The Eleventh Circuit Court of Appeals recognized an exception to the rule that courts should look only at the underlying complaint to determine an insured’s duty to defend. In Composite Structures v. Continental Ins. Co., 2014 WL 1069253 the Plaintiff filed a declaratory judgment action against the defendant insurance carrier for defense and indemnity under a CGL policy. Both parties filed summary judgment motions.
The carrier claimed that notice required by the policy had not been timely. The underlying complaint did not allege when the complaint was tendered by plaintiff to the carrier. Plaintiff conceded that its written notice to the carrier was untimely under the CGL policy but argued that because the underlying complaint was silent on this point, there was a possibility of coverage and therefore the carrier had a duty to defend.
The Court of Appeals affirmed the summary judgment which had been granted to the defendant and held that under Florida law the carrier was permitted to determine the uncontroverted date of the written notice with respect to its duty to defend because the date of written notice to an insurance carrier is not a fact which normally would be alleged in the underlying complaint.
(This unpublished opinion was cited because of the departure from the general rule and also the fact that the defendant has petitioned the Court to publish the opinion).