duty to defend, there was no duty to indemnify, the Texas Supreme Court recently held that the duty to indemnify is independent from the duty to defend and an insurer may have a duty to indemnify even if a duty to defend never arises. Id. at 744. The duty to indemnify “depends on the facts proven and whether the damages caused by the actions or omissions proven are covered by the terms of the policy.” D.R. Hortortr-Tex., Ltd., 300 S.W.3d at 744. Typically, the court considering the coverage dispute will consider evidence needed to establish whether there was coverage in the underlying suit, particularly if the underlying case is resolved without a trial on the merits. Id.; see also Nat’l Union Fire Ins. Co. of Pittsburgh, Penn. v. Puget Plastics Corp., 532 F.3d 398, 404 (5th Cir.2008) (<HOLDING>). The trial court is authorized to make factual
holding that a trial court can only consider admissible evidence in ruling on a motion for summary judgment holding that entry of judgment in the underlying litigation does not moot an appeal from a denial of a motion to intervene if one of the parties keeps the underlying litigation live by pursuing an appeal holding that the trial court can consider evidence regarding facts required to determine coverage that were not adjudicated in the underlying litigation holding that court can consider inadmissible evidence in the context of a motion for preliminary injunction holding in a case considering whether the trial court should have conducted a competency hearing sua sponte that an appellate court may only consider those facts which were before the court when the trial commenced