Can extrinsic facts be considered in evaluating the duty to defend?

Under Florida law, “an insurer’s duty to defend its insured against a legal action arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage.” Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So. 2d 435, 442-43 (Fla. 2005). In determining the duty to defend, the court is typically confined to the allegations contained within the four corners of the complaint. State Farm Fire & Cas. Co. v. Tippett, 864 So. 2d 31, 33 (Fla. 4th DCA 2003).

However, the Florida courts have recognized a limited exception to the four corners rule in special circumstances when the extrinsic facts are undisputed and had they been pled in the complaint, they clearly would have placed the claims outside the scope of coverage. BBG Design Build, LLC v. S. Owners Ins. Co., 820 F. App’x 962, 965 (11th Cir. 2020), citing Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d 1101 (Fla 4th DCA 1995)); see also Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014).

Thus, courts in Florida will allow consideration of an extrinsic fact in determining the duty to defend if 1) the fact is undisputed and would not normally be alleged in the complaint and/or 2) the fact is undisputed and had the fact been plead it would have clearly placed the claim outside of coverage.

However, the Eleventh Circuit has cautioned that “such cases are best viewed ‘as exceptional cases in which courts have crafted an equitable remedy when it is manifestly obvious to all involved that the actual facts placed the claims outside the scope of coverage.’” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014)(quoting First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 Fed. App’x 777, 786 (11th Cir. 2008)). This exception is aimed at preventing a plaintiff from omitting “crucial, undisputed facts in a patent attempt to plead into coverage.” BBG Design Build, LLC v. S. Owners Ins. Co., 820 F. App’x 962, 965 (11th Cir. 2020) (quoting Wilson ex rel. Estate of Wilson v. Gen. Tavern Corp., 469 F. Supp. 2d 1214, 1220 (S.D. Fla. 2006)

If there is any dispute as to the extrinsic fact, then the court will not allow consideration of the fact in analyzing the duty to defend. See Empire Fire & Marine Ins. Co. v. Span, No. 19-61102-CIV, 2021 WL 2255127, at *7 (S.D. Fla. June 3, 2021)(Dispute as to whether insured was intoxicated triggering policy exclusion, thus, court would not consider extrinsic evidence regarding intoxication).