February 04, 2014 Articles

Insurance 101: Insurer’s Use of Extrinsic Evidence for Duty to Defend in Florida

Liability insurance may entitle an insured to a defense and to indemnification for a third-party claim made against it. In Florida, an insurer's duty to defend its insured against such a claim is separate and apart from the duty to indemnify the insured

by Andy Dogali and Jacqueline H. Palik

Liability insurance may entitle an insured to a defense and to indemnification for a third-party claim made against it. In Florida, an insurer's duty to defend its insured against such a claim is separate and apart from the duty to indemnify the insured. Trizec Properties, Inc. v. Biltmore Construction Co., 767 F.2d 810, 811-12 (11th Cir.1985). It is a frequently stated proposition that the duty to defend is determined under the “eight corners rule, which refers to the comparison of the “four corners’ of the underlying complaint with the ‘four corners’ of the insurance policy.” Colony Ins. Co. v. Barnes, 410 F. Supp. 2d 1137 (M.D. Fla. 2005). An insurer has no duty to defend a suit against an insured where the complaint upon its face alleges a state of facts that fails to bring the case within the coverage of the policy. Capoferri v. Allstate Ins. Co., 322 So. 2d 625, 627 (Fla. Dist. Ct. App. 1975). Likewise, if the factual allegations of the complaint fall within the exclusions of the policy, then an insurer has no duty to defend. International Surplus Lines Ins. Co. v. Markham, 580 So. 2d 251 (Fla. Dist. Ct. App. 1991).

In contrast to the duty to defend, the duty to indemnify is determined by the facts as they are developed at trial. E.g.Stephens v. Horne, 325 So. 2d 459, 462 (Fla. Dist. Ct. App. 1975). Florida courts must look beyond “the artfulness of the pleadings” to determine whether the duty to defend arises, regardless of how the claim is “creatively characterized by the plaintiff.” H.C. Waterford Properties, LLC v. Mt. Hawley Ins. Co., 2009 U.S. Dist. LEXIS 81355 (S.D. Fla. Aug. 21, 2009); State Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 35 (Fla. Dist. Ct. App. 2003) (use of buzz words in complaint will not trigger coverage). These principles are well-established.

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