This insurance coverage case arises out of an underlying personal injury lawsuit brought by Michael Parr against Gilbane Building Company. Gilbane, a general contractor, sought defense and indemnification from Admiral Insurance Company based on an insurance policy held by Empire Steel Erectors, a subcontractor. On cross-motions for summary judgment, the district court determined that Admiral owed a duty to defend and indemnify. We REVERSE the summary judgment on the duty to defend and AFFIRM the judgment on the duty to indemnify.
I. Background.
The material facts of this case are undisputed. Parr sustained injuries on a construction site while climbing down a ladder. He sued Gilbane, the general contractor operating the construction project, and Baker Concrete, the company responsible for installing and maintaining the ladders at the site. 1 He did not sue his employer, Empire Steel. He alleged that recent rainstorms had caused the construction site to accumulate mud and that Gilbane had been negligent in failing to keep the workplace clean.
Gilbane requested that Admiral Insurance defend and indemnify it as an additional insured under the commercial general liability (CGL) policy that Empire Steel had obtained from Admiral. The CGL policy contains the following provisions that are relevant here:
SCHEDULE
Name of Additional Insured Person(s) or Organization(s):
Any person or organization that is an owner of real property or personal property on which you are performing ongoing operations, or a contractor on whose behalf you are performing ongoing operation, but only if coverage as an additional insured is required by written contract or written agreement that is an “insured contract,” and provided that the “bodily injury,” “property damage” or “personal & advertising injury” first occurs subsequent to execution of the contract or agreement ....
A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for “bodily injury,” “property damage” or “personal & advertising injury” caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf;
in the performance of your ongoing operations for the additional in *593 sured(s) at the location(s) designated above ....
9. “Insured contract” means: ... f. That part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay for “bodily injury” or “property damage” to a third person or organization, provided the “bodily injury” or “property damage’’ is caused, in whole or in part, by you or those acting on your behalf. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
In other words, the CGL policy provides coverage to additional insureds for their own or their agents’ acts or omissions, so long as Empire Steel had previously assumed the liability of the potential additional insured in a written contract.
Gilbane requested coverage from Admiral, claiming that it qualified as an additional insured under the CGL policy. Gilbane based its claim on the Trade Contractor Agreement (TCA) between it and Empire Steel, according to which Empire Steel agreed to secure insurance coverage for Gilbane as an additional insured. Empire also agreed to “indemnify and hold harmless” Gilbane and all of its agents for any losses caused by Empire, regardless of whether those losses were caused in part by Gilbane.
Admiral denied coverage under the policy to Gilbane for reasons not relevant here. Parr and Gilbane eventually settled the lawsuit, and Gilbane filed an action for declaratory judgment and breach of contract against Empire and Admiral, seeking a declaration that Admiral had a duty to defend and indemnify it. The parties filed competing motions for summary judgment. The district court granted Gilbane’s motion as to the duty to defend but initially denied it as to the duty to indemnify because of outstanding factual issues. Later, the district court held a trial by written submission on stipulated facts. It found that Parr had tripped while climbing down a ladder carrying an extension cord, and his feet had gotten tangled in the cord. The court determined that Admiral had a duty to indemnify because a jury would have found Parr or Empire at least 1% responsible for Parr’s injuries. Admiral appealed.
II. Standard of Review.
We review a district court’s grant of summary judgment
de novo,
applying the same legal standards that the district court applied, and we view the evidence in the light most favorable to the nonmoving party.
Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC,
III. Interpreting Insurance Policies in Texas.
“In this diversity action, we must apply Texas law as interpreted by Texas state courts.”
Mid-Continent Cas. Co. v. Swift Energy Co.,
Under Texas law, an insurer may have two responsibilities relating to coverage — the duty to defend and the duty to indemnify.
See D.R. Horton-Tex., Ltd. v. Market Int’l Ins. Co.,
IV. The Duty to Defend.
In order to decide whether Admiral owed Gilbane a duty to defend under the policy, we must consider two issues: (1) whether Gilbane qualifies as an additional insured under the policy, and (2) whether, under Texas’s strict eight-corners rule, the facts alleged in the underlying Parr lawsuit are sufficient to trigger Admiral’s duty to defend Gilbane. An affirmative answer to both is required to affirm the district court’s determination that Admiral had a duty to defend Gilbane. Gilbane bears the burden on each of these issues.
Canutillo Indep. Sch. Dist. v. Nat’l Union Fire Ins. Co.,
A. Additional Insured Status.
Initially, we must address whether Gil-bane qualifies as an additional insured under the CGL policy, which is issued solely to Empire as a named insured. According to the policy, a party is an additional insured if coverage “is required by written contract or written agreement that is an ‘insured contract.’ ” “Insured contract” is a commonly used term of art in Texas insurance law, usually defined by the insurance policy to mean a separate contract that acts as insurance.
See Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s London,
Admiral argues that the TCA is not an insured contract because its indem
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nity provision is unenforceable under Texas law, and therefore Empire never actually assumed any tort liability. Because indemnity provisions effect an extraordinary result — “exculpating] a party from the consequences of its own negligence” before that negligence even occurs — Texas imposes a fair notice requirement.
Dresser Indus., Inc. v. Page Petro., Inc.,
We assume, without deciding, that the TCA’s indemnity provision is unenforceable under Texas law. We therefore must decide whether the TCA can still be an insured contract under the policy. Although the Texas Supreme Court has never addressed this precise issue, it is largely resolved by our opinion in
Swift Energy Co.,
Indeed, our holding in
Swift
is consistent with Texas case law. The Texas Supreme Court has declined to apply requirements for indemnification clauses to additional insured provisions, noting that “the express negligence doctrine in Texas has been applied only to indemnity provisions, not insurance-shifting provisions.”
Getty Oil Co. v. Ins. Co. of N. Am.,
Here, as in Swift, Admiral’s argument relies on the policy language defining an insured contract as one that “assume[s] the tort liability of another party,” and concludes that an unenforceable provision does not actually assume liability. 2 However, as we explained in Swift, the additional insured question turns not on enforceability, but on whether Empire Steel agreed to “assume the tort liability of another party.” In the TCA, Empire Steel contracted not only to indemnify Gilbane, but also to secure insurance on its behalf; by doing so, it agreed to assume Gilbane’s tort liability. That provision is not rendered void by the indemnity provision, even if it is unenforceable. As such, Empire Steel agreed to assume Gilbane’s tort liability, and Gilbane qualifies as an additional insured.
B. Whether the Pleadings Triggered the Duty to Defend.
Having determined that Gilbane is an additional insured, we must consider whether the pleadings in the underlying lawsuit are sufficient to trigger Admiral’s duty to defend under the policy. In other words, we must decide whether the pleadings sufficiently allege that Empire or someone acting on its behalf, including Parr, caused Parr’s injuries.
1. Texas’s eight-comers rule.
Texas strictly follows the “eight-corners rule,” meaning the duty to defend may only be determined by the facts alleged in the petition and the coverage provided in the policy.
Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co.,
The eight-corners doctrine “strictly circumscribe[s]” a court’s analysis of the duty to defend.
D.R. HoHom-Tex.,
The Texas Supreme Court has recently reiterated that a “policy imposes no duty to defend a claim that might have been alleged but was not, or a claim that more closely tracks the true factual circumstances surrounding the third-party claimant’s injuries but which, for whatever reason, has not been asserted.”
Pine Oak Builders,
2. The policy.
We next consider the scope of coverage in the Admiral policy. In doing so, we examine the policy as a whole to ascertain the parties’ true intent.
Utica Nat’l Ins. Co.,
Gilbane argues that our interpretation of the policy should turn on the phrase “with respect to,” which has been interpreted as requiring less than proximate cause.
Evanston Ins. Co.,
Gilbane’s argument fails, however, when we examine the policy at issue in this case as a whole. Unlike in
Evanston,
the policy here explicitly requires that the injuries be “caused, in whole or in part, by” Empire. Moreover, the Texas Supreme Court has defined “caused by” as requiring proximate causation.
Utica Nat’l Ins. Co.,
3. The petition.
We turn now to the facts alleged in the pleadings. Parr’s Third Amended Petition alleges only one cause of his injuries: “[Parr’s] injuries were brought to occur, directly and proximately by reason of the negligence of the Defendants herein (the ‘Gilbane Defendants’).” Specifically, it alleges:
[T]he Gilbane Defendants failed to keep the construction site in a clean and functional condition. During the month of January 2007 the Houston area received large amounts of rainfall. As a result of this rainfall, the construction site accumulated large amounts of mud. This mud was tracked in from the surrounding area into the building under construction. As a result of the mud being tracked inside, the work area became slippery and hazardous. The Gilbane Defendants had actual notice of the danger caused by the mud from e-mails and other information given to them by their subcontractors. Despite the Gilbane Defendants’ knowledge of the dangers posed by the mud, these Defendants took no action to correct the problem, and as a result, Plaintiff slipped and fell causing his injuries____ [T]he Gilbane Defendants controlled the construction elevator on the jobsite .... Despite the fact that the construction workers worked until five o’clock each day, the Gilbane Defendants sent the elevator operator home around four o’clock. Due to the fact that the elevators were left unmanned and useless after the elevator operator went home, Plaintiff was forced to walk down the ladder where he ultimately slipped and fell.
In deciding that Admiral had a duty to defend, the district court characterized the petition as stating that “the injuries occurred when Parr was walking down the ladder with muddy boots,” which it considered sufficient to implicate Parr’s contributory negligence. Contrary to that characterization, however, the petition does not allege that Parr climbed down the ladder with “muddy boots.” Rather, it alleges that Gilbane’s negligence caused the work area to become “slippery and hazardous,” causing Parr’s injuries.
Gilbane argued before the district court, as it does here, that because Parr or Empire could potentially be found contributorily negligent at a later trial, inferring facts to support the plaintiffs contributory negligence does not run afoul of the eight-corners rule. The district court accepted that argument, determining, “After reviewing only the eight-corners of the petition and the Admiral policy, the court cannot say that Parr himself, acting on behalf of Empire Steel in the course of his job, was not possibly a contributing, proximate cause of his injuries.” In other words, it determined that the pleadings did not conclusively rule out Parr’s negligence; it was possible a jury could eventually find that Parr caused his own injuries.
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Such a construction, however, improperly shifts the burden of proof, requiring the party disputing coverage to establish that the pleadings
do not
potentially support a covered claim. Although the Texas Supreme Court has held that an insurer has a duty to defend “if a plaintiffs factual allegations potentially support a covered claim,” it has never applied the “potentiality” standard to deviate from the eight-corners rule.
Zurich Am. Ins. v. Nokia, Inc.,
Likewise, the Texas Supreme Court has held that, even applying the potentiality standard, courts cannot “imagine factual scenarios” that would trigger coverage.
Nat’l Union Fire Ins. Co.,
Applying the correct standard, the allegations in the pleadings do not implicate either Parr’s or Empire Steel’s fault. Indeed, even the portion of the petition relied on by the district court alleges that Parr’s injuries were caused only by Gil-bane: “Despite the Gilbane Defendants’ knowledge of the dangers posed by the mud, these Defendants took no action to correct the problem, and as a result, Plaintiff slipped and fell causing his injuries.” Simply put, the petition does not allege any facts suggesting that Parr’s own negligence could have caused his injuries.
Nor does the petition allege that Empire caused Parr’s injuries. Indeed, the only mention of Empire in the pleadings is, “Plaintiff was an employee of Empire Steel Erectors, L.P., performing work under a contract between Empire Steel Erectors, L.P. and Gilbane .... ” In its brief, Gil-bane concedes that the requisite language is not in the pleadings, recognizing “Parr’s petition’s silence as to any acts or omissions of Empire.” Limiting our review to the face of the petition, as we must, it does not affirmatively allege any facts implicating the negligence of either Empire or Parr, and Admiral has no duty to defend.
*600 k. Should we make an exception to the eight-comers rule ?
Gilbane nonetheless asks us to create an exception to the strict eight-corners rule— even though the Texas Supreme Court has never done so — that would allow us to consider facts not alleged in the petition. The Texas Supreme Court has made clear that a “policy imposes no duty to defend ... a claim that more closely tracks the true factual circumstances surrounding the third-party claimant’s injuries but which, for whatever reason, has not been asserted.” Pine Oak Builders, 279 S.W.3d at 655-56 (emphasis added). Employing that principle, we decline to look outside the petition as requested by Gilbane.
First, Gilbane asks us to create an exception to the eight-corners rule because, it argues, a plaintiff would never allege his own negligence. It therefore argues that we should infer that Parr’s negligence would be implicated at trial. Gilbane argues that Texas’s contributory negligence statute, which requires that the trier of fact determine the percentage of responsibility for multiple parties, including for each claimant, automatically implicates a plaintiffs own negligence. See Tex. Civ. Prac. & Rem.Code § 33.003(a). Thus, under this logic, a plaintiff would be assumed to be contributorily negligent for purposes of a duty to defend regardless of whether any negligence is alleged.
Gilbane’s argument is contrary to Texas law. A plaintiffs negligence is not automatically implicated in every case. Texas does not require the trier of fact to consider contributory negligence unless that allegation is in the pleadings and the evidence presented at trial. See Tex.R. Civ. P. 278 (“The court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence.”). In fact, section 33.003(b) mandates that a plaintiffs negligence will not be submitted to the jury “without sufficient evidence to support the submission.” Tex. Civ. Prac. & Rem.Code § 33.003(b). As such, Texas’s contributory negligence statute has no bearing on the duty to defend.
Moreover, the Texas Supreme Court recently recognized that if it were to create an exception to the eight-corners rule, it would do so only “ ‘when it is initially impossible to discern whether coverage is potentially implicated
and
when the extrinsic evidence goes solely to a fundamental issue of coverage which does not overlap with the merits of or engage the truth or falsity of any facts alleged in the underlying case.’ ”
GuideOne Elite Ins. Co.,
Second, Gilbane argues that we should go outside the eight corners of the pleadings and policy in this case because Parr could not plead Empire’s negligence without triggering workers’ compensation issues. Gilbane recognizes the “silence” in the pleadings as to Empire’s negligence but asks that we disregard it because it “indicated] not that Empire committed no acts or omissions, but only that Empire is statutorily immune to suit.” Importantly, however, there is no allegation of a workers’ compensation policy in the pleadings,
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and “[fjacts outside the pleadings, even those easily ascertained, are ordinarily not material to the determination.”
Liberty Mut. Ins. Co. v. Graham,
The Texas Supreme Court has refused to recognize an exception to the eight-corners rule even when everyone involved in the suit knows the true facts.
See Pine Oak Builders,
V. The Duty to Indemnify.
Next, we consider whether Admiral owes a duty to indemnify under the CGL policy. The duty to indemnify is separate and distinct from the duty to defend.
Zurich Am. Ins. Co.,
The district court found that Parr was injured when he slipped while descending a ladder carrying an extension cord. He told a co-worker immediately after he fell that his “feet got wrapped up in the extension cord.” The district court concluded that “Parr’s own conduct was a contributing proximate cause of his damages claimed in the Underlying Lawsuit” and that “[a] jury in the Underlying Lawsuit would have found Michael Parr or his employer, Empire Steel, 1% or more responsible for causing the occurrence and/or injuries at issue.” Thus, under the terms of the policy, the district court concluded that Admiral had a duty to indemnify Gil-bane.
Admiral does not argue that the district court erred in making those findings. Rather, it argues only that there was no duty to indemnify Gilbane because the TCA is not an insured contract, and Gil-bane therefore does not qualify as an additional insured. As explained above, supra Part IV.A., Gilbane does qualify as an additional insured. Therefore, the district court did not clearly err in determining *602 that Admiral owes Gilbane a duty to indemnify for the cost of its settlement with Parr. 4
VI. Conclusion.
Accordingly, we REVERSE the summary judgment on the duty to defend and AFFIRM the judgment on the duty to indemnify. We remand for proceedings consistent with this opinion.
Notes
. Parr eventually settled his lawsuit against Baker Concrete, and Baker is not a party to this appeal.
. In support of its argument to the contrary, that a contract can only be an insured contract if it is enforceable, Admiral cites two unreported cases applying Texas law, neither from the Texas Supreme Court or this court,
see Tri-State Ins. Co. v. Rogers-O'Brien Const. Co.,
No. 05-95-01639-CV,
. We recognize that this policy presents a seemingly difficult hurdle for additional insureds to trigger coverage while navigating difficult workers' compensation and contributory negligence issues. Nonetheless, it is not our place to create exceptions where the Texas Supreme Court has not shown that it would. As a practical matter, however, we observe that parties sometimes amend their pleadings to trigger coverage on the verge of settlement.
See, e.g., Huffhines,
. Although this may seem like an unusual result, where there is no duty to defend but the narrower duty to indemnify is triggered, the Texas Supreme Court has considered just this situation. In
D.R. Horton-Tex.,