By Zachary Greening

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. Accordingly, the court, sua sponte, found the insurer had a duty to defend and granted summary judgment in favor of the insured.

The insurer then filed a motion to show cause and for reconsideration, arguing the factual record was not complete and a deposition of an insured’s representative would conclusively prove the underlying plaintiff was an employee of the insured. The court rejected the motions, finding that under the eight-corner rule, the court need only consider the policy and complaint at issue; And because the employment status was disputed, no exception to the eight-corner rule could apply. Because on the eight corners of the policy and complaint, there was no genuine issue of material fact as to the insurer’s duty to defend, the court granted summary judgment for the insured.

Under Florida law, when facts exist outside the complaint suggesting that a claimant is an “employee”, an insurer should be mindful that a court will likely not consider extrinsic evidence concerning the employment status to defeat a duty to defend unless those facts are clearly undisputed and not at issue in the underlying claim.

For more information about this article, please contact Zachary Greening at

About the Author

Zach Greening is an associate in the Insurance and Litigation Practice Groups. Zach focuses his practice in the areas of insurance coverage analysis and litigation. He has drafted coverage opinions, position letters and other coverage-related documents for insurance carriers. He handles a variety of coverage issues and policies, including general liability, commercial auto, umbrella policies and business owners liability, among others. He also has vast experience handling coverage litigation matters independently, including declaratory suits.