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Compaq Computer Corp. v. St. Paul Fire and Marine Insurance Co.9/2/2003
and recommendations, resulting in extra expense and damage. Compaq argues that these claims suggest negligent, but not reckless or intentional, conduct.
Under Texas law, an insurer's duty to defend is triggered if any portion of a claim is "potentially" within the scope of the policy's coverage. See Westchester Fire Ins. Co., 64 S.W.2d at 612-13. However, Compaq relies on two Minnesota cases. In Ohio Cas. Ins. Co. v. Terrace Enters., Inc., 260 N.W.2d 450 (Minn. 1977), the supreme court held that a contractor's failure to follow the recommendation of an engineering lab and the contractor's own precautions that failed to protect the soil and concrete from the climate exhibited negligent—but not intentional—behavior. Id. at 452-53. Unlike the contractor in Ohio Casualty, who intended to reject the engineer's recommendation but did not intend the resulting damage, the class-action plaintiffs here alleged that Compaq knowingly and intentionally distributed a defective product and intended the resulting damage. Therefore, the reasoning in Ohio Casualty fails to support Compaq's claim.
Compaq's reliance on Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822 (Minn. 1980), is similarly misplaced. In Brown, the complaint alleged that the insured "did strike upon the head and body of [another] and caused the [other person] personal injuries." Id. at 825. The court held that this language was broad enough to include two causes of action, one for assault and battery and the other in negligence. Id. Here, however, the class-action plaintiffs made repeated allegations of "knowing" and "intentional" conduct on the part of Compaq. These allegations can only reasonably be construed to allege that Compaq acted intentionally. See Reinsurance Assoc. of Minn. v. Timmer, 641 N.W.2d 302, 312 (Minn. App. 2002) (concluding that the underlying complaint did not distinguish between intentional and negligent misrepresentation and could reasonably be construed to include both), review denied (Minn. May 14, 2002). We must be guided by the factual allegations asserted in the complaint, not by what could have been alleged. Nat'l Union Fire, 939 S.W.2d at 142. Therefore, we reject Compaq's attempt to read into the Thurmond and Sprung complaints a cause of action that was not specifically pleaded by the class-action plaintiffs.
Because the Thurmond and Sprung complaints alleged intentional conduct on the part of Compaq, and because intentional acts are excluded under the Tech E&O;and Tech GL agreements, we agree with the district court that St. Paul is not obligated to provide coverage. Therefore, the district court properly granted summary judgment in favor of St. Paul.
Affirmed.
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