DURHAM, J.
Plaintiff, Bresee Homes, Inc. (Bresee), seeks review of a Court of Appeals decision that affirmed a trial court judgment in favor of defendant, Farmers Insurance Exchange (Farmers). Bresee Homes, Inc. v. Farmers Ins. Exchange, 227 Or.App. 587, 206 P.3d 1091 (2009). The dispute concerns the correct
The trial court granted a motion for summary judgment in favor of Farmers and denied the cross-motion for partial summary judgment filed by Bresee. On review, this court examines the summary judgment record, in accordance with ORCP 47 C, to determine whether the pleadings and any supporting documents on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). Bresee's claims allege that Farmers breached its obligations under the policy (a) to defend Bresee against a claim against Bresee, and (b) to indemnify Bresee against any liability for damages arising out of the claim. Those are separate obligations requiring a separate analysis. Paxton-Mitchell Co. v. Royal Indemnity Co., 279 Or. 607, 610-11, 569 P.2d 581 (1977).
On July 15, 2005, the Joneses filed an action against Bresee for breach of contract and negligence regarding the construction of their home. The Joneses alleged that, on April 2, 1999, they had contracted with Bresee, a contractor, for the construction of a custom home in Salem. They alleged that Bresee had failed to install flashing properly and that the exterior synthetic stucco, known as the Exterior Insulated Finish System (EIFS), leaked water into the interior and failed. They sought $52,580 in damages from Bresee, consisting of both the cost to repair the siding work and damages arising from the failure of the siding.
According to Bresee, Farmers had sold a CGL policy to Bresee that was in effect over various successive periods from the late 1980s to June 17, 2003. When Bresee received the Joneses' complaint, Bresee tendered the Joneses' claims to Farmers and requested a defense and indemnification under the CGL policy. When Bresee tendered the Joneses' claims, Farmers, acting through its lawyer, denied the tender, citing the "products — completed operations hazard" exclusion in the policy. We discuss the pertinent provisions of the CGL policy and the exclusion below.
Bresee filed this action against Farmers for breach of contract and for a declaratory judgment, asserting, as noted above, that Farmers had contractual obligations to provide a defense against the Joneses' action and to indemnify Bresee for any liability to the Joneses. Farmers filed a motion for summary judgment and argued that the "products — completed operations hazard" endorsement to the CGL policy precluded any liability to Bresee. Bresee filed a cross-motion for partial summary judgment and argued that the endorsement did not apply and that, even if it did, the court should conclude that the Joneses' complaint, reasonably construed, could be read to include a covered loss, i.e., property damage occurring before completion of construction and damages arising from the failure of a product installed by a subcontractor.
Bresee also contended that extrinsic evidence of Farmers's adjustment and settlement of multiple nearly identical EIFS damage claims by other homeowners against Bresee was relevant for two reasons. First, it constituted some evidence of how the parties intended the CGL policy to apply to similar claims by homeowners against Bresee. Second, it amounted to some proof that Farmers had waived its position that the "products — completed operations hazard" endorsement precluded any coverage of the Joneses' claim against Bresee.
The trial court, as noted, granted Farmers's motion for summary judgment and denied Bresee's cross-motion for partial summary judgment. The trial court determined, as an initial matter, that the property damage claimed by the Joneses was included within the coverage portion of the Farmers CGL policy. However, the court ultimately concluded that the "products — completed operations hazard" policy provision defeated any claim for coverage. The trial court also determined that Bresee's claim for a defense was not well taken because Bresee, in submitting evidence on summary judgment, had not established when Bresee's subcontractor had completed the work and when the alleged damage had occurred.
Bresee's claims for a defense and for coverage under the CGL invoke separate contractual obligations governed by different legal standards. We begin with Bresee's claim for a defense against the Joneses' action.
This court examines two documents to determine whether an insurer has a duty to defend an action against its insured: the insurance policy and the complaint in the action against the insured. Marleau v. Truck Insurance Exchange, 333 Or. 82, 89, 37 P.3d 148 (2001). As this court has explained:
Ledford v. Gutoski, 319 Or. 397, 399-400, 877 P.2d 80 (1994) (emphasis in original; citations omitted).
Regardless of the presence of ambiguity or unclarity in the complaint, the key question is whether the court can reasonably interpret the allegations to include an incident or injury that falls within the coverage of the policy. Blohm et al v. Glens Falls Ins. Co., 231 Or. 410, 416, 373 P.2d 412 (1962). As this court observed in Marleau, "[N]either the failure to identify correctly the claims nor the failure to state them separately defeats the duty to defend." 333 Or. at 91, 37 P.3d 148. As long as the complaint contains allegations that, without amendment, state a basis for a claim covered by the policy, the duty to defend arises. Id. The inclusion in the complaint of other allegations describing claims that fall outside the policy's coverage is immaterial. See Abrams v. General Star Indemnity Co., 335 Or. 392, 400, 67 P.3d 931 (2003) (if the complaint contains allegations of covered conduct, the insurer has a duty to defend even if the complaint also contains allegations of excluded conduct). Any ambiguity concerning potential coverage is resolved in favor of the insured. Ledford, 319 Or. at 400, 877 P.2d 80.
We turn now to the provisions of the CGL policy that Farmers issued to Bresee. The parties agree that the following policy terms were in effect between June 17, 1998, and June 17, 2003; that the parties renewed the policy annually; and that the policy pertains to the claim that the Joneses filed against Bresee.
The policy, as pertinent to this dispute, consists of a broad insuring agreement stating the insurer's promise to pay specified damages and to defend the insured against claims brought against the insured to recover those damages. A list of exclusions from coverage follows the insuring agreement. Finally, the policy sets out a list of definitions of terms and phrases in the policy. We set out below those relevant parts of the policy:
"EXCLUSION — PRODUCTS — COMPLETED OPERATIONS HAZARD" endorsement, which states:
Several aspects of the insurance policy are noteworthy. First, the coverage agreement, and specifically the duty to defend Bresee, would apply to the Joneses' claims if the property damages that their complaint sought constitutes "property damage" to which the policy applied.
Second, the policy incorporates qualifying wording for some property damage exclusions that has the effect of limiting or cancelling the particular exclusion. For example, in the coverage portion of the policy, paragraph 2.j.(6) excludes property damage to property "that must be restored, repaired or replaced because `your work' was incorrectly performed on it." However, the policy declares that that exclusion is inapplicable "to `property damage' in the `products — completed operations hazard.' Similarly, paragraph 2.1. excludes "`[p]roperty damage' to `your work' arising out of it or any part of it and included in the `products — completed operations hazard[,]'" but then declares that that exclusion is inapplicable "if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor."
Finally, the policy definition of the "products — completed operations hazard," which the property damage exclusions just cited incorporates, is itself subject to an exception under section V, paragraph 14.a.(2) for "[w]ork that has not been completed." The definition then sets out several factual circumstances under which the policyholder's "work" is deemed completed.
In construing the policy to determine whether it gives rise to a duty to defend, we construe the text of the policy as a whole, rather than view particular parts of the policy in isolation. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 836 P.2d 703 (1992). That principle applies with equal force to the construction of policy endorsements, exclusions, and exceptions. We may conclude, after construction of the policy as a whole, that a particular provision nullifies or limits coverage or that one policy provision controls over another. That conclusion, however, must result from the application of familiar principles of interpretation
Some aspects of the Joneses' complaint are noteworthy. The allegations do not state whether the claimed damages from the alleged breach of contract and negligence occurred before or after the completion of Bresee's work. From all that appears from a reading of the complaint, the described property damage occurred, or could have occurred, when Bresee's work was neither completed nor "deemed complete" under the "products — completed operations hazard," as defined in the policy.
Farmers argues that this court should conclude that the property damage alleged in the Joneses' complaint occurred after Bresee completed its work, in part because that complaint was filed in 2005 and used verbs in their past tense (e.g., "flashing was not properly installed," "the exterior synthetic stucco system failed") to describe the alleged deficient performance. We are not persuaded. The allegations describe events and damage that occurred in the past, but which could have occurred at any time after contract execution. The allegations describing past deficient performance and damage do not necessarily say anything about the date Bresee completed its work.
The Joneses' allegations also do not permit this court to conclude that the alleged damage arose from Bresee's work that "may [have] need[ed] service, maintenance, correction, repair or replacement but which is otherwise complete" within the meaning of the "products — completed operations hazard" definition. The allegations say nothing about whether Bresee's work was "otherwise complete," or whether Bresee's work might need service, maintenance, etc., to be regarded as completed.
Farmers also argues that Bresee bore the burden of demonstrating that the work was not completed when the alleged property damage occurred, in order to avoid the effect of the "products — completed operations hazard" exclusion. That is not correct. With regard to the duty to defend, Bresee has no burden to come forth with facts beyond those alleged in the Joneses' complaint. Those allegations stated the pertinent facts when Bresee tendered the Joneses' claims to Farmers and requested a defense. Our analysis of the duty to defend focuses on those allegations whether or not different or additional facts might be adduced at trial.
The Court of Appeals applied a different analysis of Farmers's motion for summary judgment, and we take this opportunity to correct it. As noted, the Court of Appeals observed that Farmers had presented some evidence in support of its motion for summary judgment indicating that Bresee had completed work on the Joneses' home in 1999, and that Bresee had presented no contradictory evidence that the claimed damage had occurred before Bresee had completed its work. The Court of Appeals concluded, as a result, that the record contained no issue of fact on that question and that Farmers was entitled to summary judgment. The court reasoned that Bresee had a specific burden to produce evidence that an exception (i.e., damage arising out of uncompleted work) to the exclusion — the "products — completed operations hazard" — applied. See Bresee, 227 Or.App. at 593, 206 P.3d 1091.
The Court of Appeals was mistaken in that analysis. Farmers relied on facts concerning the completion of Bresee's work that were not alleged in the Joneses' complaint. Farmers could discern from facts alleged by the Joneses and from its policy that the Joneses potentially could prove that the claimed damage arose before Bresee completed its work. When Bresee tendered the Joneses' complaint for defense, the factual question of whether the claimed damages had occurred before or after the completion of Bresee's work was an issue that the litigation between the Joneses and Bresee might determine, and, once established, could affect Farmers's duty to indemnify Bresee. The potential factual determinations in that litigation, however, are not the facts that governed Farmers's duty to defend Bresee. When Bresee tendered the Joneses' claims, only the facts alleged by the Joneses and the terms of the Farmers policy governed Farmers's duty to provide a defense.
In Casey, the insured drove his automobile into Shelton, causing injuries. Shelton sued the insured, alleging assault and battery. He then amended his complaint to also allege negligence. Ordinarily, the alleged facts would have been sufficient to state a claim covered by the insured's automobile liability policy, and thus, the facts would have given rise to the insurer's duty to defend the insured against Shelton's claim. This court, however, considered other evidence in the record. That evidence demonstrated that, before Shelton filed his complaint, the insured had been criminally prosecuted for his conduct and had been convicted of intentionally injuring Shelton with his automobile. The court held that that evidence was available for consideration because it established beyond dispute that the insured was estopped to assert that he did not act intentionally in injuring Shelton. 260 Or. at 490-92, 491 P.2d 208. The court declined to permit the insured to relitigate a key factual issue that the criminal prosecution already had conclusively resolved against him. The incontrovertible determination that the insured had intentionally injured Shelton established that the insured had no insurance coverage, and thus, the insurer had no duty to defend. Id. at 492, 491 P.2d 208.
This case involves no court determination that precludes coverage like the criminal court adjudication considered in Casey. This court has consistently focused its analysis on the policy and the underlying complaint,
The foregoing discussion indicates that the "products — completed operations hazard" exclusion does not eliminate Farmers's duty to defend Bresee against the Joneses' claims. We conclude that the Farmers policy provides a basis for coverage of property damage claims that the "products — completed operations hazard" exclusion does not eliminate. Under the facts alleged in the Joneses' complaint, Bresee could have liability for conduct covered by the policy. Under this court's standard, as discussed in Marleau and Ledford, Farmers owed a duty to defend Bresee. The trial court erred in granting Farmers's motion for partial summary judgment and in denying Bresee's cross-motion for summary judgment on the issue of the duty to defend.
The parties have submitted additional arguments regarding Farmers's ultimate duty to pay the benefits of its policy to Bresee. We cannot determine the answer to that question at this point. Bresee informed the trial court that the underlying case involving the Joneses had been settled. However, neither party disclosed to the trial court the cost of indemnifying Bresee as a consequence of that agreement. Neither party advised the Court of Appeals or this court of the terms of the settlement or how
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed and the case is remanded to that court for further proceedings.
260 Or. at 489, 491 P.2d 208 (emphasis added).