The Four Corners Rule Strikes Again to Require Defense Not Owed: Careful Pleading Requires Defense When Evidence Does Not.

• Author: Zalma, Barry
• Position: [ON MY RADAR]

Courts like those in Florida that apply the four corners rule of insurance contract interpretation of the duty to defend allow a plaintiff's lawyer to skillfully draw a complaint that will require the defendant's insurer to defend even when it is clear from existing evidence that there is no coverage. Although Florida allows an insurer to bring extrinsic evidence to the court when seeking to defeat an obligation to defend, that ability is severely limited by Florida law.

In Advanced Systems, Inc., Etc. v. Gotham Insurance Company, Etc., No. 3D18-1744, Third District Court of Appeal State of Florida (April 17, 2019) careful--perhaps devious--pleading was the support used by Advanced Systems, Inc. to obtain review of the trial court's determination that Gotham Insurance Company had no duty to defend or indemnify Advanced Systems under a commercial general liability policy.

BACKGROUND

This case arose after a foam fire suppressant system in an aircraft hangar failed and resulted in damage to several airplanes. Orion Jet Center LLC, the hangar's owner, filed suit against Moss & Associates, LLC, the general contractor that constructed the aircraft hangar. Moss brought a third-party complaint against Advanced Systems, the subcontractor that installed the hangar's fire suppression system. Advanced Systems, in turn, tendered defense to Gotham, its insurer.

Gotham insured Advanced Systems with a commercial general liability policy under its Fire Suppression Insurance Program (the "Policy"). The policy excluded liability for pollution caused damage. The Policy defined "pollutants" as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste." The Policy did not define "irritant," "contaminant," or "chemicals."

Because Gotham did not respond to the tender of defense, Advanced Systems filed a complaint for declaratory judgment against Gotham. Both filed motions for partial summary judgment on the issue of Gotham's duty to defend and indemnify.

In support of its motion, Gotham attached the declaration of Christopher Ward, a claims specialist. Mr. Ward attached a copy of the Material Safety Data Sheet ("MSDS") for Chemguard C2, which Gotham claims is the name of the foam fire suppressant that was released into the aircraft hangar. Based on the MSDS, which details Chemguard C2's chemical composition, Gotham argued that the fire suppressant foam was a "pollutant" and therefore...