, the insuring agreement for bodily injury and property damage liability provides that Scottsdale "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily damage' or `property damage' to which this insurance applies." The Policy further provides that Scottsdale "will have the right and duty to defend the insured against any `suit' seeking those damages."

During this time period, Parkway hired Tealwood to perform renovations, including painting new siding, on the Parkway Quarter Condominiums. After completion of the renovations, Parkway contends that "the paint began peeling from a significant portion of the siding which was installed and/or painted as part of the [r]enovation [w]ork." Parkway subsequently filed a lawsuit against Tealwood and several other entities in state district court based on the renovation work. Shortly thereafter, Tealwood forwarded a copy of the Parkway lawsuit to Scottsdale with a demand for a defense and indemnity of the claims. Scottsdale denied coverage because the claims of defective workmanship made in the Parkway lawsuit did not describe an "occurrence" resulting in "property damage" as those terms are defined in the CGL policy and because several exclusions precluded coverage. Parkway amended its petition three times, and Scottsdale denied coverage each time. Parkway's Third Amended Original Petition alleges breach of contract, breach of express and implied warranties, negligence and negligent supervision ("Parkway Petition").

On August 29, 2002, Tealwood filed this lawsuit against Scottsdale in Texas state district court seeking a declaration of rights and duties of the parties under the insurance policy and asserting claims for breach of contract and a violation of § 21.55 of the Texas Insurance Code. On October 4, 2002, Scottsdale removed the lawsuit to federal district court pursuant to 28 U.S.C. § 1446 based on diversity jurisdiction. Both Tealwood and Scottsdale have filed summary judgment motions.

II. Summary Judgment Standard

Summary judgment shall be rendered when 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Analysis

A. Interpretation of Insurance Contracts

The interpretation of an insurance policy is a question of law. New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). Insurance policies are contracts and are governed by the principles of interpretation applicable to contracts. Amica Mut. Ins. Co. v. Moak, 55 F.3d 1093, 1095 (5th Cir. 1995) (citing Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex. 1987)). As this is a diversity case, Texas rules of contract interpretation control. See id.; see also Potomac Ins. Co. v. Jayhawk Medical Acceptance Corp., 198 F.3d 548, 550 (5th Cir. 2000).

B. Duty to Defend and Duty to Indemnify

In determining whether an insurer has a duty to defend, the court must examine the latest amended pleading upon which the insurer based it refusal to defend the action. See Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co., 99 F.3d 695, 701 (5th Cir. 1996). Texas courts follow the "eight corners" or "complaint allegation" rule, which requires the trier of fact to examine only the allegations in the underlying complaint and the insurance policy, see id.; see also Gulf Chem. Metallurgical Corp. v. Associated Metals Minerals Corp., 1 F.3d 365, 369 (5th Cir. 1993), without reference to their veracity. See Argonaut Southwestern Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex. 1973). In reviewing the underlying pleadings, the court must focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged. American States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir. 1998); National Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 141 (Tex. 1997) ( citing Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex.App.-Houston [14th Dist.] 1993, writ denied) ("It is not the cause of action alleged that determines coverage but the facts giving rise to the alleged actionable conduct.")). The allegations in the underlying petition are to be interpreted liberally, resolving any doubt in favor of the insured. National Union, 939 S.W.2d at 141. The duty to defend arises when the facts alleged in the petition, if taken as true, potentially state a cause of action within the terms of the policy. Canutillo, 99 F.3d at 701. Thus, it is the insured's burden to show that the claim against it is potentially within the policy's coverage. Id. An insurer has an obligation to defend an insured if the petition alleges at least one cause of action within the policy's coverage. Id. If, however, under the facts alleged, there is a prima facie showing that the claim is not covered under the policy, the insurer has no duty to defend. See National Union, 939 S.W.2d at 141.

Unlike the duty to defend, however, which is based on the allegations in the petition, the duty to indemnify is triggered by the actual facts establishing liability in the underlying suit. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex. 1997). If there is no duty to defend, there is no duty to indemnify. See Bailey, 133 F.3d at 368.

C. Parkway Petition

Tealwood contends that Scottsdale has a duty to defend pursuant to the Policy because the allegations in the Parkway Petition trigger coverage under the bodily injury and property damage provision of the Policy. Under the bodily injury and property damage provision of the Policy, Scottsdale provides coverage for "bodily injury" or "property damage" that is caused by an "occurrence" that takes place in the "coverage territory" and occurs during the policy period. Pl. App. at 107. Scottsdale counters that it owes Tealwood no duty to defend because Parkway's claims do not constitute an "occurrence" or "property damage" under the Policy.

In determining whether Scottsdale has a duty to defend, the court examines whether the Parkway Petition alleges conduct that constitutes an "occurrence" as that term is defined under the Policy. The Policy defines "occurrence" as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions." Pl. App. at 116. Although the Policy does not define the term "accident," the Texas Supreme Court has held that "an injury is accidental if `from the viewpoint of the insured, [it is] not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by [the] insured, or would not ordinarily follow from the action or occurrence which caused the injury.'" Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 155 (Tex. 1999) (quoting Republic Nat 7 Life Ins. Co. v. Heyward, 536 S.W.2d 549, 557 (Tex. 1976)). An injury caused by voluntary and intentional conduct is not an accident simply because the result or injury may have been unexpected, unforseen and unintended. Mid-Century, 997 S.W.2d at 155. On the other hand, that the actor intended to engage in the conduct giving rise to the injury does not mean that the injury was not accidental. Id. Rather, both the actor's intent and the reasonably foreseeable effect of his conduct bear on the determination of whether an occurrence, or event in this case, is accidental. Id. An effect that cannot be reasonably anticipated from the use of the means that produce it, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. Id.

"There are two lines of Texas cases construing the definition of `occurrence' for the purpose of insurance coverage." Federated Mut. Ins. Co., v. Grapevine Excavation Inc., 197 F.3d 720, 723 (5th Cir. 1999). The first line "pertains to coverage of claims against an insured for damage caused by its alleged intentional torts." Id. "According to this body of law, damages that is the natural result of voluntary and intentional acts is deemed not to have been caused by an occurrence, no matter how unexpected, unforeseen, and unintended that damage may be." Id. (emphasis in original omitted). The second line pertains to coverage of claims against an insured for damage caused by its alleged negligence. Id. at 724. Under this body of law, "the terms `accident' and `occurrence' [have been interpreted] to include damage that is the `unexpected, unforeseen or undesigned happening or consequence' of an insured's negligent behavior." Id. at 725.

Tealwood contends that the negligence claims made in the Parkway Petition necessarily constitute an "occurrence." Scottsdale counters that merely alleging negligence is insufficient to constitute an "occurrence." The court agrees. "[T]he mere allegation of negligence does not control the issue of the duty to defend." Freedman v. Cigna Ins. Co. of Texas, 976 S.W.2d 776, 779 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The focus is on "the factual allegations that show the origin of the damages rather than on the legal theories alleged." American States Ins. Co., 133 F.3d at 369. Indeed, this principle makes sense. If this were not the rule, anyone seeking coverage would merely make a broad allegation so that he would automatically fall within coverage.

The Parkway Petition does not set forth sufficient facts upon which to determine whether coverage exists. Only the following facts are pleaded: Parkway and Tealwood "entered into a series of agreements setting forth the work to be performed by Tealwood" which "consisted of, among other things: [r]eplacing the old siding; replacing certain decking; and preparing and painting the buildings comprising the Condominium Development, including painting the replacement siding (collectively the `Renovation Work')"; Tealwood hired various subcontractors to assist with the Renovation Work; Tealwood was ultimately responsible for the Renovation Work; Upon completion of the Renovation Work, Parkway paid Tealwood the agreed amount; and "Subsequently, various problems developed in connection with the Renovation Work. Among other things, the paint began peeling from a significant portion of the siding which was installed and/or painted as part of the Renovation Work." PI. App. at 80-81.

While the court is aware of, and agrees with, the line of cases holding that construction defect claims arising from negligent work allege an "occurrence," this case is different because the Parkway Petition does not involve claims of construction defects and it includes only bare-bones allegations of negligence. Stated another way, the Parkway Petition merely alleges legal theories without setting forth adequate facts to show the origin of the damages. For example, with regard to its negligence claim, Parkway merely states that "Tealwood owed a duty to [it] to exercise ordinary care and diligence. Tealwood (and/or its subcontractors) engaged in conduct which breached its duty and cause damages to [Parkway]." Similarly, with regard to its negligent supervision claim, Parkway merely states that "Tealwood owed a duty to [it] to exercise ordinary care and diligence in supervising its subcontractors and others in the Renovation Project. Tealwood (and/or its subcontractors) breached that duty and caused damages to [Parkway]."

"Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy." National Union Fire Ins. Co., 939 S.W.2d at 141 (quoting Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex. 1965)). The court, however, will" . . . not read facts into the pleadings[,]" . . . look outside the pleadings, or imagine factual scenarios which might trigger coverage." Id. at 142. Because the Parkway Petition is devoid of facts and the court cannot guess, speculate or imagine facts, the Parkway Petition does not create doubt which compels coverage.

The court finds this case closely analogous to Jim Johnson Homes, Inc. v. Mid-Continent Cas. Co., 244 F. Supp.2d 706 (N.D. Tex. 2003). In that case, the insured builder sought a declaration that its CGL insurer had a duty to defend it in an arbitration proceeding in which a third party was seeking damages against the builder for alleged problems with the construction of their home. The claims asserted against the builder were breach of contract; violation of the Texas Deceptive Trade Practices Act; fraud; and negligence. The court found that the builder was not entitled to coverage because the real issue was that the builder failed to live up to his contractual obligations:

Alternative, conclusory allegations of negligence such as the [third parties] made in their demand cannot serve to overcome the specific facts, as set forth in the demand, when, as here, those facts quite clearly demonstrate that the real complaint is that plaintiff did not live up to his contractual obligations to build their house properly.

Tealwood cites to five cases to support its contention that coverage exists: Federated Mut. Ins. Co., 197 T.3d 720; Great American Ins. Co. v. Calli Homes Inc., 236 F. Supp.2d 693 (S.D. Tex. 2002); ER Rubalcava Constr., Inc. v. Burlington Ins. Co., 147 F. Supp.2d 523 (N.D. Tex. 2000); First Texas Homes, Inc. v. Mid-Continent Cas. Co., 2001 WL 238112 (N.D. Tex. 2001); and CU Lloyd's of Texas v. Main Street Homes, Inc., 79 S.W.3d 687 (Tex.App.-Austin 2002, no pet). All five cases are distinguishable.

Three of the cases, (Federated Mut. Ins. Co.; Great American Ins. Co.; and ER Rubalcava Constr., Inc.) involve damage done to the work product of a third party, not to that of the insured. Damage done to the work product of a third party is generally presumed to have been unexpected and thus accidental. See Federated Mut. Ins. Co., 197 F.3d at 725 ("Many of these cases have involved claims for damage caused by an insured's defective performance or faulty workmanship. Furthermore, within this genre, courts have consistently held that damage wreaked on the work product of a third party — as opposed to that of the insured — is presumed to have been unexpected and, therefore, constitutes an accident or an occurrence.") (footnotes omitted); ER Rubalcava Constr., Inc., 147 F. Supp.2d at 527 ("[P]roperty damage to another person's property arising from faulty workmanship of the insured is an `occurrence' under the applicable policy language."). Here, the only damage claimed in the Parkway Petition is to the work performed by Tealwood, that is, the paint peeled from the replacement siding. Moreover, unlike the case at hand, the underlying petitions in these three cases allege sufficient facts to support a claim of negligence to trigger coverage.

Similarly, the underlying petitions in the two other cases (First Texas Homes, Inc., and CU Lloyd's) provided sufficient factual allegations upon which the courts could determine the existence of coverage. Specifically, in First Texas Homes, Inc., the court held that the broad allegations of negligence based on defective workmanship in the underlying lawsuit constituted an "occurrence" because the damage was neither expected nor intended from the insured's standpoint. 2001 WL 238112 at *3. The court relied on the holding in National Union Fire Ins. Co. that any doubt as to whether the allegations in a complaint against the insured state a cause of action within coverage should be resolved in the insured's favor. Unlike the underlying petition in First Texas Homes, Inc., the Parkway Petition does not contain sufficient factual allegations to even create doubt as to the existence of coverage. Further, in CU Lloyd's, the court found that the underlying petitions sufficiently alleged facts that were not "restricted to shoddy workmanship" which constituted an occurrence. 79 S.W.3d at 695. Thus, the underlying petitions in CU Lloyd's necessarily contained facts sufficient to determine the existence of coverage in contrast to the scant facts provided in the Parkway Petition.

Given that the Parkway Petition offers few, if any, facts for the court to consider in determining whether coverage exists and that Tealwood carries the burden to show that coverage potentially exists, the court determines that there are no genuine issues of material fact with respect to the existence of an "occurrence." Accordingly, Scottsdale is entitled to judgment as a matter of law. Thus, Scottsdale has no duty to defend or indemnify Tealwood in the Parkway lawsuit. As the court has determined that Scottsdale has no duty to defend or indemnify Tealwood, Tealwood's claims for breach of contract and a violation of § 21.55 of the Texas Insurance Code are denied. IV. Conclusion

For the reasons herein stated, there is no genuine issue of material fact regarding any claims. Therefore, the court grants Scottsdale Insurance Company's Motion for Summary Judgment. Consequently, the court declares that Scottsdale has no duty to defend or indemnify Tealwood for the claims asserted against it in the underlying state action styled Parkway Quarter Homeowners' Association, Inc. v. Tealwood Construction, Inc., Monarch Paint Co., Wyerhaeuser Co., Payless Cashways, Inc., Texas Wholesale Bldg. Materials, Inc., and DW Lumber f/k/a Northeast Texas Lumber Supply, Cause Number 02-2055-B, 44th Judicial District Court of Dallas County, Texas. As the court has granted summary judgment to Scottsdale, a favorable ruling on Tealwood's motion for summary judgment would be wholly inconsistent with the court's ruling granting summary judgment in favor of Scottsdale. Therefore, Tealwood's motion for summary judgment is denied. Accordingly, this action against Scottsdale is dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.

It is so ordered