In First Mercury Insurance Co. v. First Florida Building Corporation, 20-cv-1929 (M.D. Fla Jan. 3, 2023), the court rejected an insurer’s bid to have evidence considered outside the underlying complaint concerning the claimant’s employment status to determine the duty to defend.

This underlying suit involves a personal injury claim where the claimant sustained severe injuries while working at a construction site.

The insurer claimed there was no duty to defend or indemnify the insured because the underlying plaintiff was an employee of the insured, meaning the employer liability and workers’ compensation exclusions should apply.

After filing a declaratory action, the insurer argued the court should apply a ‘rare exception’ to the eight-corners rule and that the court should consider the extrinsic fact that the underlying plaintiff was an employee of the insured -- which was omitted from the underlying complaint.

The court refused to consider the extrinsic evidence, finding that the issue was ‘being actively contested in the underlying lawsuit.’ The court further found that even if the underlying plaintiff’s employment were not a contested fact, that evidence did not conclusively establish that either policy exclusion applied.