Eleventh Circuit Finds No Duty To Defend Where Allegations Only Hypothetically Bring Suit Within Coverage

The U.S. Eleventh Circuit Court of Appeals, applying Florida law, recently held that allegations in a complaint that only hypothetically support a negligence claim against an insured, but which did not actually plead negligence against the insured, did not give rise to a duty to defend. Selective Ins. Co. of the Southeast v. William P. White Racing Stables, Inc., 2017 WL 6368843 (11th Cir. Dec. 13, 2017).

A professional jockey sued his employer, the insured, after the jockey was injured in an accident when the horse he was riding collapsed. The jockey asserted claims against the insured under the Florida Workers' Compensation Statute for failure to cooperate in investigating and prosecuting the jockey's claims against a third-party tortfeasor and for spoliation of evidence. The jockey alleged negligence against other defendants but did not assert a negligence claim against the insured. The insured sought coverage under its liability policy. The insurer sought a