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1 Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 94-10409
Summary Calendar
___________________________
UNITED STATES FIRE INSURANCE CO.,
Plaintiff-Appellee,
VERSUS
MASSEY IRRIGATION & LIQUIDATION, INC.,
Defendant-Appellant,
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(3:93-CV-1692-R)
____________________________________________________
(November 3, 1994)
Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:1
In this declaratory judgment action, Massey Irrigation and
Liquidation, Inc. ("Massey") appeals the district court's grant of
summary judgment in favor of United States Fire Insurance Company
("U.S. Fire"). Because the petition in the underlying litigation
alleged facts which clearly exclude the loss from coverage under
Massey's policy, we affirm.

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I.
On April 22, 1991, Robert Vega was allegedly injured while
working on a sprinkler system manufactured by Lindsey Manufacturing
Co. ("Lindsey"). Massey allegedly performed repairs to the system
before Vega's accident. Vega and his wife filed a personal injury
action (the "Vega suit") against Massey in state court, alleging
that Massey was responsible for these inquiries because it was
negligent in the repair or modification of the Lindsey sprinkler.
Specifically, the Vegas alleged that Massey was negligent by:
(a) failing to recommend or provide adequate shields to
prevent clothing of persons from becoming snagged on the drive
shafts;
(b) failing to provide any warning or adequate warnings
concerning the hazards of removal;
(c) failing to recommend a shut-off switch in the vicinity of
the drive shaft to enable emergency turn-off of the motion
that powers the drive shaft; and
(d) using improper bolts or other replacement parts that were
not recommended by the manufacturer.
At the time of Vega's injury, U.S. Fire insured Massey under
Texas Commercial Package Insurance Policy No. 503 094707 1 (the
"Policy"), which requires U.S. Fire to defend Massey against any
suit seeking damages because of bodily injury or property damage to
which the insurance applies. U.S. Fire brought this action for
declaratory judgment pursuant to 28 U.S.C. § 2201, seeking a
declaration that it has no duty to defend or indemnify Massey
against the Vega suit. It subsequently moved for summary judgment,
contending that the Vegas' allegations were excluded under the
Policy.
U.S. Fire contended it provided no coverage for this accident
and owed no defense to Massey because of its "products-completed
operations hazard" exclusion. The Policy defines "products-

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completed operations hazard" as all such injuries or damages
"occurring away from premises you own or rent arising out of `your
product' or `your work.'" It further defines "your product" and
"your work" as follows:
14. "Your product" means:
a. Any goods or products, other than real property,
manufactured, sold, handled, distributed or
disposed of by:
(1) You;
(2) Others trading under your name; or
(3) A person or organization whose business or
assets you have acquired; and
b. Containers (other than vehicles), materials, parts
or equipment furnished in connection with such
goods or products.
"Your product" includes:
a. Warranties or representations made at any time with
respect to the fitness, quality, durability,
performance or use of "your product"; and
b. The providing of or failure to provide warnings or
instructions.
"Your product" does not include vending machines or other
property rented to or located for the use of others but
not sold.
15. "Your work" means:
a. Work or operations performed by you or on your
behalf; and
b. Materials, parts or equipment furnished in
connection with such work or operations.
"Your work" includes:
a. Warranties or representations made at any time with
respect to the fitness, quality, durability,
performance or use of "your work"; and
b. The providing of or failure to provide warnings or
instructions.
The district court granted U.S. Fire's motion for summary
judgment and held that U.S. Fire had no duty either to defend or
indemnify Massey because the Vegas' allegations "fall squarely"

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within the "unambiguous language" of the Policy's "products-
completed operations hazard" exclusion. Massey challenges that
order in this appeal.
II.
We review a grant of summary judgment de novo, "reviewing the
record under the same standards which guided the district court."
Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988).
Summary judgment is proper when no issue of material fact exists
that would necessitate a trial. Celotex Corp. v. Carrett, 477 U.S.
317, 324-25 (1986); Fed. R. Civ. P. 56(c). In determining whether
summary judgment was proper, we review all facts in the light most
favorable to the nonmovant. Walker, 853 F.2d at 358. Questions of
law are always decided de novo. Id.
Whether an insurer has a duty to defend an insured is a
question of state law. Travelers Indem. Co. v. Holman, 330 F.2d
142, 144 (5th Cir. 1964). In determining a duty to defend, Texas
courts follow the "eight corners" rule. Cluett v. Medical
Protective Co., 899 S.W.2d 822, 827-28 (Tex. App.--Dallas 1992,
writ denied). Under this rule, the court looks only to the
pleadings and the policy. Snug Harbor Ltd. v. Zurich Ins., 968
F.2d 538, 546 (5th Cir. 1992). The insurer has a duty to defend if
any allegation in the complaint is potentially covered by the
policy. Enserch Corp. v. Shand Morahan & Co., Inc., 952 F.2d 1485,
1492 (5th Cir. 1992).
On appeal, Massey focuses on Vega's allegations that Massey
failed to recommend or provide adequate shields or an emergency
shut-off switch. Massey's argument appears to be two-fold. First,

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it argues that providing services, such as repairs, does not
constitute a defective product and thus does not fall within the
"products-completed operations hazard" exclusion. Second, it
suggests that "failure to warn" claims fall outside a "products
hazard" exclusion if they are based on something other than a
defect in the product sold by the insured.
Massey cites several cases from other jurisdictions which have
interpreted products hazard and completed operations hazard
exclusions to apply only to injuries arising out of the sale or
manufacture of products as opposed to the rendering of services or
repairs. See, e.g., Chancler v. American Hardware Mut. Ins. Co.,
712 P.2d 542, 546 (Idaho 1985); Cooling v. United States Fidelity
and Guar. Co., 269 So.2d 294, 296 (La. App. 1972); see also
"Construction and Application of Clause Excluded from Coverage of
Liability Policy `Completed Operations Hazard,'" 58 A.L.R.3d 12, 28
[§ 3. Completed operations exclusion as not applicable to service
operations].
However, Texas courts have interpreted such exclusions to
include the rendering of a service. In Green v. Aetna Ins. Co.,
349 F.2d 919 (5th Cir. 1965), decided under Texas law, we held that
the exclusion includes rendition of a service. In Green, the
insured was sued for injuries suffered when a drill collar which it
had allegedly repaired broke. This court held that the insurer had
no duty to defend because the claim fell within the products hazard
exclusion. Id. at 923. In doing so, this court explicitly
rejected those cases from other jurisdictions which interpret
completed operations hazard exclusions to apply only to injuries

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arising out of the sale or manufacture of some product as opposed
to the provision of services. Id.
In Green, we relied on Pan Am. Ins. Co. v. Cooper Butane Co.,
300 S.W.2d 651 (Tex. 1957). In that case the insured was sued for
improper repair of a gas valve which allegedly caused the death of
two people. The Texas Supreme Court, without an extended
discussion held that the allegations against the insured fell
within the completed operations exclusion. The Court therefore
implicitly held that "operations" need not be tied to a product
which is manufactured, sold, handled or distributed by the insured
in order to make the "completed operations hazard" exclusion
operative. Id. at 655. Thus, under Texas law the completed
operations hazard includes rendition of services.
Massey next contends that Vega asserts in substance a
negligent failure to warn claim which is not precluded by the
"products--completed operations" exclusion. This argument ignores
the clear language of the policy which expressly defines "your
product" and "your work" to include "[t]he providing of or failure
to provide warnings or instructions." Massey relies on one Texas
case and several cases from other jurisdictions for the proposition
that an allegation of negligent failure to warn does not fall
within a "products hazard" exclusion. See Scarborough v. Northern
Assurance Co. of America, 718 F.2d 130 (5th Cir. 1989) (applying
Louisiana law); Chancler, 712 P.2d at 547; Cooling, 269 So.2d at
297-98; Hartford Mut. Ins. Co. v. Moorhead, 578 A.2d 492, 495-96
(Pa. Super. 1990) (citing cases); LaBatt Co. V. Hartford Lloyd's
Ins. Co., 776 S.W.2d 795 (Tex. App.--Corpus Christi 1989, no writ).

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2 Relying on Texas declaratory judgment cases, Massey also
argues that the district court lacked jurisdiction to declare that
U.S. Fire had no duty to indemnify Massey from the claims brought
by the Vegas. However, the federal courts are not controlled by
state procedural law in entertaining a declaratory judgment action.
See Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 674 (1950).
The Federal Declaratory Judgment Act allows this court to issue a
declaration only "in a case of actual controversy." Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937); 28 U.S.C. § 2201
(1988). The Supreme Court has held that such a controversy exists
where, as here, an insurer seeks a declaratory judgment that it was
not liable under its insurance policy to pay a judgment to be
rendered in a pending case. Maryland Casualty Co. v. Pacific Coal
& Oil Co., 312 U.S. 270, 272-74 (1941); see also Cincinnati Ins.
Co. v. Holbrook, 867 F.2d 1330, 1333 (11th Cir. 1989); Sears,
Roebuck & Co. v. American Mut. Liab. Ins. Co., 372 F.2d 435, 440
(7th Cir. 1967). The district court clearly had jurisdiction to
decide this controversy.
7
However, none of the insurance policies at issue in these cases
expressly included in the definition of "your product" or "your
work" the "failure to provide warnings or instructions."
Massey's "work" was the repair and modification of the
sprinklers. That work had been completed. We agree with the
district court that any claim that Massey failed to warn of the
need for certain devices which would make the sprinkler more safe
for use falls squarely within the exclusions for "products--
completed operations hazard" under the Policy. The district court
correctly concluded that coverage was excluded under U.S. Fire's
policy.2
III.
For the foregoing reasons, we affirm the district court's
grant of summary judgment in favor of U.S. Fire.
AFFIRMED.

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