          Case: 19-14508   Date Filed: 07/23/2020   Page: 1 of 10



                                                     [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 19-14508
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 3:18-cv-01392-TKW-EMT



BBG DESIGN BUILD, LLC,

                                             Plaintiff - Appellant,

PATRICIA ARMOR,

                                             Plaintiff - Cross Claimant,

                                 versus


SOUTHERN OWNERS INSURANCE
COMPANY,

                                             Defendant - Cross
                                             Defendant - Appellee.
                Case: 19-14508       Date Filed: 07/23/2020       Page: 2 of 10



                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________
                                    (July 23, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BLACK, Circuit
Judges.

PER CURIAM:

       BBG Design Build, LLC (BBG) appeals the district court’s grant of

summary judgment in favor of Southern Owners Insurance Company (Southern

Owners) in BBG’s action alleging Southern Owners breached its duty to defend

BBG in an underlying negligence action (underlying lawsuit) brought by Patricia

Armor. BBG contends the district court erred in looking outside the four corners

of the amended complaint and the insurance policy in determining Southern

Owners’ duty to defend. After review,1 we affirm the district court because we

agree that Southern Owners had no duty to defend BBG in the underlying lawsuit.

                                    I. BACKGROUND




       1
          We review “the district court’s disposition of cross-motions for summary judgment de
novo, applying the same legal standards used by the district court, viewing the evidence and all
factual inferences therefrom in the light most favorable to the non-movant, and resolving all
reasonable doubts about the facts in favor of the non-moving party.” Am. Bankers Ins. Grp. v.
United States, 408 F.3d 1328, 1331 (11th Cir. 2005).
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      Southern Owners issued BBG a general commercial liability policy that was

in effect from July 2, 2014, to July 2, 2015. The policy provided that Southern

Owners had a duty to both defend and indemnify BBG for covered losses.

      In 2014, BBG was working as the general contractor on a renovation project

at Shelter House, a domestic violence resource center in Ft. Walton Beach where

victims received services and resources including temporary lodging. Patricia

Armor worked part-time with the Shelter House as a victim advocate. Armor

asserted that on or about December 7, 2014, she sustained “bodily injury” from

contact with “construction debris” at the Shelter House. She sued BBG for those

injuries in the Circuit Court of Okaloosa County, Florida. In the operative First

Amended Complaint, Armor claimed BBG was negligent in managing the

construction site by failing to ensure proper controls and protections were in place

to contain “construction debris.” The First Amended Complaint provided no

definition of “construction debris” nor did it further describe Armor’s “bodily

injury.”

      Southern Owners refused to defend or indemnify BBG for the underlying

lawsuit based on the pollution exclusion in the policy. The policy’s pollution

exclusion denies coverage for “‘[b]odily injury’ or ‘property damage’ which would

not have occurred in whole or part but for the actual, alleged or threatened

discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any


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time.” The policy defines “pollutants” as “any solid, liquid, gaseous or thermal

irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis,

chemicals and waste. Waste includes materials to be recycled, reconditioned or

reclaimed.”

      BBG filed a breach of contract action against Southern Owners in the Circuit

Court of Okaloosa County, Florida. Southern Owners removed the case to federal

court on the basis of diversity jurisdiction. Southern Owners answered and

asserted the policy’s pollution exclusion as a defense to the alleged breaches of

contract. Later, Southern Owners and BBG filed cross motions for summary

judgment.

      In its motion for partial summary judgment, BBG argued Southern Owners

breached the policy by refusing to provide BBG a defense in the underlying

lawsuit when Armor’s First Amended Complaint did not clearly and unequivocally

plead facts that fit “solely and entirely” within the policy’s pollution exclusion.

BBG contended the district court could not reach beyond the four corners of the

First Amended Complaint in making that determination.

      In its motion for summary judgment, Southern Owners asserted it owed

BBG no duty to defend because Armor’s original Complaint and First Amended

Complaint alleged facts that fell squarely within the pollution exclusion. However,

if the district court did not agree the First Amended Complaint alleged facts that


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fell within the exclusion, Southern Owners insisted this case fit into the exceptional

line of cases that allows a court to consider facts outside the operative complaint in

deciding the duty to defend. To support this argument, Southern Owners relied on

the original Complaint, a pre-suit demand letter Armor’s attorney sent to Southern

Owners, and Armor’s deposition testimony in the underlying case.

       The district court granted Southern Owners’ motion for summary judgment

and denied BBG’s partial motion. The district court agreed with Southern Owners

that it could consider extrinsic evidence outside of the First Amended Complaint to

analyze the duty to defend and found no duty existed.2 The district court

considered the allegations in Armor’s original Complaint and, by comparing it to

the First Amended Complaint, concluded the First Amended Complaint’s “more

general allegations” were an attempt to plead into coverage. The district court

reasoned that “the amended complaint cannot be fairly read to allege” that Armor

was injured by “materials that would not typically be considered irritants or

contaminants, such as lumber, nails, bricks, or sheets of glass.” The district court

concluded that at some point in legal proceedings “common sense should prevail,

which is in essence the basis for the limited exception to the four corners rule.”




       2
         Southern Owners also moved for summary judgment on the duty to indemnify issue,
which the district court also granted. BBG does not appeal the district court’s ruling on the duty
to indemnify.


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                                    II. DISCUSSION

       Under Florida law, 3 “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 whether this duty exists, “the trial court is

confined to the allegations in the complaint.” State Farm Fire & Cas. Co. v.

Tippett, 864 So. 2d 31, 33 (Fla. 4th DCA 2003). Thus, courts generally determine

the existence of a duty to defend based solely on the allegations in the complaint,

with all doubts resolved in favor of the insured. Jones, 908 So. 2d at 443. The

duty to defend is distinct from and broader than the duty to indemnify, meaning

that insurers are obligated to defend even if the allegations in the complaint are

inconsistent with the actual facts or meritless. See id.

       If we confine our analysis to the allegations in the operative First Amended

Complaint, Southern Owners had a duty to defend BBG in Armor’s underlying

suit. The allegations in the First Amended Complaint were that Armor suffered

bodily injury because of BBG’s negligence and BBG’s failure to train its

employees to prevent construction debris from escaping the renovation activities.

Armor never defines construction debris or bodily injury, so it is impossible to tell



       3
         The parties agree the issue framed by the cross motions for summary judgment is
governed by Florida contract law.
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what type of construction debris escaped the renovation activities, or what type of

bodily injury Armor suffered from BBG’s alleged negligence. The First Amended

Complaint, on its own, cannot be read to allege actions consistent with the policy’s

pollution exclusion.

      This Court has recognized a limited exception to the four corners rule,

however, and stated that Florida courts have found “in special circumstances, a

court may consider extrinsic facts if those facts are undisputed, and, had they been

pled in the complaint, they clearly would have placed the claims outside the scope

of coverage.” Stephens v. Mid-Contintent Cas. Co., 749 F.3d 1318, 1323 (11th

Cir. 2014) (citing, inter alia, Nationwide Mut. Fire Ins. Co. v. Keen, 658 So. 2d

1101 (Fla 4th DCA 1995)). Such cases are “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.” Id. (quotations

omitted). Further, “[t]he right to an early resolution of a coverage issue should

turn on the merits—on whether a policy exclusion applies and not on creative

pleading.” State Farm Fire & Cas. Co. v. Higgins, 788 So. 2d 992, 1005 (Fla. 4th

DCA 2001).

      Keen involved an underlying complaint that omitted a reference to an

uncontroverted fact, that, if pled, would have placed the claim clearly outside the

scope of coverage. The plaintiff was piloting a watercraft which used an engine


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that was too powerful to be covered under the insurance policy and conceded that

the craft was more powerful than coverage afforded shortly after the incident. See

Keen, 658 So. 2d at 1102-03. That concession was also backed up by

corroborative evidence. Id. at 1103. However, the underlying complaint did not

allege anything about the horsepower of the craft. Id. The court held that “if

uncontroverted evidence places the claim outside of coverage, and the claimant

makes no attempt to plead the fact creating coverage or suggest the existence of

evidence establishing coverage, we think the carrier is relieved of defending.” Id.

      The instant case is one of those exceptional cases where the actual facts

place the claims outside the scope of coverage. See Stephens, 749 F.3d at 1323.

The First Amended Complaint omitted a “crucial, undisputed fact in a patent

attempt to ‘plead into coverage.’” Wilson ex rel. Estate of Wilson v. Gen. Tavern

Corp., 469 F. Supp. 2d 1214, 1220 (S.D. Fla. 2006). Before Armor filed the First

Amended Complaint, Southern Owners had pre-suit knowledge of uncontroverted

facts that placed Armor’s claims outside the scope of the Policy’s coverage. On

February 17, 2016, Southern Owners received a pre-suit demand package from

Armor’s attorney that included a letter asserting Armor was injured after being

“exposed to hazardous fumes and dust” due to BBG’s remodeling activities at the

Shelter House. The demand package also referenced Armor’s medical records

where she reported being exposed to fiberglass at a construction site at work and


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was diagnosed with bronchitis due to fiberglass exposure. Based on the assertions

contained in the demand letter, which were corroborated by Armor’s medical

records, Southern Owners had knowledge that Armor was claiming bodily injury

which would not have occurred in whole or part but for the alleged release or

escape of pollutants. These facts were uncontroverted and remain so. In her initial

complaint, she alleged that while BBG was carrying out renovation activities at

Shelter House, “[s]ignificant amounts of construction debris” including “dust and

airborne fiberglass” were placed into the air without proper controls or protections,

which caused Armor respiratory illness. While the First Amended Complaint

attempts to plead into coverage by not describing the “construction debris” or her

“bodily injury,” it was undisputed that Armor’s alleged injuries included bronchitis

resulting from fiberglass exposure, as was made clear by Armor’s demand letter,

initial complaint, and medical records.

      The policy’s pollution exclusion denies coverage for “‘[b]odily injury’ or

‘property damage’ which would not have occurred in whole or part but for the

actual, alleged or threatened discharge, dispersal, seepage, migration, release or

escape of ‘pollutants’ at any time.’” The policy defines “pollutants” as “any solid,

liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot,

fumes, acids, alkalis, chemicals and waste. Waste includes materials to be

recycled, reconditioned or reclaimed.”


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      We agree with the district court that there is no ambiguity in the policy’s

pollution exclusion, and it clearly encompasses the construction debris of the sort

of which Armor complained—fiberglass particulates and other bits of dust in the

air as a result of construction work—which caused irritation to her lungs, eyes, and

skin when it contaminated the air she breathed.

      Thus, this case is one of the rare cases where uncontroverted facts place the

claim outside the scope of coverage, and the First Amended Complaint is an

attempt to plead into coverage despite the uncontroverted facts. Southern Owners

did not breach its duty to defend BBG in the underlying lawsuit, and the district

court is affirmed.

      AFFIRMED.




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